How Long Should You Expect Probate To Take?
By: JULIE GARBER - November 30, 2018
Probate has a reputation for lasting just short of forever, but is this always the case? It depends on many factors. Some estates settle or close within a few weeks or a few months, while others can take a year or longer.
The probate process involves a good many steps, all of them necessary to move assets from the ownership of a deceased individual into the ownership of a living beneficiary. His taxes and outstanding debts must be paid as well before this can happen.
All this often chugs along under the supervision of the probate court, and this can further slow things down. The process can slow to a crawl when there are complications.
01 Where Does the Executor Live?
The executor, sometimes called the personal representative, is in charge of managing the estate through the probate process. Sometimes, with larger estates, an attorney might be involved as well.
Where the personal representative lives in relation to where the attorney is located might not seem like a big deal in this day and age with all the modern technology we have at our fingertips. But the distance between the personal representative and the attorney can indeed make a difference.
When a personal representative is located close to the attorney's office, she can pop in to take care of problems on a moment's notice. If she lives far from the office or in another state, quick meetings just can't happen.
And keep in mind that almost all documents that are filed with the probate court require the original signature of the personal representative. Faxed or emailed signatures won't do.
The bottom line: The closer the personal representative is to the attorney, the more quickly things will get gone.
02 How Many Beneficiaries Are There?
Probate will take longer as the number of beneficiaries of the estate increases, particularly if they, too, live far from the probate attorney's office. This is simply a function of the time it takes to send multiple documents back and forth between numerous people who are located in many different places.
03 Do the Beneficiaries Agree or Disagree?
It's unlikely that any two beneficiaries will agree on everything that must happen with an estate, let alone three, four, or more of them. Some beneficiaries might even hire their own attorneys to monitor the probate process and these types of attorneys tend to nitpick over every single thing the executor does.
Suffice it to say that the more the beneficiaries an estate has and the more they find fault with the process, the longer probate will take.
04 Is There Going to Be a Will Contest?
A will contest is a legal proceeding initiated to invalidate a last will and testament. Will contests are based on one of four arguments, or sometimes a combination of them:
- The will was not signed with the proper legal formalities.
- The will was written as it was due to issues of fraud.
- The will was written as it was under duress and undue influence by a beneficiary.
- The deceased lacked the mental capacity to create a will.
The probate proceeding will remain open for a very long time if a will contest occurs. These issues are typically resolved after a lengthy court trial.
05 Is There a Will?
A big snarl can occur if the deceased didn't leave a will. This doesn't mean that her estate doesn't have to be probated. It means that the court will be heavily involved in the process every step of the way.
The judge will have to appoint an executor because the deceased didn't nominate anyone in a will. State law will determine which heirs will receive bequests from the estate and in what percentages. Even simple steps in the probate process will take longer than if a will had been available.
06 Is the Estate Taxable?
It takes longer to probate an estate that owes estate taxes. A taxable estate can't be closed until a closing letter is received from the Internal Revenue Service—and the state taxing authority as well if state estate taxes are also due. It can take anywhere from six to eight months after filing an estate tax return before receiving any type of response from the IRS.
As a practical matter, very few estates will be subject to the federal estate tax beginning in 2018, however. Only those with values in excess of $11.18 million are subject to taxation on the balance at the federal level.
But 14 states and the District of Columbia also impose state-level estate taxes as of 2018, and it can delay the probate process if the deceased died owning property in one of them. Many of their thresholds are much less than $11.18 million.
07 How Complicated Are the Assets?
Probate should be relatively simple when an estate is comprised of just a couple of assets, maybe a house and a bank account. The exact rules and requirements can vary by state, but many states make simplified probate options available when an estate isn't complicated.
The total value of the deceased's probate assets must usually fall below a certain dollar limit. In this case, the probate court will allow the transfer of assets to living beneficiaries based on a small estate affidavit. This type of "probate" can take as little as a couple of weeks.
But if the estate is comprised of a house, a bank account, and an interest in the family business, administration can get complicated and drag out.
08 Is Probate Even Necessary?
You can avoid probate of your estate entirely by funding your assets into a living trust. They would pass to living beneficiaries according to the terms stated in your trust formation documents so a probate case never has to be opened with the court. Of course, this assumes that you remember to title all your property in the trust's name after you form it.
You might also consider minimizing your estate by holding title to certain assets in such a way that they'll pass automatically to living beneficiaries at the time of your death. You don't necessarily have to go to all the trouble of creating a living trust.
Talk to an estate planning attorney about the possibility of creating a trust, payable-on-death accounts, or holding real estate with someone else with rights of survivorship. Any of these options might minimize your estate so it can qualify as a small estate and pass by affidavit.
So How Long Does Probate Take?
If the personal representative and the beneficiaries get along, if the assets aren't complicated, and if the estate isn't taxable, the probate process could take well less than a year. Otherwise, it can drag on for a year or more.
Article Source : thebalance.com
** Disclaimer Required by IRS Circular 230** Unless otherwise expressly approved in advance by the undersigned, any discussion of federal tax matters herein is not intended and cannot be used 1) to avoid penalties under the Federal tax laws, or 2) to promote, market or recommend to another party any transaction or tax-related matter addressed.