October 16, 2013

How long does probate take?

It is well-known that probate is a very long judicial process. The following are some of the required steps to be taken in probate, though the process for each estate is unique.

First a personal representative must be appointed by the court. Second, following appointment of the personal representative, they must inventory the decedent's assets and have them appraised. Third, the personal representative must satisfy all valid outstanding claims against the decedent's estate. Fourth, the personal representative must petition the probate court to terminate the probate proceeding, i.e. petition for final distribution. 

A natural question then is, how long should probate take?

Depending on which county, probate typically takes between 7-12 months to complete. One reason for the gap is because some courts have a clogged probate calendar so hearing dates are scheduled far in advance. In particular, I have heard from other attorneys that Los Angeles County has a lengthy waiting period when filing new probate cases. Furthermore, sometimes it is difficult to locate beneficiaries or assets. Without a distinguishing description, a beneficiary can easily become ostensibly "anonymous." For instance, if the beneficiary's name is John Brown, it might be cumbersome for the executor to ascertain which John Brown the testator was referencing in their will.

It should be noted that there is no accelerated probate process. At the very least, 6 months are taken up by 3 steps. First, a petition for probate is typically calendared at least 1 month in advance. Second, the window to file a creditor claim is 4 months months. Third, a petition to distribute the estate is typically calendared at least 1 month in advance as well. Thus the beneficiary of an estate has to wait at least half a year, whether they like it or not.

(b) In an estate for which a federal estate tax return is required, within 18 months after the date of issuance of letters. 

Thus, a beneficiary does not have to wait an indefinite period of time without recourse. 

For example, in early 2013, Thomas writes a will and passes away on August 15, 2013. In the will, Thomas names his neighbor Enzo as the executor and bequeaths his entire estate, which consists of a $600,000 home in Campbell, CA and a $50,000 bank account, to his nephew Boris. Enzo applies to become the executor and is appointed such on November 1, 2013 by the probate court. Upon becoming executor on November 1, 2013, Enzo needs to either petition to close the estate or file a status report by November 1, 2014. The reason that Enzo is not given 18 months is because no estate tax is due for Thomas' estate. The estate tax threshold in 2013 is $5.25M, which Thomas' estate obviously falls below. Thereby 12 months, instead of 18 months, is used as the measuring window of time.