2890 N. Main Street, Suite 206 • Walnut Creek, CA 94597

Probate Takes Time

When John was named the executor of his mother’s estate, he expected the process to take a month, at the most.  “After all,” he told his wife, Holly, “Mom didn’t have much. I’ll just fill out the forms and turn over the will, and I’ll be done.  Easy peazy.”

Probate Takes TimeHolly smiled at her husband, her eyes filled with amusement.  “I think you’re being overly optimistic, dear.  It took my friend, Sandy, over a year to close her mother’s estate.  Relatives and supposed heirs were coming out of the woodwork contesting the will, and some of the creditors were pretty unreasonable when she tried to settle her mother’s debt.  It was a regular soap opera.”

Holly pointed to the folder that held her mother-in-law’s estate plan.  “You’d better start going through those papers and see what’s there, then contact an attorney so you can figure out the next step.  I know that you do have to submit something to the Probate Court, I’m just not sure what that is.”

When a California resident dies, their assets and liabilities are considered to be their “probate estate.”  Generally, any assets in the decedent’s name become part of that estate, except for assets that have a designated beneficiary, such as life insurance, a trust, or property held jointly, for example, a residence.  Whether a resident dies with or without a will, a qualifying estate must be submitted to probate.  This process ensures that all liabilities assessed against the assets of the probate estate, such as taxes and a creditor’s claims, are settled before any heirs receive their inheritance.

In California, probate usually takes between eight months to two years.  That time frame, however, is dependent on many factors, including the size of the estate, the nature of the estate’s assets, the ease of identifying and locating all qualifying heirs, creditor’s claims, the court calendar in the county where the decedent lived, and the accuracy and clarity of the decedent’s will or estate plan.  In addition, unforeseen consequences, such as challenges to a will or the location of heirs can result in significant delay.

The process begins by filing a petition with the probate court, requesting “Letters Testamentary.” These legally authorize a person or persons to administer an estate.  Depending on a court’s workload, it can take several months before that authority is granted.

Once the Letters Testamentary are issued, the process moves to administrative tasks.  Generally the executor or personal representative is responsible for collecting information on assets, liabilities, and heirs.  In some cases, assets may require a valuation by an appraiser or probate referee, and other valuations may be dependent on information from third parties, such as the government, brokers, banks, realtors, and financial institutions.   Each valuation and information request builds delay into the process because the administrator is dependent on the availability and workload of other professionals.  Special problems and delays may also arise when out-of-state heirs or property are involved.

In addition to the time it may take to collect such information, several mandatory notice periods are triggered by the probate process.  For example, anyone who benefits under the will must receive a 15-day notice that a Petition for Probate will be filed, as well as a 15-day notice prior to any hearings pertaining to the will.  In addition, creditors have four months from the granting of Letters Testamentary to file a claim.

Once all appropriate information is collected, the estate administrator must determine how assets should be allocated, make arrangements for the sale or distribution of property, prepare tax returns and an accounting for all heirs, and then seek court approval before the final distribution of assets is made. When an estate consists of few assets, this may take a minimal amount of time. When an estate is complex, more time will be required.

The probate court monitors the administration of the estate and at its discretion, may require approval before certain actions are taken.  Seeking court approval, as well as scheduling hearings, can result in even further delay, especially in counties where court dockets are already backlogged.  There is no way to speed up this process.  It is dependent solely on available court personnel and the rate at which they are able to manage their workload.  And no one estate is given priority over another.  An estate is adjudicated in the order in which it is received.

A well-drafted estate plan can contribute much to the smooth administration of an estate.  Every error or omission adds to the administrative burden, sometimes resulting in delays of weeks to months.  However, while agonizing over the time it takes to probate an estate, some comfort may be found in the fact that it will never be the longest probate to take place in California history. There is one home in this state that has been in probate since 1925!

 

 

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Probate Takes Time
2890 N. Main Street, Suite 206
Walnut Creek, CA 94597

925.943.2740

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