Probate Process – A General Timeline

Probate is the legal process of formally recognizing a will after a person dies, naming or validating an executor to administer the estate, and distributing assets to intended beneficiaries. It also requires paying the decedent’s outstanding debts and federal and state taxes.

Each state has different laws determining whether probate is necessary. Sometimes it is possible to expedite the process. The probate experience is unique, as no two wills are the same.

In general, the timeline of the probate procedure moves quickly if the estate has minimal assets and little debt. Larger estates can expect a process lasting anywhere from nine months to a few years. Keep in mind that the process may be lengthier if problematic family dynamics are at play.

An experienced estate planning attorney or probate lawyer can help guide your efforts in these more complex or contentious circumstances. During a time of grief, you may find that having a general probate timeline is of value as well. This can help manage your expectations and the various deadlines as you move through the process. Continue reading for an outline of how the process may unfold.

Prepare and File the Probate Petition (1-4 months)

Filing a probate petition requires a valid will and the decedent’s death certificate. Usually, the funeral home provides the death certificate. This document outlines the deceased person’s date of death, how the decedent died, and other key information.

The executor, or personal representative, sends an official notice of probate to beneficiaries or interested parties. Each state has specific requirements regarding the notification process.

If all beneficiaries agree, each party may sign a “waiver of process consent to probate” to speed the process. This consent form advises the court there are no issues with the will. It also demonstrates that the beneficiaries forfeit the right to challenge the will or its executor.

Usually, an executor sends a notice of probate within the first two months of the decedent’s passing. Some states require a notice of death published by the executor in the newspaper. The executor provides the funeral home with the decedent’s Social Security number. The funeral home then creates a legal death certificate.

An executor may prefer to purchase several death certificates for larger estates. They should also report the person’s death to the Social Security Administration. If the decedent received medical benefits, the executor must file a notice of death with the Department of Health and Human Services.

Provide Notice to Creditors (3-6 months)

Like all beneficiaries, all creditors must be aware of the decedent’s will. The executor of the estate notifies appropriate claim holders. They can do this via a formal notice to creditors. They may also send the notice to other firms, companies, or people to whom the decedent owed money.

Following court rules for notifying creditors is paramount.

In some cases, it can be a challenge to find details regarding the deceased’s outstanding debts. The executor may start by gathering any remaining bills or requesting a copy of the decedent’s credit report.

Payment of Debts and Fees (6-12 months)

As explained above, the decedent’s creditors receive notification of the individual’s death with a formal notice of death and notice to creditors. The executor must pay all professional and personal debts from the estate with estate funds. The estate is also responsible for filing the decedent’s state and federal income tax returns before the probate process can conclude.

Additionally, the process of probate itself costs the estate money. The executor is responsible for ensuring that the estate pays all fees and administration costs relating to probate. The fee structure can increase based on the length of time a will is in probate. So, the executor benefits by moving quickly and carefully.

Asset Inventory (6-12 months)

An inventory of the estate’s probate assets is a crucial part of the will since it becomes part of the official estate record. The task can be time-consuming, particularly if the estate’s records are in disarray. Most asset inventory will include:

• Bank accounts, including savings and checking accounts
• Property and real estate
• Stocks and bonds
• Retirement accounts
• Life insurance and annuities
• Luxury items of significant value, like jewelry, watches, art, and other collectibles
• Intellectual property, including patents, trademarks, copyrights, software databases, and design rights
• Online business ventures that produce income or have stand-alone value

Jointly owned real estate, property, vehicles, and financial accounts may transfer directly to the surviving owner or surviving spouse. (However, keep in mind that state laws vary.) Probate is also not required for IRAs with a beneficiary or other accounts with a pay-on-death designation.

Asset Distribution (9-18 months)

Before asset distribution, the estate’s executor should make every effort to pay all outstanding debts. When all creditor bills are paid and the remaining assets are accounted for, some state probate law dictates the distribution of assets occurs only after the probate hearing. Concluding the probate hearing first prevents the opportunity for a disgruntled beneficiary to threaten the will’s validity.

The Estate Closing (9-24 months)

Probate can conclude when all creditors are paid, taxes are filed, and assets are sold or distributed. After finalizing the executor’s duties, the probate court judge then issues the final order of discharge of the executor. This court action officially closes the estate.

All wills go through probate proceedings; however, it is not the only available option. Larger estate owners may prefer to protect the futures of their loved ones using trusts. Avoiding probate can prove advantages. This is because the process can be lengthy, complex, expensive, and is always a matter of public record.

Help With Estate Administration

An estate planning attorney can customize an estate plan and related legal documents for your family situation. They can advise you on trusts and other legal mechanisms to lessen the probate process. You may also consult them regarding whether your estate would be a candidate for an expedited process. Please note that the information outlined above serves as a general timeline for the probate process. All wills and state laws are different.

Please contact us with any questions or concerns at (408) 371-6000 or info@SowardsLawFirm.com.

For further information, check out the following estate planning-related articles:

• How to Get a Death Certificate After a Loved One Dies
• The Basics of Estate Administration
• Dying Intestate: What Happens If You Die Without a Will?
• Living Trust vs. Irrevocable Trust: What Is the Difference?