If you are wondering how long probate takes, there might no be a simple answer. Probate court timelines can vary based on the laws of the state, how long the court is backlogged, the size of the estate, and the number of heirs. Probate is an essential process that takes place when there is not a predefined beneficiary for a deceased person’s assets. Many estates pass through probate in the United States because their assets are not structured to pass easily to an heir when they die.
Something as simple as not designating a beneficiary can mandate an estate to go through the probate process. There is a long road ahead after filing for probate, and you’re likely here seeking clarity about the entire probate process. In this article, we’ll answer the question of “how long does probate take” beginning with all of the steps and associated timelines in the probate process.
Probate process steps and timeline are listed below:
- Determine if probate (as summary or formal administration) is necessary
- Petition the court to open a probate case
- Hearing on petition to appoint an executor or administrator of the estate (or judge will issue Order electronically if no hearing is required)
- Issue probate bond (if necessary)
- Notice to Creditors
- Inventory and appraisal of estate assets
- Forms 1040 & 1041 federal income tax returns and state applicable tax returns are filed and taxes are paid (if necessary)
- Creditors claims are negotiated and settled
- Closing transcript for probate from IRS filed with probate court (if necessary)
- File for petition of final distribution of probate and final accounting (if necessary)
- Court issues final order of discharge
- Final distribution of estate funds occurs and probate concluded (an accounting of the estate can also be filed at this time)
The Probate Timeline Explained in Simple Steps
The probate timeline is fluid and can vary based on multiple variables. Many of the steps in the probate process happen concurrently and do not always adhere to a strict protocol. Variables like the time of year can affect the probate timeline because tax returns may have to be filed to meet state and federal guidelines. Below you can find a graphic representation of the probate timeline and more detailed information of what is involved in every step:
Decide to File Probate as Summary or Formal Administration (1-3 months)
A Summary Administration can be filed which is much faster than normal probate. In most states, you can only file for summary administration if the decedent has been dead for two years or if there is less than $75,000 in the estate.
Petition the Court to Open a Probate Case (1-3 months)
If a petition for probate administration must be filed, the personal representative or executor will submit a series of documents to the court in order to obtain letters of administration. This typically depends upon the county in which the probate court is petitioned The typical timeline is 1 week to 3 months. Many heirs don’t know they need to file probate so they may contact an attorney years later.
Hearing on Petition To Appoint an Executor or Administrator Of Estate(1-4 months)
In some states and/ or counties, a hearing may be required to appoint an executor, in others, the entire process is done by submitting the proposed order to the judge online. The order and letters of administration depend on the judge’s docket and the number of cases in front of the judge in which the petition was filed. It can take anywhere from 5 days to 10 weeks.
Issue Probate Bond (3-6 months)
A probate bond is issued many times at the opening of the estate if the executor is not a surviving spouse and lives out of state. If the judge feels a bond is necessary and prudent to protect the estate they will require a bond prior to issuing letters of administration. In order to obtain a probate bond, you must go to a bond company and pay the premium for the bond. Upon receiving the probate bond, it must be brought to the court and the court will then issue letters of administration. It can take anywhere from 1 week to 3 months and then the court must receive the bond based on the judge’s schedule.
Estate Administration (3-24 months)
The personal representative will use the letters of administration to step into the shoes of the decedent. By using the letters of administration, the personal representative can deal with the decedent’s financial assets and creditors. The personal representative is also able to file taxes and handle any other necessary matters on behalf of the estate. Estate administration occurs throughout the entire estate process.
Public Notice to Creditors Published in the Local Newspaper (1 week months-2 months)
Public notice to creditors is published once the letters of administration are issued. The sooner the notice to creditors takes place the better. In addition to publishing a notice to creditors in the local newspaper, you will also need to serve all known creditors directly with a notice to creditors. There is a predefined claims period for creditors in each state. In Florida, the law state the creditor time period is the later of 30 days from direct receipt of the notice to creditors or 3 months from the date of first publication in the local newspaper.
Take Inventory of All the Assets (1 month-6 months)
In many cases where there are liquid assets of the estate or there may be liquid assets of the estate, the personal representative will need to open a bank and/ or investment account in the name of the estate with an estate tax ID number. Once that bank account is open, any existing bank accounts or investment accounts will need to be put into the name of the new estate account. You will request the exact date of death value for all liquid accounts (i.e. bank and investment accounts) from the financial institution. You may also need to get the real property appraised as of the date of death. This is for purposes of filing the estate inventory. The process can vary from state to state. In most states, an inventory of assets must be filed within 60 days of receiving letters of administration.
Pay Federal Estate Tax and State Taxes (1 month to 12 months)
Federal estate tax must be paid within 9 months of the date of death if federal estate taxes are due. Only some states have state taxes and those are usually also due within 9 months.
Form 1040 Federal Income Tax(1 month to 12 months)
A form 1040 is a federal income tax and the decedent’s final income tax return must be filed April 15 unless it is extended.
Decedent’s Debts are Paid to Creditor Claims (3 months to 36 months)
A personal representative can choose to pay a debt of credit whether or not a creditor has filed a claim. A creditor can file a claim with the estate within the creditor period. If you don’t agree with a claim that has been filed you can file an objection to the claim. In most states, the period to file an objection is within 4 months from the notice to creditors being filed.
Independent Actions Outside of Probate Court (any point in time during probate)
Most claims are negotiated before they have to pursue independent action. If a claim goes through independent action it will be litigated and take up to 3 years to settle.
File for Petition of Final Distribution Of Estate (6-36 months)
After taxes have been paid, inventory is filed, creditor claims have been filed, negotiated, or otherwise settled, the estate gets distributed, and once the estate is distributed you can file for discharge as well as the date of discharge.
Completion of Probate(6-36 months)
Some counties require a hearing on the petition to close the probate process. Most judges no longer require exparte, but it’s at their discretion, which means someone may need to appear on behalf of the estate to speak with the judge without other parties present.
Closing Transcript for Probate From IRS(6-36 months)
In cases where an estate tax has been filed, a letter from the Internal Revenue Service (IRS) called a closing transcript, must be received and provided to the court in order to close the estate.
Entire Probate Timeline(6-36 months)
An estate that is not subject to a state tax generally takes between 9-12 months. For an estate that is subject to estate tax, the timeline is anywhere from 16 to 36 months, mostly based on delays from the IRS. The average length of probate from start to finish typically takes between 12 and 24 months.
Don't Wait for Probate
Important definitions and factors determining how long probate takes
In short, the probate court is the legal process of having the court oversee and determine the validity and authenticity of a will, handling a will that’s contested, and dispersing the assets of the decedent’s estate in appropriate legal order according to state law. There is only one part of the judicial system that deals with wills, estates, conservatorships, a living trust, and guardianships, and that is through a probate proceeding in the Probate Court.
An estate is not limited to physical real estate. In the event of death, an estate is the sum total net worth of a deceased individual and includes all assets involved that the deceased owned. The estate includes their home, any other real property, businesses, material possessions, bank accounts, investments, vehicles, etc. The more assets that would potentially be included in a taxable estate, the greater the likelihood that state laws will require probate. The size of the estate is key to determining if one can avoid probate with a small estate affidavit, will only need a summary administration, or a formal administration is required according to state law. Seeking the appropriate legal assistance with estate planning is vitally important to do before a person died.
The decedent is the appropriate legal term for the deceased person whose estate is in question. Prior to someone’s death, probate laws and other pertinent state laws should be reviewed with an experienced probate attorney. At that time, a will can be established, an executor can be established according to the probate laws of that state. Then, after the decedent dies, the personal representative is the executor for the estate. If there is no will in place upon the decedent’s death, then the personal representative is an administrator of the estate.
Beneficiaries and Heirs:
While these two terms are often used synonymously, there is a significant distinction. A beneficiary is an individual listed in a will, living trust, or insurance policy set to receive assets from the estate of the deceased. Whereas an heir must be directly related to the deceased by blood, such as a spouse, child, or sibling. The distinction between an heir and a beneficiary becomes more significant if the deceased passed without a living will. Without a will, there are rarely beneficiaries outside of blood-related, rightful heirs who can be legally recognized according to state laws.
Administrators, Executors, and Personal Representative:
All of these roles are significant in the probate process and are subject to the legal jurisdiction of the probate court. They even share many of the same responsibilities, such as paying taxes, selling real estate, and gathering and dispersing assets amongst beneficiaries. The personal representative of an estate is the executor or administrator for the estate of the deceased individual and serves as a fiduciary of the estate’s beneficiaries. However, the administrator is the person appointed by the court to be in charge when someone dies without a legal will and testament in place, and the executor is responsible for overseeing the execution of the existing will.
Do You Need to Hire a Probate Attorney?
Probating an estate is a complex process that involves many factors including a hefty amount of paperwork, court appearances, and jumping through legal hoop after legal hoop. A licensed probate attorney is an attorney who specializes in the intricacies of the probate process. They can drastically ease the stress and frustration that typically accompanies the process of probate, by taking a large part of the workload off of the shoulders of the decedent’s family, beneficiaries, and executor. They can also advise if the decedent’s family can avoid probate altogether. Additionally, you can consult your probate lawyer on the specific circumstances and state laws regarding the dispersal of assets.
Factors That Can Affect How Long Probate Can Take
In short, closing an estate through the probate process can take two months to two years. Yes, you read that correctly, it’s a frustratingly wide range. While there is a possibility of settling a probate estate within as little as two months, the likelihood of this happening is extremely slim. According to the American Bar Association, the average time for the probate process is six to nine months for an average estate. How long probate can last depends on several factors.
In the case of extremely small estates, it could potentially be resolved within three to four months. The timeline is heavily dependent upon the size and complexity of the estate, as well as where you live. Due to the variations in the process, procedures, and timelines of probate that vary from state to state, we recommend seeking the appropriate legal counsel of your probate attorney to assess the specifics of your state.
Regardless of your state’s average probate timeline, complications may still arise. With any estate, assets must be discovered, recorded, assigned a fair value, and the inheritance liquidated and dispersed. As you can probably see, there is a wide range of opportunities for complications in probate work. Let’s take a look at some common probate complications that can elongate the process.
A Legal Will and Testament
The first thing that must be ascertained is whether or not there is a will. Without a will, the court will assign an administrator to determine who the rightful heirs are. While the legal process of probate without a will still vary from state to state, the standard is that only direct relatives will receive any portion of the decedent’s estate.
The Size of The Estate
Another major consideration in the probate timeline is the size of the estate in question. This factor has a significant effect on how long you can expect to spend in probate, depending on the size of the home itself and the property it sits on, any rental property that belonged to the deceased, vehicles, businesses, any bank account belonging to the decedent, etc. Oftentimes there are specific items that have been willed to various individuals throughout the family, and this can also elongate the process. Whereas other times they will simply instruct the estate to be liquidated and the cash divided between the various heirs and inheritors.
Probate Administration Vs Probate Summary
As you might imagine, this process can take months to sort through. The other factor is that there are various types of probate. Most states have two probate categories, both formal and informal. Informal probate is generally reserved for smaller estates with a lower estimated value, and fewer creditors. Formal probate is much more complex. There is an option to simplify the formal probate administration process by breaking it down into simpler stages that are considered “unsupervised” by the court. In this case, the executor handles the tasks detailed in the will and creates a report to submit to the court at the end of probate.
If you want to speed up probate the best option is to obtain a probate lawyer. It might sound more expensive or at expense to the probate case, but the truth is, lawyers keep you from making mistakes that could actually be more costly. They help you keep on track and make sure the time frame is actually shortened. They give great legal advice as you have to go ahead and literally get rid of all of the assets. You’re going to have to sell and liquidate all the assets throughout the probate process. There are a lot of intricacies in the probate case. I’ve seen where lawyers are not introduced into the case, and sometimes that causes them to go two or three years more where a lawyer could have been inserted and retained. And it literally will close in maybe six to twelve months and save you a lot of trouble. Trouble, a lot of hassle and ultimately a lot of money. So my best advice that I can give is the first step is go get a confident attorney.
What should you do if you can’t wait for probate?
There are several different options if you can’t wait for probate to be completed to receive the final distribution funds. You can have the executor petition the court to provide an early distribution, or you can get a probate advance (inheritance advance). Petitioning the judge can be long and difficult so many heirs opt for a cash advance. This is not the same as an inheritance loan. The money you receive from a cash inheritance advance is yours to keep and does not need to be paid back to a lending institution. Our team here at Inheritance Advanced is here to serve you in a time that may be emotionally taxing: we offer a free consultation and we can deliver an inheritance advance within days of your approval! We’re here to help you get your probate funds early.