As the saying goes, “The wheels of justice grinds slowly.”
Probate proceedings are no exception.
Pretty much whenever court proceedings are involved, you should expect that things will not finalize in the soonest possible time. Court proceedings are conducted according to rules with specific timelines which are intended to facilitate fairness to both parties.
The more adversarial the parties are, the longer the process tends to take.
This is showcased perfectly when we take a look at probate proceedings.
Even the most efficiently conducted probate will likely take an average of about 12-18 months to complete. And that’s assuming the standard milestones of probate complete in record time.
If you mix in will contests and various disputes brought by interested parties, this average timeline will take longer. On the extreme end, we have the example of the estate of J. Howard Marshall which took a record long of approximately 20 years to complete.
In this article, we take a look at the various disputes or litigation claims that can push probate to years before closing.
120 Days to Revoke Probate
Probate is initiated with a petition for probate. Typically, the initiating petition will seek the approval of the will, if there is one, and the issuance of letters for the personal representative.
Many might assume that once the will is approved, the matter automatically proceeds to probate.
However, California Probate Code §8270 gives a window of 120 days within which an interested person who did not receive notice of a will contest can file a petition to revoke probate.
The same provision, Probate Code §8270(b) provides that if a person who was a minor or who was incompetent and had no guardian or conservator at the time a will was admitted to probate may petition the court to revoke the probate of the will at any time before entry of an order for final distribution.
To put it another way, even when a will has been admitted to probate, the probate of the will may still be revoked – even after 120 days by any interested person who did not receive notice of a will contest, or anytime before probate closes if there was a minor or incompetent person who had no guardian or conservator at the time the will was admitted to probate.
In practical terms, this means that the person bringing the petition for probate should make sure that all interested parties are properly notified, not just of the petition but of any will contests brought by interested parties. There also has to be some kind of awareness of the status of these interested persons – minors and persons lacking capacity have to have a guardian or conservator or the notice requirement with respect to them would be pointless.
The impact of these challenges can be significant. If a petition to revoke probate is granted, the court effectively undoes all that has been done so far because the legal foundation for the existing probate administration is flawed.
If a will was admitted, the probate will have to proceed as though there is no will, and the court needs to determine whether a different will needs to be validated, or if things should proceed intestate (without a will). The selection and appointment of the personal representative, including the issuance of their letters, would also have to be reexamined and redone, if necessary. This is particularly impactful if final distribution was already completed. The entire process will have to be redone.
Ownership Disputes
Once probate has been initiated, one of the most common disputes that arise are those pertaining to the ownership of property. The question then becomes whether property belongs to the estate or not.
This type of legal matter falls under a Probate Code §850 petition.
Property may be claimed to belong to the decedent, or property ostensibly belonging to the decedent is being claimed by another person. A petitioner who goes to court invoking §850 is asking the court to determine ownership of the contested property.
This type of petition can go on for some time, involving the presentation of evidence of ownership by both sides, which may involve documents, witness statements, even expert testimony. Either way, probate cannot proceed until all property is accounted for, and a final inventory can be made of the estate assets, which means any §850 must first be resolved before probate can close. Depending on each case, these types of petitions can prolong probate by months, even years..
Delays Due to the Fiduciary
Sometimes, the delay in a probate proceeding comes from human error. That is, the personal representative, the one granted authority through the letters issued by the probate court, may simply not be doing their job.
Personal representatives are obligated to make periodic reports, not only to the beneficiaries and interested persons, but also to the court. But what happens if the entire process grinds to a halt because the personal representative is suddenly non-responsive?
Under Probate Code §10950, the court, on its own motion, or any interested person through a petition, compel an accounting from the personal representative. This is done if more than a year has passed since the letters were issued and no accounting has been filed by the personal representative.
But what happens if there is still no action by the personal representative?
Citation and Surcharge
If the personal representative still fails to respond to an order from the court to provide an accounting, the court may issue a citation requiring the personal representative to appear before the court at a time and place specified in order to provide an explanation.
Depending on what happens, if the personal representative fails to appear on the date and place specified, or fails to provide a reasonable explanation, the court may impose sanctions, order the personal representative to comply with specific court orders, or remove the fiduciary altogether.
If the personal representative’s failure to act results in damages to the estate or to the beneficiaries, the court may find the personal representative liable for surcharge.
If the personal representative disputes this liability, this leads to surcharge proceedings.
The citation and the surcharge proceedings can delay the probate proceedings significantly.
As with most disputes, the process involves the presentation of evidence and the exchange of arguments from both sides. This becomes a litigated proceeding, and unless resolved satisfactorily, effectively freezes the probate process until its resolution.
Conclusion
How long probate proceedings take depend entirely on how complicated an estate is, but more importantly, whether any disputes are raised during its duration.
Even the largest estate can close in record time if everything proceeds without conflict. But where there are claimants raising conflicting claims, litigation enters the mix, which can prolong the probate process until the issues raised are resolved.
Whether you are a personal representative or an interested party, any dispute that affects the administration or distribution of an estate should be addressed with the guidance of a probate dispute attorney. Reach out to us today for a consultation and we can help clarify your options and help you move the process forward efficiently.