To any family undergoing the transition through a loved one’s loss, the priority is taking time to mourn and honor their passed family member with the memorial and the rites they wanted and deserved. What families do not want is to be interrupted with a long, extended, and at times even unnecessary probate process.
Yet for many people, probate is unavoidable. Learning what this process is, how long it takes, and how to shorten it can help you prepare an estate plan that will ensure that your family’s mourning is not interrupted once you pass away.
Understanding the Probate Timeline and Process
The probate process describes “proving” a person’s will, to fulfill their wishes and distribute their estate in the matter they saw it fit. During this process, a family can come together to present a valid last will and testament. If several different versions of wills exist, and there are disputes as to which version is the most valid, the probate court will evaluate the decision and choose which version of the will to follow. A will can also be contested, if the accusatory party has proof that the will is illegitimate.
A will is illegitimate if the person who wrote it did so under duress, or if some other form of fraud was involved in crafting the will. Proving this can be very tough. In most cases, however, the probate process smoothly goes over the will, elects a representative to execute the will, giving said representative the power they need to take care of the decedent’s final financial obligations and distribute their wealth.
If a will is not present, and no other form of estate planning is used, then a probate court will distribute the estate as per the state’s intestate law. This means that all your belongings will go to your spouse and your next of kin. If a will is present, then a representative of the deceased’s estate must file the deceased’s death certificate and their will to start the probate process, and then petition to become the will’s executor.
From there, it is a long process of waiting for any creditors to make a claim against the estate, dealing with any last financial obligations and debts, rounding up every part of the estate to create a comprehensive inventory, and working alongside the beneficiaries of the estate and the family’s attorney to resolve the process as soon as possible. The exact length of the process depends entirely on the size of the estate, and several other factors – but at a minimum, you can count on about nine months to a year.
Length of the Probate Timeline, Determining Factors
Many things affect the length of the probate timeline, but these are the factors that are most important.
- The size of the estate: The larger and more complex an estate is, the longer it takes to resolve all confusion and completely distribute every element of the estate.
- The number of beneficiaries: The more beneficiaries a decedent has, the longer it takes for the executor to get around to completely distributing the estate.
- Family issues and strife: Will contests, arguments, uncertainties and fundamental disagreements between beneficiaries can massively complicate things. Inheritance is never a “smooth” subject, but the larger the family, the more difficult things get.
- The estate plan itself: Estates are taxable, to a degree. Most estates are not large enough to worry about the current estate tax law, and California has no state estate tax laws. However, for larger estates, or for decedents who cut into their estate tax exemption through a lifetime of gifting past the yearly allowed gift tax limit, there may be considerable costs to consider. Sorting these out can take time.
Other factors to consider include the nature of the decedent’s financial dealings, and the extent to which they owe money to creditors.
To Hire a Probate Attorney, or Not to?
It has not always necessary to consult a legal professional in every legal matter, but estate planning is not something you want to do off anecdotal research and online articles. Not only are inheritance and tax laws different from state to state, but the best course of action for an estate plan depends entirely on the estate and your capabilities, financially and time-wise.
While having a probate attorney around to help you better understand the probate process and prepare your family for it with a solid estate plan, it is best to involve a family member as your chosen representative and will executor, rather than a professional.
Not only is it more cost-effective, but it is best to choose someone you trust to distribute your wealth as you see fit once you pass away. However, probate is not always necessary. Depending on the size of your estate and certain circumstances, you could skip the probate process with the help of a legal professional.
Avoiding Probate Court
The probate process is not usually elective, but there are exceptions – most notably, when all the assets in your estate are part of a trust, then there is no need for probate because, effectively, there is nothing to pass through the probate process.
Probate is required to legitimize a decedent’s will and watch over the inheritance process, to ensure that the decedent’s property passes on. But in cases where the property has already passed into another form of ownership, probate is not necessary. Trusts and accounts that are payable upon death are two examples of estate planning tools that allow a person to make sure their assets are accounted for before they die.
A will, technically, is not so much a declaration of transferred ownership, but instructions for a personal representative/executor to take control of your possessions (through the power of the probate court) and pass them onto your relatives and loved ones.
Probate is not always a bad thing. While it can take a while, smaller estates can pass through probate more quickly than larger ones, by petitioning for an expedited probate process through a lawyer. While a trust can help you skip the probate process, it also takes time to set up and manage, and it still takes time to transfer ownership of each asset in the trust from the grantor (the deceased) to each beneficiary.
However, in cases where your estate is larger, more complicated, or designated to be passed onto a very complicated family, a trust can be just what you need. It is best to contact an estate planning professional with a thorough understanding of the situation in California, to personally evaluate your estate and help you make the best and most efficient choice. It is important to remember that this is not legal advice, and there is no cookie-cutter way to deal with the issues listed in this blog page.