Perhaps one of the most common questions all people involved in probate want answered is, “How long can probate take?”
But anyone with some experience in legal proceedings will tell you that the answer is never quite so simple.
Timelines when it comes to probate proceedings can rarely be pinned down to a specific window.
For our purposes, what would be most useful is taking a look at the different standard milestones to a probate proceeding to fully understand the average window of timelines you can expect from a full probate.
Note that this discussion does not take into account any delays that might be caused by will disputes; petitions brought by heirs, successors, or even creditors; or any petition brought with respect to resolving ownership or possession issues of claimed estate assets.
For a probate proceeding that proceeds reasonably straightforward, one can expect an average timeline of from 12 – 18 months, but this can sometimes be longer or shorter. To better understand this timeline, we take a look at some of the statutory milestones below.
Initiating the Probate Process (1-2 months)
30 days to deliver the will
If the decedent died testate, or with a will, under Probate Code §8200, the custodian of a will must deliver the original of the will to the court within 30 days of learning of the decedent’s death.
This 30-day deadline is fixed and cannot be extended.
Filing the Petition for Probate
Technically, probate is initiated by the filing of the Petition for Probate, or Form DE -111.
This petition makes a request for the court to:
- Admit the will, if the decedent died with a will;
- Appoint a personal representative; and
- Issue Letters Testamentary and Letters of Administration
The hearing for the petition will be set by the clerk of court. Probate Code §8110 requires that all interested persons must be given notice of the hearing at least 15 days before the hearing date.
This 15-day notice period should be taken in the context of when the hearing date is actually set. Realistically, hearing dates are often set out after a couple of weeks to around a month, depending on the court’s calendar. Rarely are hearing dates set within the first two weeks from the filing of a petition.
Given the 30-day timeline of delivering a will, if one exists, and the logistical reality of scheduling a hearing for the petition for probate during a court’s availability, you might reasonably expect to wait around 1-2 months before the petition is heard in court and the order is issued appointing the personal representative and issuing the letters.
Appraisal and Inventory (2-5 months)
Once the personal representative is armed with the letters of authority, the administration of the estate begins.
Under Probate Code §8800(b), the personal representative is given four months from the issuance of the letters to file an Inventory and Appraisal (Form DE-160) with the court.
For small and relatively uncomplicated estates, this is probably a reasonable timeline. But for more complex estates, more time will likely be needed, which may be allowed by the court depending on the circumstances of each case.
What makes the process of inventory and appraisal of estate assets becomes clearer when we understand what is actually involved in filling up the DE-160 form. From a high-level perspective, the inventory and appraisal sets out two basic things:
- Identifying all probate assets; and
- Setting out the fair market value of each property at the time of the death of the decedent
The first challenge will be for the personal representative to identify what are probate assets. This may involve some investigation and data gathering exercises on the part of the personal representative, and where necessary, the assistance of a probate attorney to recover assets that may be in the possession of third parties.
Needless to say, the personal representative also has to devote some time to determining the character of each property and determine whether the said property is a probate or a non-probate asset.
Once the properties are inventoried, the appraisal of the properties’ values comes next.
This is usually done by a Probate Referee.
Probate Referees are court-appointed officers tasked with independent valuation of non-cash assets. And because probate referees are court-appointed, their valuation is relied upon in both the probate proceedings and for purposes of tax reporting.
The Creditors Claim Period (2-4 Months after issuance of the Letters)
One of the responsibilities of the personal representative is to give notice to all known or reasonably ascertainable creditors of the estate, This is done by the personal representative after reviewing the relevant documents, statements or accounts, and contacting the creditors directly.
Probate Code §9100(a) then provides another crucial timeline in the probate process. Creditors intending to file claims on the estate are given the following timelines:
- 4 months after the date letters are first issued; or
- 60 days after the notice of administration is mailed or delivered to the creditor
This gives creditors a fixed window of time within which they can file their claim against the estate, after which their claims are barred.
Given the initial estimate of 1-2 months within which a court issues the letters, this gives another 2-4 months for creditors to file their claim.
And yet despite this fixed claim period, the California Code of Civil Procedure §366.2 also imposes a one-year statute of limitations for claims against the decedent.
At most, therefore, claims against the decedent or his or her estate is tolled one year after the date of death, after which any and all claims are barred.
This is the reason why most probate attorneys caution against making final distributions until after the one-year statute of limitations for claims has expired.
Tax Returns and Liabilities (6-12 months)
Once assets are identified and creditor claims are addressed, the personal representative turns his or her attention to estate taxes.
Before an estate can close, the personal representative may need to file final income tax returns, fiduciary income tax returns, and any federal estate taxes where applicable.
Tax filings and resolving any government claims should not be rushed, and may, in fact, necessitate additional reviews, verification, and evaluations.
In any case, under Probate Code §9202, the personal representative is required to give notice to several government agencies within 90 days from the date the letters are issued, including:
- The Franchise Tax Board (FTB);
- The Direct of Health Care Services (Medi-Cal);
- The California Victim Compensation Board, if an heir or beneficiary of the estate is or has been incarcerated; and
- The Department of Child Support Services, if the decedent has a child support obligation under an order issued by a court of competent jurisdiction
It must be noted that government claims against a decedent or his or her estate subject to statutory time periods that are often longer than the general one-year statute of limitations for claims against the decedent. This means that even if one year has already passed from the date of death of the decedent, unpaid taxes are still valid claims and may be collected.
This is why it is imperative for the personal representative to ensure that all government claims and taxes have been resolved satisfactorily before making final distribution of the estate. Otherwise, unpaid taxes and government claims may be deemed the personal responsibility of the personal representative.
Final Accounting and Distribution (12-18 months)
Under Probate Code §12200, the personal representative is required to file a petition for final distribution or to file a report of status of administration:
- No later than one year after the date of the issuance of letters; or
- Within 18 months after the date of the issuance of letters, if a federal estate tax return is required
So the personal representative is generally expected to petition for final distribution after a year, or to at least make a report of the status of the administration of the estate. An additional 6 months is allotted for estates that are required to file federal estate taxes.
Again, this timeline is not set in stone. Depending on how the probate administration has gone, depending on the complexity of the estate and whether various contests and disputes had to be resolved during the pendency of the probate proceedings, some estates may not be ready to close after a year. But for simple and relatively uncomplicated estates, this may be doable.
Once the court reviews the records and the reports submitted by the personal representative, if all are acceptable, the court issues an order to settle account and for final distribution of the estate. This formally closes probate.
Conclusion
The concern that most people have about delays in transferring property when the estate enters probate is justified, given the estimated timelines provided above. But given that each step of the process is intended to protect the interests of all interested parties: the estate, the heirs and successors, creditors, and the personal representative, the length of time devoted to probate is more than understandable.
This is not the kind of thing that can settle within a month; nor would you want it to, if you were an interested party. The process takes as much time as needed to ensure fairness for all interested parties and a satisfactory closing of the estate.
***
If you need assistance initiating probate proceedings or managing the administration of an estate, the services of a qualified probate attorney will be invaluable. Reach out to us today to schedule a consultation.