When you think of estate planning goals, the first thing that comes to mind is likely the distribution of estate assets after your death or providing for loved ones after you are gone. While these are certainly common – and important – estate planning goals, there are a number of additional goals that you may also choose to include in your estate plan. Probate avoidance, for example, is a common secondary estate planning goal. In order to understand why probate avoidance is such a common estate planning goal, however, you need to know more about the probate process. Specifically, it helps to understand how long it can take to probate a Will if you are trying to understand the need for probate avoidance strategies in your estate plan.
What Is Probate?
At the time of your death, you will leave behind an estate that consists of all assets owned by you, or in which you had an ownership interest, at the time of your death. Those assets must now be transferred to new owners; however, before that can occur a number of other steps must take place first. All of these steps occur during the process known as probate.
Common Probate Steps When You Probate a Will
Once you have a better understanding of the numerous steps involved in the probate of a Will, it becomes much more clear why so many people choose to include probate avoidance strategies in their estate plan. Although every estate is unique, there are some steps that almost every estate must take as it makes its way through the probate process, including:
- Identifying and locating assets. The person named as the Executor in the decedent’s Last Will and Testament is in charge of overseeing the probate of the estate. One of the first things the Executor must do is to identify and locate all estate assets. Those assets must then be secured.
- Categorizing estate assets. Not all assets are required to go through the probate process. For this reason, the Executor must categorize all assets as probate or non-probate assets.
- Initiating the probate process. To get probate started, the Executor will need to submit an original copy of the decedent’s Will along with a petition to probate the estate to the appropriate probate court in the county where the decedent was a resident at the time of death.
- Notifying creditors. All creditors of the estate have the right to file claims against the estate. To notify creditors that probate is underway, a notice of probate must be published in a local newspaper. Creditors then have a statutory time period during which they may file a claim. Failing to file within that time period forever bars them from making a claim against the estate.
- Reviewing creditor claims. Each claim filed must be reviewed by the Executor and approved or denied. Approved claims are paid out of available estate assets. If sufficient liquid estate assets are not available to satisfy all approved claims, estate assets may need to be sold to raise the necessary funds.
- Litigating challenges. If anyone challenges the validity of the Last Will and Testament submitted for probate, that challenge must be fully litigated before the probate process can move forward.
- Calculating and paying taxes. Every estate is potentially subject to federal estate taxes and some estates are also subject to state estate taxes. All taxes owed by the estate must be calculated and paid.
- Transferring assets. Finally, the remaining assets need to be transferred to the intended beneficiaries and/or heirs of the estate.
Factors that Impact the Time It Takes to Probate a Will
Because of the unique nature of the probate process, it is impossible to provide a universal answer to the question “How long does it take to probate a Will?” In the State of California, however, probating an estate will take a minimum of four months because creditors have at least that long to file a claim against the estate so you cannot conclude the probate process until that time has elapsed. Beyond that, the two major factors that will impact the amount of time it takes to probate an estate are the size and complexity of the estate and the choice of Executor. As a general rule, the larger and more complex the estate is the longer it takes to probate. In addition, the right Executor will move the probate process along in an efficient manner whereas the wrong Executor will cost the estate both time and money.
It should now be clear why people wish to avoid probate when possible. If you have additional questions or concerns relating to the probate of a Will, or wish to discuss probate avoidance strategies for your estate plan, contact the Collins Law Firm by calling (310) 677-9787 to to reserve for one of our Free Estate Planning Workshops.