It is virtually impossible to pinpoint precisely how long the probate process will take to complete when dealing with people’s wills. Because the probate process is set by state law, every estate administered through probate court undergoes essentially the same process.
Jump ahead to these sections:
- Typical Probate Duration
- Breaking Down the Probate Court Timeline
- Probate Court Duration: Frequently Asked Questions
However, the duration of the process for each case can vary significantly based on a variety of factors that can affect any case at any stage of the process and delay the proceedings. Curious about what may hold up the probate process? We’ve detailed what the duration may be like, and some of the obstacles that may come your way if you are dealing with it.
Typical Probate Duration
The probate court process can take anywhere from several months to several years to complete. This is just one of the many reasons why it is usually advisable to try and avoid the probate process. But sometimes administering an estate through probate court may be unavoidable.
If you do have to proceed in probate, there are many things that the court must accomplish and many procedural requirements that everyone has to follow. Oftentimes, there’s not much you can do to expedite the process in light of the detailed tasks that are required at every stage.
However, if you understand the procedural requirements and the various factors that can affect each task that is required, you may be able to avoid many of the pitfalls that might delay the process.
If you cannot avoid the requirements, you can at least approach them with realistic expectations of how long the process may take and the patience required to survive the very stressful, tedious, and time-consuming process of probate.
Factors that affect its duration
There are a seemingly endless amount of factors that can impact how smoothly your probate process proceeds. There are many stages of the process, many moving parts, and many possible participants involved in keeping the process moving forward (or grinding it to a halt). The participants in the process that can have a direct impact—positive or negative—on the duration of the proceedings may include:
- The court
- The decedent
- The attorney for the decedent (during life)
- The decedent’s estate
- The executor of the decedent’s estate
- The attorney for the decedent’s estate
- The attorney for the executor of the decedent’s estate
- Family members
- The attorneys for family members
- Financial institutions
- Life insurance companies
- Expert witnesses
- The witnesses to a will
- Notaries public
- Will beneficiaries
- Trust beneficiaries
- Trust protectors
- Attorneys for trustees
- Attorneys for trust beneficiaries
- Attorneys for trust protectors
- Contestants of wills
- Charitable institutions
Not all of these roles are relevant in every probate proceedings, but these are almost 30 parties who may participate in one form or another in any complex, but not necessarily uncommon, probate proceeding.
With all the detailed legal requirements that could be applicable at any stage of the process, any one of them could turn into a problem for any of the participants. That’s why it’s no wonder that the process can drag on for years or even decades.
Breaking Down the Probate Court Timeline
In some states, depending on the value of the estate being probated, the estate may qualify for a probate exemption and avoid many of the stages of the normal probate process. Below is a breakdown of the normal stages for the complete administration of a standard estate requiring probate and some of the factors that often delay the proceeding along the way.
Keep in mind that the greater the complexity of the assets in the estate (like a business, numerous real estate holdings, international assets, etc.), the more significantly complicated, time-consuming, and expensive any of these stages can become.
Filing a petition to open a probate. You might think that the probate process begins when someone files a petition in probate court. But it doesn’t. It actually starts before that. The probate process begins as soon as the decedent dies. Here’s why:
At the moment the decedent dies, the clock on one of the procedural rules (the “non-claims provision”) begins ticking. This rule involves the stage at which notice to creditors is required, which is described more fully below. Because the time limit on this stage of the process begins at the moment of death, the probate process actually begins at death. The filing of a petition to open the administration of the estate is simply one requirement within the entire process.
The first stage involving the court begins when you file a petition in probate court, but your preparation for filing a probate petition begins before that—as soon as the decedent dies. Even your preparation for filing can be quite time-consuming, because you must:
- Account for all of the decedent’s property
- Value the decedent’s estate
- Distinguish probate and non-probate assets
- Determine if the decedent had executed a will
- Identify and locate living heirs
- Identify and locate any named beneficiaries in a will
The time it takes to prepare to file a petition to open probate proceedings (the time between the decedent's death and your actual filing in court) could take anywhere from several weeks to several months (two to six months).
Letters Testamentary. Once you have petitioned the court, the court must appoint an executor of the estate if there was one named in the will, or a personal representative should the estate be in intestacy. To do so, the court will grant Letters Testamentary (also called Letters of Administration). Although this is not a particularly complicated task, the court has its own administrative hurdles and can move inexplicably slowly in granting orders. The normal process here should not take more than a few weeks (approximately one to two months).
If an executor is named but someone contests the appointment of the executor (perhaps claiming that they or someone else has a right to serve as the executor), then resolving this issue could delay the proceedings for several weeks or months.
Record-keeping. At every stage of the process, the record-keeping of the estate, all of its property, and the court filings can be mountainous. Simply organizing and maintaining records and paperwork can consume your time and delay proceedings.
The complexity of the case and property. The complexity of the case and the property in the estate is one of the most significant factors that can impact the timeliness of the process. Obviously, the more complicated the estate, the longer its administration will take. Factors that make for a “complex” estate can include:
- Real estate in more than one jurisdiction
- Significant tax consequences
- Significant or complex business interests
- Pending divorce litigation
- Mixed families
- Extended long-term care prior to death
- Significant debt
- Active bankruptcy proceedings or other litigation at the time of the decedent’s death
- The complexity of royalties or annuities
The court docket. Depending on the jurisdiction and the capacity of the court docket, the duration of the probate process can vary significantly. Your case is never the only case before the court.
Any will contests. Another primary factor that can introduce significant delays in the process is any contests of the validity of the will. There are two ways in which someone may contest the validity of a will, each of which includes a variety of elements, any one of which could be determined to violate the requirements for a valid will. These include:
Formalities. The formalities of a will are those requirements that the maker of the will (the “testator”) must satisfy to execute a legally valid will. There are a variety of different types of wills, each of which has its own formalities that must be satisfied.
However, the standard formalities for a garden-variety “witnessed will” include:
- A writing
- Testamentary intent
- A fully-intended signature
Considering that each of these formalities may have its own requirements that must be satisfied to be valid—any one of which could create another level of contest and round of litigation—there is a significant opportunity for contesting the validity of a will and great potential for delay.
Any given contest of a will based on a lack of required formalities could take anywhere from three months to a year or even longer to resolve, perhaps even three to nine months.
Intentionalities. Assuming any contest of the validity of the will is resolved and the will is determined to be valid based on the satisfaction of all required formalities, any interested party may also contest the validity of the will (or any part thereof) based on a lack of “intentionalities.” Intentionalities refers to any basis by which the testator can be shown to lack sufficient mental capacity to execute a valid will. These typically include:
- Lack of testamentary intent
- Lack of testamentary capacity
- Undue influence
Again, each of these intentionalities may have its own particular set of requirements that must be satisfied to be proven. Any and all of these will require litigation to resolve. Any contest based on the existence of any of these may delay the process even further, perhaps another three to nine months.
Some jurisdictions have a “pre-mortem probate” process. This process allows a testator to file their will in court before they die to have the court at least accept the validity of the will, thereby barring any contest of the will after the testator dies. This can significantly cut down on delays at this stage of the process.
Notification process. Assuming that any will that is submitted for probate is valid and the process may continue, the executor of the estate must then notify all interested parties. These may include:
- Living heirs
- Named beneficiaries in the will
The process for naming creditors can be quite time-consuming because there are two possible timelines by which notification must take place. If creditors are known or reasonably ascertainable, the executor must provide “actual” notice. This may be satisfied by sending the notice through regular mail.
To satisfy the notice for unknown creditors, “publication” notice (in a local newspaper) is sufficient. Either way, the notice process, in itself, may take only several weeks.
Once proper notice is given, creditors then have a window of opportunity to assert any claims against the estate. If probate has been filed, most states require only a short window—usually between four to six months. This deadline is known as the “non-claims” provision.
However, as mentioned previously, if probate has not been commenced by a court filing, a creditor’s non-claim deadline may remain open for as long as five years after the decedent’s death, so about one to five years.
- The satisfaction of debts. Once all creditor claims have been filed and the non-claims provision has been closed, the court will entertain and resolve all creditors’ claims to satisfy the decedent’s debts which can take three to nine months as well.
- Payment of taxes. This could take anywhere from one to three months. The executor of the estate is also responsible for paying all taxes due on the estate. This could include income taxes for the year of the testator’s death, estate taxes, and any other applicable taxes.
- Transfer titles. Once all debts and taxes have been satisfied, the court will distribute the remaining assets in the estate. The court will issue orders for all appropriate transfers of titles (3-6 months).
- Distribute assets. The court will also order the executor to distribute all of the assets in the estate according to the will or the laws of intestate succession. The executor will then distribute property, which also can take six months to a year.
- Closing of probate proceedings. Once the property in the estate has been distributed, the executor will ask the court to approve the administration. Upon approval, the court will issue a final order to close the estate. That last step can take anywhere from one to three months.
Probate Court Duration: Frequently Asked Questions
So much of the duration of the process depends on how many contests and complications arise at any given stage of the process. In light of all the stages described above, it is easy to understand why the process can drag out for so long.
How long does it take for a bank to release money after probate?
Although it does not normally take longer than two to three weeks for a bank to release money from a standard account, it is not the release of money that causes delay, necessarily. It is more often the nature and complexity of the assets that the bank holds and the internal process that the bank requires for confirming and processing probated assets.
Acknowledging receipt of probate and processing requests for closing probated accounts can often take several months to complete.
How long will it take without a will?
If an estate is probated without a will (called “intestacy”), the probate process is more or less the same in terms of the stages and their anticipated timelines.
However, it may take more time for an executor to identify and notify all of the decedent’s legal heirs.
How much can the probate process cost? And is it more expensive if it takes longer?
Depending on the complexity of the assets in the estate and the legal issues that arise throughout the process, probating an estate can get expensive. Even a standard probate proceeding will incur these typical expenses:
- Court costs
- Filing fees
- Executor fees
- Attorney fees
These expenses are generally paid by the estate and are incurred before distributing the remaining assets to beneficiaries of a will and legal heirs in intestacy.
Also, the fees for executors and attorneys are often codified in a state statute and are based on an incremental percentage of the total value of the estate. So the larger the estate, the greater the executor and attorney fees.
However, when issues arise during the probate process that require their own litigation to resolve, attorney fees can add up quite significantly.
Probate Can Be a Stressful, Time-Consuming, and Expensive Ordeal
No matter how you look at it, the probate process can be stressful, long, and expensive. Unfortunately, it is also something to be avoided if possible. If you cannot avoid it, you should at least understand it and prepare for it.
By preparing for it, you might be able to expedite the process by anticipating any upcoming issues at any stage along the way. It’s lengthy, but it’s not impossible.