When someone dies, their estate needs to be settled. The process takes upwards of a year or longer. But why?
Even under ideal circumstances, probate is a lengthy process. This is more by design than accident. Here are some of the reasons why the probate process can take so long.
- Paperwork. Probate is a very paperwork intensive process. It includes filings, petitions, notifications, accountings, and other items. Each item has its own guidelines, requirements, and timelines. Failure to complete the right paperwork in the right way at the right time can result in being put back months while the correct paperwork is completed.
- Mandatory Waiting Periods. At several points during the probate, various persons and entities need to be provided notification. Notifications are typically followed by a minimum waiting period to allow for those notified to get counsel, file objections, or file claims. The longest of these waiting periods is four months to allow creditors to discover the estate and file any claim before permanently losing their ability to collect on debts owed by the deceased.
- Complexity of the Estate. Some estates are simply more complex than others. This might be due to the assets of the estate or the number of beneficiaries or the steps needed to settle the estate. Some issues can be spotted early on to minimize the impact while others have to be dealt with as they arise. Being able to identify and deal with complex issues during probate can make the difference between one delayed for a few months and one delayed for a year or more.
- Will Contests. It is not uncommon for those who feel they have been shorted by the deceased’s Will to contest the Will’s legitimacy in court. They might claim that the Will is fraudulent, was created using undue influence, or that the deceased lacked capacity and understanding necessary to make a Will. These contests can add years to any probate as the court considers the claims of each party. In some cases, discovery and full trials may be necessary to determine the circumstances surrounding the creation of the Will.
- Court Caseload. It is no secret that our courts are overloaded. More people than ever are dying, most with little or no estate planning. Add on to that budget cuts and hiring freezes within the court system itself. All this leads to delays of weeks and months before court hearings.
What To Do If You Find Yourself In A Probate?
If you find yourself involved in a probate, as an executor, heir, or otherwise, there’s a few things you should do.
First, get the advice of legal counsel knowledgeable about probate. Probate is a legal process, so you should have an attorney who can let you know what is normal and what to expect. It is even better if you can off-load some of that responsibility onto the attorney as well. The savings in time and money from using someone who can get you through the process as quickly as possible can be well worth it.
Second, learn when to be patient. There’s a lot of rushing and working followed by periods of waiting. Knowing when you need to be patient can help give you breathing room. It doesn’t matter how simple and straightforward the probate really is, patience can really be a virtue here.
Finally, be proactive but flexible. When you find yourself in a waiting period, it is sometimes a good idea to look ahead. Discover what is the next big hurdle and what you need to do to prepare for it. Often, there will be some information gathering that will make the next step run smoothly. But don’t make the mistake of locking yourself in. Be flexible enough to change your plans and approach as necessary.
How To Avoid Probate Altogether?
If you are worried about your loved ones dealing with probating your estate, then you are not alone. The trick is to take steps to avoid probate now, while you are still alive and in good health. Speaking with an estate planning attorney to learn about what you can do is an important first step. This attorney can create a probate avoidance strategy that can be put into place by either your attorney or yourself.
Procrastination is the biggest enemy here. We all think and believe that we can take care of this tomorrow. And there will certainly be several tomorrows. But one day it will be too late. So plan to avoid probate today so your loved ones don’t have to deal with it tomorrow.