“How long does probate take?” is one of the most common questions our estate planning clients ask. The answer varies depending on the structure of the decedent’s estate plan, including whether they had a valid Last Will and Testament, the complexity and distributions of assets pertaining to the state, any the presence of any disputes raised over the administration of the estate during the probate process. If you have questions regarding how long probate will take for your estate, or for an estate you are administering as executor or from which you expect to inherit as a beneficiary, you can learn more by contacting Von Rock Law at (866) 720-0195 to schedule your personal consultation with a member of our experienced estate planning team.
What Is Probate?
Probate is the legal process through which a decedent person’s estate is administered. The process differs significantly depending on whether the decedent had a valid Last Will and Testament, or on the other hand died without a will (also referred to as dying intestate). Probate covers the administration and final disposition of all assets pertaining to the estate except any that have been placed in a trust. Assets held in a trust are not subject to probate.
Probate With a Will
During probate, a court validates the will to ensure it is valid and oversees the execution of the will’s terms, including how assets like bank accounts, financial investments, and real estate are distributed. A will usually names an executor, who is responsible for collecting the decedent’s assets, paying any liabilities on their estate, and distributing assets to beneficiaries.
The decedent is known as the testator of their will. When the testator passes away, the executor, often but not necessarily a close family member, must initiate the probate process. This person is responsible for filing the will with the local probate court, which then issues documents known as letters of testamentary, authorizing the executor to proceed with estate administration pursuant to the terms of the will. The court supervises the proceeding and determines the authenticity of the will and whether it can be accepted as the true last testament of the decedent. If the will is deemed valid, the executor acts as a legal representative of the decedent. They are responsible for locating and overseeing all assets left in the will and for estimating the value of the estate. The executor is also required to pay any taxes or debts owed by the decedent and for filing the individual’s final personal income tax returns.
Probate Without a Will
When someone dies without a will, they are considered to have died intestate. Intestate estates are also presented to probate courts. However, rather than distributing assets according to the guidelines specified in the will, the court distributes them based on the intestacy laws of the state of which the deceased individual was a resident. If an individual is found to have died with no assets, the probate process is typically unnecessary.
The probate court usually starts the process by appointing an administrator to oversee the decedent’s estate. This administrator serves the same role as an executor during probate proceedings with a will and is responsible for responding to all legal claims against the estate and paying off outstanding debts. This person must also locate legal heirs of the decedent, such as children, parents, and surviving spouses. The probate court determines which assets will be distributed among these heirs and how they will be distributed. Probate without a will is significantly more complicated than the alternative, which means that the process often takes longer than if the court can readily validate a final will.
What Factors Influence Probate Time?
For estate administration in cases that do not require the filing of a federal estate tax, the California Probate Code requires the executor to either complete probate or make a status report to the court regarding the status of the ongoing estate administration within one year from the date of their appointment. For cases in which estate administration does require filing a federal estate tax, the executor has 18 months.
While most executors aim to complete the probate process as efficiently as possible, several factors can influence how long the probate process takes. The Judicial Branch of California offers a range between nine months and a year and a half as a guide to help estate representatives estimate the time involved; but also note that the process may take longer. Some probate cases can even take years to resolve. If you are wondering “How long does probate take?” in your circumstances, you can learn more by contacting Von Rock Law.
How Complicated Is the Estate?
The complexity of the estate is one of the main factors determining probate duration. Estates with more complex assets, such as multiple real estate properties and business interests, often require extra time for asset valuation, the resolution of disputes, and other legal matters. Thus, in general, the more complicated the estate, the longer the probate process.
How Large Is the Estate?
Larger estates typically take longer to go through probate, as they often require more time for valuation of the estate, asset distribution, and creditor notification. A smaller estate with fewer assets typically goes through probate much more quickly. This is why individuals with large, high-value estates often place many of their assets into a trust, as doing so can avoid a lengthy probate process.
Are There Any Disputes or Challenges?
Sometimes, the administration of a will brings up challenges or disputes. Beneficiaries may dispute or officially contest the terms of the will. These challenges and disputes usually lengthen an already long probate process, as probate litigation typically requires court hearings and other legal proceedings.
Creditor Claims
If the decedent has significant debts, creditors will be given the chance to file claims against their estate. According to the Judicial Branch of California, creditors have sixty days from the time they are notified of an individual’s death to file claims against the decedent’s estate. If claims are filed, the probate process will usually be longer.
How Can Probate Be Avoided?
There are several reasons to consider structuring your estate plan in a way that serves to avoid probate. The probate process takes time and costs money, and can cause unnecessary hurdles when distributing assets to beneficiaries. The following estate planning strategies can be used to transfer assets without needing to go through probate:
- Establishing trusts: Property held within a trust is not considered part of the estate of the decedent. Instead, a trustee controls these assets and is required to distribute them according to the terms of the trust.
- Reducing the value of the estate: In California, an estate may not be subject to probate if the total value of the assets subject to probate is under $166,250. The value of an estate can be reduced through several strategies, such as gifting assets to a spouse.
- Establishing joint ownership: Real estate properties can be transferred without probate if they were jointly owned by the decedent and their spouse.
- Transfer on death provisions: Bank and other financial accounts can be made “payable on death,” meaning that the funds in these accounts will be directly transferred to a designated beneficiary when the account holder passes away, without needing to go through probate.
Contact Our San Francisco Estate Planning Lawyers
Are you wondering “How long does probate take?” while going through the estate planning process? The dedicated team of San Francisco estate planning lawyers at Von Rock Law works with clients on probate and a variety of other estate planning matters. Contact us today at (866) 720-0195 to learn more about the probate process and other estate planning concerns.
