Probate - A General Timeline but Nothing is Written in Stone
by Don Drake, Connelly Law Offices, Ltd.
"Probate is the legal process of giving formal recognition to a will, naming or validating a personal representative (executor) to administrate the estate, and distributing assets to the intended beneficiaries," stated professional fiduciary and certified elder law Attorney RJ Connelly III. "It also requires paying the decedent’s outstanding debts and federal and state taxes. Each state has different laws determining if probate is necessary or can be expedited, whether the fiduciary requires bonding, and what reports must be prepared. The probate experience is unique, as no two wills are the same as are no two estates. So, when a client asks me for a timeline, the best I can offer is a general idea because several obstacles may pop up along the way."
"Generally, the timeline of the probate procedure moves quickly if the estate has minimal assets and little debt, and all the information is available to our office, allowing the process to move forward smoothly," said Attorney Connelly. "Larger estates can expect a process lasting anywhere from nine months to a few years, especially with problematic family dynamics. Our office helps guide efforts in these more complex or contentious circumstances. During grief, I respect the fact that it is reassuring to have a general probate timeline to help manage expectations and deadlines as the family moves through the process, but it's important not to see the general timeline in concrete terms." Given that, let's look at a general probate timeline.
Prepare and File the Probate Petition (1-4 months)
"Filing a probate petition requires a valid will and the decedent’s death certificate, usually provided by the funeral home," said Attorney Connelly. "The personal representative or executor sends an official notice of probate to beneficiaries or interested parties, with each state having specific requirements regarding the notification process. To speed the process, when there is agreement among beneficiaries, each party signs the “waiver of process consent to probate.” This consent form advises the court there are no issues with the will, and beneficiaries forfeit the right to challenge the will or its executor."
In most cases, 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, and they create a legal death certificate," stated Attorney Connelly. "The executor may prefer to purchase several death certificates for larger estates. It is a responsibility to report the person’s death to the Social Security Administration. If the decedent received medical benefits, a notice of death to the Department of Health and Human Services (HHS) is also a requirement."
Provide Notice to Creditors (3-6 months)
Like the beneficiaries, all creditors must be made aware of the presence of a will. "The estate’s personal representative notifies appropriate claim holders via a formal notice to creditors and other firms, companies, or people to whom the decedent owed money," Attorney Connelly said. "It is essential to follow court rules for notifying creditors. Discovery regarding the deceased’s outstanding debts is most easily achieved by gathering the remaining bills or requesting a copy of the decedent’s credit report."
Payment of Debts and Fees (6-12 months)
"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 payment of the decedent’s state and federal income taxes before the probate process can conclude," Attorney Connelly pointed out.
Additionally, the process of probate itself costs the estate money. The estate will pay all fees and administration costs relating to probate via the personal representative’s actions. The fee structure can increase based on the 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 assets is a crucial part of the will since it becomes part of the official estate record," said Attorney Connelly. "This task can be time-consuming, and cause delays in moving forward, especially if the estate’s records are in disarray or new accounts are discovered during the process."
Most asset inventory will include:
Bank accounts, including savings and checking accounts.
Property and real estate.
Stocks and bonds.
Life insurance and annuities.
Luxury items of significant value, like jewelry, watches, art, and other collectibles.
Intellectual property includes patents, trademarks, copyrights, software databases, and design rights.
Online line business ventures that produce income or have stand-alone value.
A check of state unclaimed property offices.
Jointly owned real estate, property, vehicles, and financial accounts transfer to the surviving owner. 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," said Attorney Connelly. "When all creditor bills are paid, and the remaining assets are accounted for, some state probate law dictates the distribution of assets occur only after the probate hearing. Concluding the probate hearing first prevents the opportunity for an ungrateful or 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," stated Attorney Connelly. "After finalizing the executor’s duties, the probate court judge issues the final order of discharge of the personal representative. This court action officially closes the estate."
"All wills go through probate proceedings; however, it is not the only option. Larger estate owners may prefer to protect the futures of their loved ones using trusts. There are advantages to avoiding probate as it can be lengthy, complex, expensive, and is always a matter of public record," concluded Attorney Connelly.
Connelly Law can advise trusts and other legal mechanisms to lessen the probate process or let you know if your estate qualifies for an expedited process. The probate process has a general timeline, yet all wills and state laws differ. Remember, although we can give a general timeline, the timeline may be extended as the process moves forward and obstacles arise.