“Probate” is a term mostly used when discussing trust and estate law issues, which refers to the legal procedures that govern the distribution of a deceased individual’s estate (e.g., property, assets, and personal belongings) upon their death.
The probate process is usually handled by the local probate court. The court will be responsible for overseeing all related probate matters, such as establishing that a will is valid, assigning or ensuring there is an executor to manage the estate, and making sure that assets are properly distributed to the right beneficiaries.
In general, the probate process proceeds in the following manner:
- If the decedent had a will, then the will usually identifies an individual to become the executor or administrator of an estate. If there is no will or the will does not name someone to become executor, then the probate court will assign someone to the role.
- The appointed executor or administrator of the estate will begin the process of managing the estate. They can start by filing documents with the court to schedule and set the date of the probate hearing.
- At the probate hearing, the court will review whether the will is valid or not. Depending on the state and the court’s decision, the procedure will vary from this point on. Check state laws and local court rules for further information.
- The executor will next make sure that all debts and/or taxes still owed by the estate are paid off and settled.
- Any remaining estate assets (or items prescribed in the will) will be distributed to the appropriate beneficiaries, or if no will exists, then in accordance with state law.
The above steps provide an extremely basic outline of what is necessary for the probate process. As such, these steps can and will vary greatly depending on state laws, local rules for probate procedures, and other variables relating to the actual estate itself (e.g., size, value, etc.).
In addition, not all states require probate and many of them have state laws to dictate when it is necessary to probate an estate.
The most important thing to know about probate is that its main purpose is to settle an estate. For instance, aside from validating a will and ensuring creditors are paid off, it can be used to resolve disputes over assets, to determine where property or assets should go if it is not specified in the will, and if there are any ancillary probate matters that need to be completed for property located in other states.
How Does the Probate Process Vary From State to State?
The probate process can last anywhere from several months to potentially several years. The time it takes to complete this process will depend on various factors. These include the trust and estate laws of a particular state, where the property is located, the value of the estate, if there is a valid will, whether a dispute over property and/or assets occurs, and many other issues that can arise during probate.
Aside from the above general factors, the reason that the probate process varies from state to state is primarily due to the differences between state laws and the procedures required by each state. For instance, in some states the process may only last a couple of months, whereas in other states probate could take up to three years.
The following is a list of examples of the probate process in several states to demonstrate just how much it can vary by jurisdiction:
California: Probate proceedings in California can take anywhere from eight months to several years. California has one of the most complex probate procedures and requires following many different state laws and local statutes. Probate is required for estates that are valued at $150,000 or greater. Creditors will have about four months to collect on debts and probate must be filed within thirty days of the decedent’s death.
Also, while the proceedings may be delayed for six weeks or longer, the court will typically set a hearing date within thirty days and the executor will have about eighteen months to complete the process. An interesting thing to know about this state is that attorneys must bill according to statutory fees, meaning their rates are set at a flat fee and they may not bill for probate work by the hour.
Florida: There are three types of probate in Florida: formal administration, summary administration, and disposition without administration. The process usually falls within the first two categories. Length and requirements will vary depending on the type of administration. Regardless, anyone filing probate must do so with their local circuit court within ten days of the decedent’s death. The average length of probate here is six months.
Texas: In Texas, the time limits for probate are governed by state and local court rules. Thus, an Austin probate court may provide different rules than a Dallas probate court. The general rule of thumb here is that the probate must be filed within four years of the deceased’s death. If there is a will and the estate is small, the process can go quickly and end within six months. However, if there is no will or issues arise, it can take several years.
Additionally, beneficiaries must be notified about the process within sixty days and the executor will have ninety days to tell the court that the beneficiaries were notified.
Illinois: In Illinois, formal probate is only necessary if a person owns sole assets (as opposed to joint ones), and if those assets amount to more than $100,000. Anything less than $100,000 and formal probate will not be necessary. However, if formal probate is necessary, then proof must be provided within forty-two days. The typical length of the process in this state runs anywhere from six to twelve months, but could go longer.
Massachusetts: The probate process in Massachusetts can take anywhere from a few weeks to up to three years. Three years is the maximum limit provided by the state statute, but there are some exceptions. In general, probate usually takes nine to twelve months here with an attorney, but can last for two years without legal assistance. Simply initiating probate in this state can take up to two months and this is only for the first stage. Other time limits and delay factors include:
California: Nine months to several years; on average they take about a year to a year and a half.
Texas: Anywhere from six months to four years.
Florida: Timing will depend on the type of administration required, but formal probate generally takes anywhere between six to nine months on average. However, as previously stated, probate could last several years.
New York: Two months to three years; average is typically fifteen months.
Illinois: At least six to twelve months with the average being twelve. However, it can take longer depending on various estate related factors.
Again, it is important to remember that the above list provides the average time it takes, but length may vary depending on estate size, value of assets, whether there are disputes, if the will is deemed valid, state laws and procedures, and so on.
How Long Does Probate Process Take Without a Will?
The phrase to “probate a will” simply means that the probate court must establish its validity. Once this is confirmed, the process of distributing the estate and paying off debts can begin. The will is not considered valid until the court confirms as much. Probate proceedings generally take less time and are much less complicated when the decedent has created a will.
If the decedent did not leave a will behind, however, then the court will distribute property and assets in accordance with state succession laws. Although most of the process will still remain the same as if the person died with a will (e.g., appointing an executor, paying off debts, etc.), the primary difference between dying with or without a will is that the deceased will not have a say in the matter.
For example, the executor will most likely be appointed by the court and all of the estate will go through state succession laws. Therefore, if the deceased wanted a certain house to go to a grandchild, but they have no will stating as much, then the house will be distributed to the next person named in the state succession statute.
Again, the process for either will depend on state laws and circumstances surrounding the actual estate.
How Long Do Creditors Have to File a Claim Against the Estate?
As mentioned, the amount of time that a creditor has to file a claim against an estate will depend on state laws and procedures. For instance, in the state of California, creditors have up to four months to collect on their debts. However, in Massachusetts, creditors will have twelve months to file a claim.
Some other examples of states’ creditor time limits include:
- Illinois: Six months to file a claim.
- New York: Seven months.
- Hawaii: Four months with notice; eighteen months without notice.
- Maryland: Six months.
- Alaska: Four months.
Do I Need an Attorney for Help with Probate Issues?
If you need to probate an estate, then you should strongly consider hiring a local probate attorney for further assistance. Between confusing state laws, lots of legal paperwork, and various executor fiduciary duties, probate proceedings can be quite challenging to navigate without legal guidance. Thus, an experienced probate attorney is a valuable resource to have during the probate process.
Your attorney will be able to explain the relevant state laws and processes, the duties you have as an executor or beneficiary, and can draft any necessary documents. An attorney can also help you prepare and file a case in the event of a dispute, and will be able to provide representation in court on the matter if necessary.
