Most people give little thought to probate until they end up having to deal with the process as an executor or find themselves waiting to receive an inheritance. As a rule, probate is usually simple to avoid – just as long as you have the right estate planning tools in place to ensure that your assets have some other way of being distributed when you die. However, since most Americans have no estate plan – and even many of those who do rely on nothing more than a basic will – the clear majority of estates end up having to go through some type of probate before the estate can be settled. Unfortunately, that process can last for far longer than most of us would prefer. Of course, that causes many people to wonder one thing: how long does probate take, and why?
What Does Probate Accomplish?
To understand why probate can seemingly drag on forever, it’s vital to understand what the process is designed to accomplish. Probate is nothing more than a legal process designed to settle a decedent’s affairs. As such, it is used to secure a decedent’s assets, identify and pay creditors, settle any tax issues, and then distribute the remaining assets in accordance with the deceased’s last wishes as expressed in his will or according to the distribution method provided for in the state’s intestate succession laws when there is no will.
It’s worth noting that probate does not apply to assets that are transferred to heirs using other means. For example, any assets in a trust are free from probate, since the terms of the trust will provide for their transfer after death. In like manner, asset that are owned using joint tenancy have no need for probate. The same holds true for bank accounts, stocks and bonds, and retirement accounts that all include payable on death provisions or other forms of beneficiary designation.
Probate Delay Concerns
It’s also important to recognize some of the reasons why the probate process can take longer than you might expect. Yes, there are certain things that must be done through probate, and these take time. It can take some time for executors to gather assets and inventory them. Once creditor notices go out, those creditors have several months in which to make their claims against the estate. Executors also have months before they need to file the last income tax returns or any estate tax. Still, none of those things explain why some estates take far more than a mere six months to be fully settled. Other delays can be caused by the following factors:
- A multitude of beneficiaries can complicate the process. As a rule, estates that have many beneficiaries typically take longer to probate due to the need to properly communicate with every one of those heirs. When those heirs are scattered across multiple states or nations, that process can take even longer.
- Executors who lack the skills needed to effectively complete probate. If your estate’s executor is basically incompetent, then he or she might be plagued by a lack of organization or an inability to focus on the task at hand. That can make the entire process drag on.
- Tax issues. The main tax delay typically occurs in the area of estate tax obligations. If the estate is large enough to trigger those taxes, then it might take the executor time to get all the requisite information together. When taxes are due, everything related to asset distribution gets put on hold until the estate tax return is accepted by the IRS. That means that no money or assets go to heirs until the IRS evaluates the return and approves it – and that can take as much as a year to happen.
- Will contests or other beneficiary actions can slow the process too. If someone challenges the will, then there will be court processes to contend with – and that can slow the process considerably. If there are disagreements among family members that spill into the courts, the entire process can be disrupted in ways that cause probate to last far longer than it should.
- Complex estates can take longer to probate as well. Estates that contain assets with questionable value can also experience unexpected delays. For example, how much is Uncle John’s comic book collection truly worth? How do you assess those oil rights that he had? What about assets that take time to liquidate before they can be distributed to multiple heirs? Obviously, estates that contain simple, easy-to-distribute assets can generally be settled far more easily than those with more complex holdings.
Probate Time Estimates and How to Avoid Those Delays
As a rule, you can expect probate to take anywhere from six months to a year in most average cases. Simple probate matters can sometimes be handled more rapidly, while complex estates can take years. That can create hardship for heirs who are relying on their inheritances for financial support, but there are few options for speeding up the process once the decedent has died. Prior to death, he or she can ensure that steps are taken to minimize the need for probate, using trusts and other tools to secure post-death transfer of most assets. Once his life is over, however, probate will occur at its own pace and there is little that can be done to change things.
So, how long does probate take? The honest answer is that it takes longer than most people would prefer, and far longer than some can wait. That’s why it’s so important for all of us to consider what we can do to ensure a smoother transfer of our assets to heirs when we die. At the Potter Law Firm, our experienced probate attorneys are here to help you create the estate planning strategy you need to minimize probate’s impact on the lives of those you leave behind. If you’re ready to learn more about how you can minimize the effect that probate delays could have on your estate, contact us online or call us today at (704) 944-3245 (Charlotte, NC), (606) 324-5516 (Ashland, KY), or (859) 372-6655 (Florence, KY).
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