The death of a loved one is never easy, even if they have been sick for a long period. The days and months following the loss of a loved one can be challenging in many ways.
You are not only dealing with loss and grief, but most heirs also have to go through probate which can be a big unknown and a painstaking process.
Many questions come up.. for instance, you might ask the following questions..
Am I going to have to sell the home and personal items?
Is it my responsibility to appoint an executor of the estate of will the probate court do that for me?
If you are finding yourself in this situation, it’s better to be armed with the facts when going through probate rather be faced with surprises.
In most cases, when someone passes away, their estate has to go through the probate process. Probate and probate court takes a long time, in most cases anywhere from 1 year to 3 years.
That means that you need to stay vigilant through out that time period and you also will not be able to access anything named in the estate until the probate process has been finalized by the probate court.
So, if the estate you are an heir to is headed to a probate court hearing, it’s important that you have an understanding of what happens at these hearings and what you can expect from one step to the next in the probate process.
Table of Contents
How Long Does Probate Court Take?
Probate court timelines are a hot topic. With the pandemic and probate courts going remote, many heirs are concerned about probate timelines. We did a statistical analysis in google and found that people have typed in “how long does probate court take?” over 650% more in 2020 and 2021 than they have in the previous 5 years, so it’s on everyones mind.
Probate Court Timeline
The reason probate court takes anywhere from 1 to 3 years is because there is a protocol that needs to be followed and major milestones that take place along the way. It’s the court’s responsibility to ensure that all of these milestones are met and the proper distribution of assets is upheld. The major milestones in the probate court process are listed below:
- File petition for probate (usually within 3 months but can take up to several years in some circumstances)
- The First Probate court hearing on the petition for probate (usually within 3 months)
- Letters of administration from the judge preciding over the probate
- Issuance of Bond
- Inventory of estate assets including all real assets and real estate
- The debts of the deceased are paid in full to every creditor
- The assets of the deceased are distributed
- The wishes of the deceased are carried out using the legal process
In order for probate to start, the personal representative or executor of the will must file a petition with the county office where the deceased lived.
Don't Wait for Probate
The Role of the Court in a Probate Hearing
The role of the probate court during the probate process is to ensure that the wishes of the decedent are met to the letter of the law. The court must make sure that the directives in the will are followed. If no will is present, the court will distribute the assets to heirs and beneficiaries according to Florida law.
The court will also issue rulings on any appeals made by heirs to the estate and creditors of the estate that claim their right to the assets. It is within the scope of duties for the executor of the will to deny a claim made by a creditor, but the probate court will then determine if there was a basis for the denial or if the creditor was correct in making the claim.
When a probate petition is filed with the county clerk requesting a probate hearing, the court will schedule a date and notify all participants in writing. Those who will be notified for probate proceedings include the following:
- Letters of administration by the probate court judge
- Election of an executor or personal representative
- Heirs to the estate
- Beneficiaries named in the will
- Creditors of the estate
Initial Probate Court Hearing
The executor of the estate will be chosen at the initial probate court hearing in Florida. Even if the will listed someone to fill this role, the court still has to review the selection and make the final approval. The court might want to know the relationship, if any, between the executor/personal representative and the deceased.
The executor will need to explain to the court why the will must go through the probate process. It could be because the estate is larger than most or because of the types of assets held by the estate.
There are situations where the court will need to appoint someone different as executor. This often happens when the person named as executor expresses their wish not to hold the position. Other times, this occurs when heirs of the estate contest the person who was named as the executor. The court will need to hear these complaints and appoint someone of their choosing to handle the duties of the executor.
Once an executor has been approved, the court will issue Letters Testamentary. These letters provide the executor with access to the estate and its assets. The letters also give the executor the proper power needed to act on the behalf of the estate.
What Happens Next?
At the conclusion of the first probate hearing, the estate assets must be valued and then distributed according to the will. The executor is responsible for finding all the assets of the estate, valuing them, paying all the creditors for the decedent’s debts, and paying taxes for the estate. In order to do this, the executor might have to liquidate some of the decedent’s assets.
The executor is also responsible for making notice to the estate’s creditors and heirs so the estate can pay debts from the remaining assets. This might include sending letters or publishing a notice about the estate in the local newspaper so that any unknown creditors have ample opportunity. This step is required as part of the court process and cannot be skipped.
The Second Probate Hearing
After all of the required duties of the executor are complete, he or she will file a petition requesting final distribution. The probate court must approve this petition during the second probate process hearing. This hearing usually occurs anywhere from 10 months to one year after the initial petition for probate was filed with the court. The timeframe will vary based on the complexity and size of the estate and if any issues arose during the initial court hearing.
The next step at the court hearing is for the judge to review everything the personal representative did in the months prior involving the estate to ensure that the executor performed their duties correctly. This includes reviewing how the assets were distributed and if all of the debts were paid using the decedent’s estate. If everything was done as instructed in the will, the judge signs the petition requesting final distribution at the second court hearing and the estate will be closed.
All outstanding bills of the estate must be paid before the judge can sign the petition for final distribution. Tax returns must also be filed and all known creditors need to be issued payment for debts. If just one of these items hasn’t been completed, the probate process cannot be finalized by the probate judge. Getting to this final step is the main goal of the second probate court hearing.
Frequently Asked Questions
Don't Wait for Probate
The court might require you to post a bond, which would protect the estate from losses that you might cause it to incur. The bond would only be good for a specific amount. Some wills actually state that a bond is not required. If this is not mentioned in the will, the judge will need to determine if a bond is necessary during the initial probate court hearing. The judge will not require a bond if all of the beneficiaries of the will agree to such in writing.
In order to prove that a will is valid, you will need a statement in one of the following forms from a person who witnessed the will being signed:
- Court testimony from a witness
- A sworn statement that has been signed by a witness
- A statement that has been notarized (this was signed by witnesses when they witnessed the signing of the will)
For instance, if the inherited house was originally purchased in california in 1950 for $20,000 and it’s now worth 3million, you may be responsible for paying taxes on the difference between $20,000 and the $3million that you sell it for. At this point, everything is just speculative since no changes have been signed into law. You might not have to pay taxes if you sell the home as your state law dictates or if you sell it within the first year of owning it. You should speak with an attorney to understand how the law applies to your situation.
You are not permitted to give any assets or property the decedent left to beneficiaries before the process is complete because taxes and debts must be paid first. Only the remaining assets can be given to the beneficiaries according to the legal authority. If you need money early, it’s best to contact a probate funding company.
It might be a good idea to consult with a probate attorney when named as an executor of a will. Probate attorneys can also represent beneficiaries who want to contest the will or the person who was named as the personal representative for the probate court hearing.
A fast timeline for probate is 9 months but can take as long as 3 years.
Let Inheritance Advanced Guide You Through the Probate Process With Funding
As you can see, what happens at a probate hearing can be daunting. You should always seek representation when appearing before a judge, even if it’s in a probate court. The court supervised process of putting a will through probate is lengthy and involves quite a bit of items that need to be reviewed. Our advisors make sure that you are doing the right thing as the personal representative of the estate, will help pay creditors, and represent you at a second probate court hearing.
We have more than 1,560 happy customers throughout Florida and the rest of the country. Contact us to speak with a probate funding advisor today. We understand the specific laws of Florida and all of the United States and how they relate to all beneficiaries when it comes to the last will and probate. We can provide you with an inheritance advance so you don’t have to wait a year or more for money that can help you financially today.