At some point in your life you are bound to be directly involved in the probate of an estate. Your involvement could stem from the fact that you are a beneficiary or heir of the estate or because you qualify as a creditor of the estate. You might even be named as the Executor in the decedent’s Last Will and Testament or volunteer to be the Personal Representative if the decedent died intestate. If you manage to avoid being directly involved in the probate of someone else’s estate during the course of your lifetime, you still need to know the basics about the probate process for purposes of creating your own estate plan. Whether it is because you are involved in the probate of someone else’s estate or planning your own estate, one thing you will likely want to know is “how long does probate take?”
What Is Probate?
When someone dies, he/she leaves behind an estate that is comprised of all the assets owned by the decedent at the time of death. The legal process that handles the disposition of those assets is known as “probate.” Probate also serves as a way to authenticate the decedent’s Last Will and Testament, pay creditors of the estate, and ensure that state and federal taxes owed by the estate are paid.
How Long Does Probate Take?
Because of the unique nature of probating an estate, the amount of time it takes to get through the probate process can vary wildly. Understanding some of the factors that typically impact the amount of time it takes to probate an estate may give you an idea how long it will take to get through a specific probate process. Those factors include:
- Formal probate vs. small estate administration – some estates will qualify for an alternative to formal probate known as “small estate administration.” In California, for example, you may be able to transfer property using a Small Estate Affidavit instead of going through formal probate if the value of the estate is less than $150,000. If a Small Estate Affidavit can be used it will shorten the probate process dramatically.
- Testate vs. intestate – when a decedent left behind a valid Last Will and Testament the decedent is said to have died “testate.” If the decedent did not leave behind a valid Will the decedent dies “intestate.” Probating an intestate estate can take longer because the legal heirs of the estate must be identified and located before probate can proceed whereas in a testate estate the beneficiaries of the estate are identified in the decedent’s Will.
- Probate vs. non-probate assets – some assets are not required to go through the probate process. As a general rule, the fewer probate assets the estate has the less time it takes to probate the estate. Common examples of non-probate assets include:
- Assets held in a trust
- Certain types of jointly held property
- Proceeds of a life insurance policy
- Funds held in retirement accounts
- Assets held in an account designated as “payable on death (POD)” or “transfer on death (TOD”
- Value of the estate – not surprisingly, as a general rule the more valuable the estate, the longer it takes to probate the estate.
- Type of assets in the estate – some estates consist of simple assets of modest value, such as a primary residence, a bank account, and personal property. Other estates include complex and highly valuable assets such as a business, vacation property, and complex investment accounts. Generally speaking, the more complex the assets are the longer it takes to probate the estate.
- Challenges to the Will – one sure way to hold up the probate process is to file a Will contest. A Will contest must allege legal grounds on which the Will submitted to probate can be declared invalid. If the Will is challenged, the entire probate process essentially comes to a halt while the challenge is litigated because the outcome of the litigation will determine how the probate process proceeds.
- Estate liquidity – if the estate lacks liquidity, estate assets must be sold to satisfy creditor claims and/or tax obligations. Having to sell assets can add on additional time to the probate process.
For more information, please join us for one of our upcoming free seminars. If you have additional questions or concerns about the probate process in California, contact the experienced Los Angeles estate planning attorneys at Collins Law Firm by calling (310) 677-9787 to schedule an appointment.