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How Long Will Probate Take?

Beneficiaries Who Get Along vs. Beneficiaries Who Don't

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One of the first questions I'm asked when I sit down with the Personal Representative of a new estate is "How long is probate going to take?" The answer depends on many factors:

Where does the Personal Representative live?

With modern technology, where the Personal Representative lives in relation to where the attorney handling the estate is located shouldn't be a big deal. But practically speaking, the distance between the Personal Representative and the attorney does matter. When I work with Personal Representatives located close by, they can come into to office with little notice. When I work with Personal Representatives out of town or in another state, quick meetings just can't happen. Aside from this, most documents filed with the probate court require an original signature of the Personal Representative, so faxed or emailed signatures won't do. Thus, the closer the Personal Representative is to the attorney, the more quickly things will get gone.

How many beneficiaries are there, and where do they live?

For all practical purposes, the more beneficiaries involved, and the farther away they live from the attorney handling the estate, the longer probate will take. This is simply a function of the time it takes to send documents to, and receive documents back from, multiple beneficiaries.

How much will the beneficiaries disagree?

It's highly unlikely that two beneficiaries will agree on everything let alone 3 or 4 or more. Some beneficiaries may even hire their own attorneys to monitor the probate process, and these types of attorneys tend to nit pick at every single thing that the Personal Representative does. Suffice it to say that the more the beneficiaries disagree, the longer probate will take.

Is there going to be a will contest?

A will contest is a legal proceeding that's initiated to invalidate a Last Will and Testament. Will contests are based on four arguments: (1) the Last Will was not signed with the appropriate legal formalities; (2) the Last Will was procured by fraud; (3) the Last Will was procured under duress and undue influence; and/or (4) the person making the Last Will lacked mental capacity to do so. Suffice it to say that if a will contest is involved, then the probate proceeding will remain open for a very long time.

Is the estate taxable?

If so, then the estate is most likely going to take longer to probate than a nontaxable one. This is because a taxable estate can't be closed until a closing letter is received from the state taxing authority and/or the IRS. And these days I've waited anywhere from 6-8 months after filing an estate tax return with the IRS before receiving any type of response.

How complicated are the assets of the estate?

If the estate is comprised of a house and a bank account, then probate of these assets should be relatively simple. But if the estate is comprised of a house, a bank account and an interest in the family business, then the administration of the estate can get complicated.

Keeping all of these factors in mind, if everyone gets along, the assets aren't complicated and the estate is nontaxable, then the probate process should take less than a year. But if not, then the probate process can drag on for several years.

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