If you find yourself involved in the probate of an estate for one of several reasons, and you have never been through the probate process before, you likely have a number of questions about the process itself and your role within the process. One of the most common questions people who are involved in the probate of an estate have is “how long does take?” Because the probate of an estate is such an individualized process, there is no way to provide a universal answer to that specific question. There are, however, a number of factors that typically influence the length of time it takes an estate to get through the probate process.
What Is Probate?
When someone dies, the individual 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?
The estate left behind by a decedent is as unique as the decedent. As such, the probate of no two estates is exactly the same, making it impossible to provide a universal estimate for the time it takes to get through the probate process. There are, however, common factors that help determine how long it takes to get through probate, including:
- Formal probate vs. small estate administration – some estates will qualify for an alternative to formal probate known as “small estate administration.” If a small estate alternative 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.
- Estate assets – 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.
- Litigation – 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.
- Creditors – each individual state decides how long creditors have to file a claims against the estate. The probate process cannot come to a conclusion until that statutory time has passed because probate must remain open for them to file their claims.
For additional information, please download our FREE estate planning worksheet. If you have additional questions or concerns regarding the probate process, contact the experienced New Hampshire estate planning attorneys at DeBruyckere Law Offices by calling (603) 894-4141 or (978) 969-0331 to schedule an appointment.