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Everything You Need to Know About The Probate Process

Header Everything You Need to Know About The Probate Process-min

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If you are pulling your hair out trying to understand the probate process, you aren’t alone. Probate is the process in which the court makes sure that a deceased person’s debts are paid and remaining assets are distributed to the correct beneficiaries. The term probate is used to describe the legal process that manages the assets and liabilities left behind by a recently deceased person. Probate statistics show that over $2 Billion dollars is spent on probate each year by estate heirs and executors in the United States alone.  So it’s important for you to know what to expect.

In this article, we go over the most critical things to look out for if you are going through the probate process from possibilities to receive early distribution and all the involved parties. We’ll start by going over how long probate typically takes.

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How Long Will Probate Take?

The probate process can vary in length depending on a few different factors. It can last anywhere from a couple of months to more than one year. The size of the estate, the complexity of the estate, if the will is contested, and the types of assets held by the estate all play roles in how long it takes for probate to final distribution.

It’s important to be prepared and understand the specific laws of the state in which your probate is taking place in.

Can I Receive An Early Probate Distribution?

In order to get an early distribution, the executor or administrator, also known and public representative needs to petition the judge in order to give out a final distribution. The petition includes showing the judge what has already been paid from the estate and what is left in the probate in order for him/her to sign off on the early distribution. Even after petition, many judges deny the early distribution request. In some states, the judge also has to approve the sale of real estate. During this time it is likely that the judge will mandate that there is a bond to protect the integrity of the estate. Not everyone is eligible to receive a probate bond. In order to get a bond, they will look at the stability of the executor or the administrator to issue the bond. Many times they will check criminal history, credit history and bank balances. At that point, many beneficiaries or executors will get an advance on their inheritance.

What Steps Are involved In Probate?

The process of probate and associated timelines vary greatly based upon the size of the estate, how much inventory is needed, creditors, trusts, beneficiaries and many other factors as well as the state the probate is taking place in. If you’re wondering what your probate process will look like, there are some important factors to be aware of. The process below is a general overview of what happens in subsequent order based on the probate process timeline. While each state varies we will provide an overview of the probate timeline and deadlines for California as an example.

Please include attribution to Inheritance Advanced with this graphic.

Probate Process

Don’t Wait for Probate

Example of Probate Deadlines and Timelines:

  • Contesting appointment of personal representative: at or before hearing (by filing written objections)
  • Response to will contest: within 30 days after service of summons
  • Petition to Revoke Probate: within 120 days after will is admitted to probate
  • Inventory and Appraisal: within 4 months of issuance of letters
  • Creditor Claim: 4 months after letters or 60 days after notice

Notifying creditors of decedent’s death

This is the first step in almost any probate process timeline. Once a decedent passes, it’s important to notify any creditors. This starts with a newspaper announcement and then an official estate inventory. Once debts have been established, your surviving family members or the executor of your estate will need to notify the necessary credits. This can be done by sending a copy of your death certificate to each creditor.  Estate creditors have one year from the point of the person passing away to make claims on that estate. If we found ourselves in probate, there would be a duty to file in a local newspaper of regular distribution. From that point on, creditors have a variable amount of time based on the state of the probate to make a filing against the estate.

The location of the executor plays a role

Even with the technology available today (Zoom, scanners, video calls, etc.), the location of the executor plays a major role in the probate process. If the executor of the will lives in a separate state, he or she can’t just pop into the lawyer’s office to handle any issues that arise. On top of that, the court requires original signatures on documents, so sending an electronically signed document via fax or email will not be acceptable.

If the executor lives far from the probate lawyer, expect the entire process to take upwards of one year to complete. Documents will need to be mailed to the executor, signed, and then mailed back to the attorney or to the probate court.

Other questions that determine the course of the probate process

There are many factors and variables in an estate that dictate the time of probate. Credits, beneficiaries, the court’s current process are all variables that dictate how quickly your probate will be settled.

Are there a lot of beneficiaries?

If there are a lot of beneficiaries (five or more), the time to complete probate cases increases, especially if the beneficiaries don’t live close to the probate attorney or the executor. It will take months to send documents between all of the parties to have them signed, notarized, and filed.

You might also run into problems with the beneficiaries contesting the will, disagreeing with the decisions made by the personal representative, or disagreeing with other beneficiaries. Multiple disagreements will lengthen the amount of time it takes for the probate court to complete the process.

Naming a personal representative

In order to begin the process of probate, the person named as the personal representative of the will must file a petition for probate with the county clerk where the decedent lived. This is the only location where probate can be held. Even if your loved one owned a vacation residence, the process can only take place where the decedent’s primary residence is located.

Once the petition is filed an initial hearing will be held by the court. During the hearing, the court will review the person appointed by the will as the personal representative. This person can refuse to act as the personal representative or accept the assignment. If the person refuses, the court will then need to appoint someone to this position.

Providing notice to beneficiaries

After the court validates the personal representative, this person must then provide notice to the beneficiaries of the will, creditors, and anyone else named in the will. The administrator is also required to notify relatives of the deceased who would inherit assets from the estate if there was no will in place (based on your state’s intestate succession laws). Notice can be made via an announcement in the local newspaper or by sending letters to the parties involved. Those notified of probate are not required to attend or even answer the notification.

Audit of estate assets: how much is in the estate?

The next step for the personal representative is to audit all of the assets and property of the estate. Every item must be inventoried and appraised to determine the overall value of the estate. Items can include any of the following:

  • Jewelry
  • Furniture
  • Art collections
  • Vehicles
  • Boats
  • Real estate
  • Bonds
  • Stocks
  • Books
  • Clothes
  • Baseball cards
  • Autographed items
  • Bank Accounts

Initial Probate Hearing

During the initial hearing, objections to the will can be made by beneficiaries and creditors. Objections can include:

  • Disagreeing that someone is listed as a beneficiary
  • Disagreeing on the assigned value of a piece of property
  • A creditor claiming he or she is owed more than what has been discovered
  • A creditor that wasn’t listed claiming the decedent had a debt with them

If objections are made, the court will need to review evidence that either supports or disproves the claims. After this is resolved, the probate hearing will conclude.

Payment of Creditor Claims, Debts, Filing of Taxes, and Distribution of Assets

Following the conclusion of the first hearing, the personal representative can begin the next step of the probate case on the decedent’s estate. This step involves the payment of debts, the filing of state taxes and federal taxes, and the distribution of assets. The probate process cannot be closed until all of this occurs, especially the payment of taxes to the Internal Revenue Service according to state laws and probate laws.

The Second Probate Hearing

The individual in charge of handling the estate must follow the probate steps in order or risk having the process last much longer than one year. Estate property can only be distributed to beneficiaries once all the debt of the estate has been paid. Now it’s time for the personal representative to file a petition for final distribution with the probate courts.

This petition will be reviewed and approved at the second hearing in front of the probate judge. The judge will ask the representative for a list of the actions they took related to the management of the estate. If there are questions about the assets, debts, creditors, or heirs; the judge will ask for clarification.

If the judge deems that the proper actions were taken by the representative and that there are no outstanding debts to be paid or taxes to be filed with the state or federal governments, the judge will grant the petition for final distribution and close probate.

Final Distrubition Of Probate

After the judge has reviewed the actions of the administrator, probate will be closed by the court. The remaining estate funds can now be distributed to the beneficiaries named in the will. The discharge order must be signed by the judge and included with the closing letter. Be sure to check with the laws of your state to determine if an estate tax needs to be paid. If so, the money can come from the estate.

Completion of the probate process

Once all the requirements have been met, including justifiable distribution of the estate, the probate process can be completed with the executor filing a declaration of completion at the court.

Importance Of Completing The Probate Process Properly

The declaration of completion by the executor must be filed after the probate process has been completed to free the executor of any obligation to the deceased. After this process, proceedings from any real asset administered to a beneficiary fully belong to him.

Timeline For Filing For Completion Of Probate

This process is possibly the shortest and almost insignificant because it depends on when the executor can meet with the judge. This can be anytime from the date of administration.

How it works

The declaration of completion is not the only method the executor can use. He can also decide to file a petition for the decree of distribution or file a final report and petition for the distribution.

In some countries, there must be a court hearing on the petition to close the probate process. However, most judges don’t need the presence of all the parties involved. Just the executor.

Don’t Wait for Probate

Frequently Asked Questions About Probate Process Timeline

Can I Receive Money Before Final Distribution Of My Probated Estate?

In order to get an early distribution, the executor or administrator, also known and public representative needs to petition the judge in order to give out a final distribution. The petition includes showing the judge what has already been paid from the estate and what is left in the probate in order for him/her to sign off on the early distribution. Even after the petition, many judges deny the early distribution request. In some states, the judge also has to approve the sale of real estate. During this time it is likely that the judge will mandate that there is a bond to protect the integrity of the estate. Not everyone is eligible to receive a probate bond. In order to get a bond, they will look at the stability of the executor or the administrator to issue the bond. Many times they will check criminal history, credit history, and bank balances. At that point, many beneficiaries or executors will get an advance on their inheritance.

Can an executor be compensated for their duties?

Yes, a personal representative is able to receive compensation for the duties they performed for the estate. The value will vary based on the state in which you live and the executor can also waive these fees if they so choose. We also have a special program for executor inheritance advances.

Are there court fees for the probate process?

Yes, the court will determine the fees required for filing when going through probate. The fees vary based on the state. For example, California charges $435. New Jersey charges $100 for a will no more than two pages long and $5 for every page thereafter.

What is a probate bond?

A probate bond might be required by the probate judge. This bond provides insurance should the personal representative’s decisions cost the estate money. This bond can be refunded following the conclusion of probate minus any fees. State law might dictate whether or not a probate bond is required.

What is a small estate affidavit?

A small estate affidavit can be acquired if you wish to skip the probate process in some states, helping to shorten how long the probate process lasts. In California, you can skip probate if the estate’s value is less than $30,000. You might still be able to obtain this affidavit even if the estate is valued more than the limit set by your state. You can do so by removing property that doesn’t have to go through probate, such as:
A life insurance policy or retirement account that has a beneficiary listed
Property that is jointly owned (home or checking account)
A revocable trust
Any financial accounts that have payable upon death (POD) beneficiaries listed

Can I receive an advance on my inheritance?

It is possible for you to receive an advance on your inheritance. However, this is not the same as the executor issuing you the inheritance before probate concludes. Instead, you need to contact a probate advisor from Inheritance Advanced to apply for a probate advance. You can use an inheritance advance to help pay for the funeral and burial expenses, pay your bills, and handle other financial issues.

Who can contest a will?

Anyone can contest a will, even if the person was not listed in the decedent’s estate as a beneficiary. Probate property cannot be distributed until the estate taxes are filed, the estate administrator has paid all of the debts of the estate, and the will contest has been resolved by the probate judge.

Should I hire a probate attorney?

It is in your best interest to hire a probate attorney if you have been named as an executor of an estate or if you are a beneficiary of an estate, especially if you wish to contest the will during the probate process. An attorney will be able to explain the laws of your state and provide guidance to you throughout the probate process.

Is probate private?

The biggest downside to going through probate for an estate is that the entire process is public. Anyone can research the court records to see who has gone through probate and what property was involved and for how much. The only way to avoid becoming part of the public record is to not go through probate. However, this is not always an option as probate might be mandated based on state laws because of the size of the estate.

Will Heirs Be Effected If I Receive a Probate Advance?

No, heirs will not be affected if you receive a probate advance. A probate advance only refers to your portion of the estate. For a more information on probate loans and heirs being effected, please read our recent article: Does a probate advance affect the other heirs in an estate?

Do the Different States Have Different Probate Process Timelines?

Yes- each state has it’s own laws which effect the probate process and timeline differently. An estate planning attorney can help with your individual state guidelines.

How long is probate currently taking?

Probate is currently taking a long time because courts are backed up due to covid. The standard time is anywhere from 1 year to 3 years but sometimes can be faster or shorter depending on different variables.

What is the next step after probate is granted?

After Probate has been granted, the Executor must collect the deceased’s assets, do an inventory of the estate and take steps to pay outstanding debts or taxes – including income tax – owed by the deceased. Necessary expenses like Funeral costs are allowed to be paid first. The order of paying creditors and taxes will be different based on the states laws.

Call Inheritance Advanced to Discuss a Probate Advance Today

The experienced and trusted team at Inheritance Advanced serves more than 1,560 clients in Florida and across the country. We understand how challenging the probate process can be and that it can last upwards of one year to complete. Our advisors can assist you throughout the probate process or help you acquire an inheritance advance so you don’t have to struggle to pay for your loved one’s funeral and burial.

Call our inheritance funding company office in West Palm Beach or visit us online to speak with a probate advisor today. You shouldn’t have to struggle to pay the bills for more than a year while you wait for the probate to conclude. Let our probate advisors help you wade through the murky waters of the probate process no matter the state where you live.

References:

Legal Disclaimer: Please note that Inheritance Advanced is not a lender. Inheritance advance does not provide probate loans, inheritance loans, or estate loans, rather, an advance on a portion of proceeds signed over to Inheritance Advanced. Inheritance Advanced is also not a probate attorney and any information in this article should not be misconstrued as legal advice. We recommend that you seek the advice of an attorney, CPA, and tax attorney regarding any decisions pertaining to your probate.

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Get Your Inheritance Money Now!

Our Inheritance Cash Advances help heirs receive a portion of their inheritance payout in just a few days. We then wait and are paid directly out of your share when the estate finally closes. We wait for probate so that you don’t have to. Click below and fill out our short form to receive an advance immediately.

Probate Costs