Probate is an important part of the estate planning process, as it usually sets the timeframe from your death to the total dissolution and distribution of your estate. However, contrary to popular belief, probate does not always last forever. The probate proceedings process can be truncated, sped through, or even skipped depending on the circumstances, the size of the estate, and your level of preparation.
On other hand, probate can last an exceptionally long time, especially when little to no thought is given to an estate plan. A year or so is not uncommon, and some larger and more complicated estates may even have to count on two or more years before the process has ended. It is impossible to give an accurate estimate without professional consultation.
Some of the factors that determine the length of your probate proceedings include state and county laws, the size and value of the estate, the complexity of the assets and property within the estate, family relations, the total number of beneficiaries, debts, and taxes. Here is a breakdown of how it all comes together.
What Is the California Probate Process?
The purpose of probate proceedings is to determine the total value and obligations of a decedent’s estate, serving first the estate’s debtors and creditors (within a certain ruleset), and then its beneficiaries. The probate process also provides a venue for a presiding judge to hear a family’s concerns regarding the estate, and rule on them (i.e. contested wills). The courts do not go through the process of sizing up and dividing an estate.
Instead, they pick an administrator/executor to do so while overseeing the process. The testator (or decedent) usually names their administrator in their will, but if no administrator was named (or if all named administrators have died or declined), then the courts will pick one based on the circumstances and their competence. Generally, an adult relative, such as a spouse or adult child, is chosen.
It is often also the administrator’s job to kickstart the probate process to begin with, by filing a petition for probate as soon as the decedent’s death certificate has been notarized. It is then the administrator’s job to take stock of the estate, provide accurate valuation, keep an inventory, move any and all assets and manage their upkeep before they are distributed, take charge of the decedent’s final obligations such as bills, debts, and taxes, and finally distribute what’s left – all in accordance with the decedent’s wishes.
Determining a decedent’s wishes, in this case, requires a last will and testament. This is a document that must be witnessed and notarized for it to be valid, with certain exceptions being much more difficult to validate (e.g. last-minute or deathbed wills, handwritten wills, and oral/nuncupative wills).
If no valid will exists, then all assets are distributed in accordance with the state’s intestate laws, which generally rule that the surviving spouse gets half of everything, and the rest is distributed between the next of kin. By the end of the probate process, the estate is dissolved, and all its contents will have been distributed equitably either in accordance with the decedent’s wishes or intestate law.
How Long Is the Probate Proceedings Process?
Probate proceedings can take months or years, depending on the estate. Complications usually cause probate to take much longer in some cases than in others, as do complexities. For example, larger estates with assets that cannot be easily or accurately valued require the hiring of an expert for a valuation. In estates where assets are kept in different states or even different countries, the process of determining how best to facilitate the transfer of said assets can be arduous.
Determining the estate’s total value at death is critical, as it bears relevance to whether the estate owes taxes to the state or federal government, as well as how the estate should be split. The interpretation of the will, and the distribution of assets can take time as well. An important part of the probate process is the notice to creditors, essentially sending out a public notification to any debtors who are eligible to collect on the decedent’s debts.
Creditors are given a certain time limit from the date they were notified of the testator’s death to present their claim against the estate. That time limit must be respected before the estate can be distributed among its beneficiaries, and it is set to four months in California. If beneficiaries somehow disagree on the validity or interpretation of the will, or begin to contest it, then that too can drag out the probate process as it turns the whole thing into a legal battle between multiple camps.
Any mistakes or irregularities in the will can complicate probate, especially if there are suspicions that a will might be fraudulent. If an estate includes a home, and the home is not explicitly passed onto a single beneficiary within the will, then many probate processes can include the lengthy and burdensome sale of a home, in order to liquidate its value and split it among the eligible beneficiaries. This, again, can drag out the length of probate.
Is Probate Always a Lengthy Process?
Most states simplify probate for most Americans by making it easy for smaller and simpler estates to simply skip through most of the process and go about their lives. While probate is lengthy for the largest and most complex estates, estates under the total value of $166,250 can skip probate in California via a Small Estate Affidavit.
Furthermore, estates above that value which remain relatively simple in size and scope are usually resolved within a few months. The estimated timeframe for the average estate is considered 9 months to 1 ½ years.
Can Probate Be Avoided?
Yes, although it may not always be worth it. Smaller estates have little to worry about when it comes to probate proceedings, provided they were properly prepared. A simple estate plan and a quick professional evaluation can help ensure that you are well prepared.
But when an estate is sure to be complex and require a long probate process, it may be in your best interest to seek ways to minimize or even eliminate probate. The two main ways of doing so are through funding the estate into trusts and utilizing beneficiary clauses. Certain accounts and property can be transferred upon death without probate by naming a beneficiary (or several beneficiaries) in a deed.
Trusts, on the other hand, allow you to create a legal entity that holds your assets and properties “in trust” for designated beneficiaries, while an assigned trustee fulfills the role of administrating, managing, and distributing the trust upon your death or incapacity. However, trusts can take considerable time and resources to set up and manage. Speak to a professional to figure out if they are a good option for your estate.
Do You Need Help During Probate?
The larger an estate, the more help you will need. Simple estates – such as those where there is only one beneficiary, a comprehensive will, and no debts – usually will not require the help of an attorney. On the other hand, larger estates with complicated assets (such as businesses, and financial instruments) may require professional valuation.
A probate attorney will eventually become necessary in cases where there are disputes within the family, or an unclear will. You might have to sell some properties. And when the estate has assets in different states or countries, professional legal help will certainly be necessary.