Probating a will involves court procedures to supervise the distribution of estate assets to the beneficiaries as provided for in the will. These procedures are governed by state law and the length of time you have to start probate varies from state to state. Some states have no set deadline or statute of limitations to start probate. However, if state law makes probate mandatory for proper administration of the deceased's estate, any unreasonable delay in probate may have adverse consequences.
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Consequences of Delaying Probate
Delaying probate can have adverse consequences for the executor or beneficiaries of the deceased's will. For example, in Texas, a will cannot be probated if proceedings are not started within four years of date of death. Also, real estate included in the deceased's estate that is purchased after this deadline by a good faith buyer will be recognized as valid under Texas law -- regardless of the consequences for any beneficiary of the will. In California, there is no deadline for probating a will. However, Probate Code Section 8001 requires the executor named in the will to open probate within 30 days of learning of the deceased's death or risk being denied appointed as executor for delaying the proceedings.
Although probate is often described as time consuming, expensive and something to be avoided, there are benefits to be realized from properly probating a will. For example, simply having an executor appointment by the probate court to administer the estate establishes a legitimate forum for the proper administration and ultimate distribution of the estate assets according to the will. This will facilitate dispute resolution in situations where there may be many beneficiaries with differing ideas of how the estate should be handled, especially if there are strong disagreements that indicate a potential will contest. Another important aspect of probate proceedings is the handling of claims against the estate by creditors, particularly claims that are disputed. Opening probate proceedings will set a deadline for creditors to pursue claims against the estate, which is typically short in duration such as 90 days in Nevada.
Summary Probate Procedures
State laws generally recognize that probating a will for an estate with a small value and limited assets should not be subject to lengthy and expensive court proceedings. For example, Texas law allows an estate that does not include any debts secured by real estate to use a simplified process called "muniment of title" to transfer the real estate to the beneficiaries. Florida law provides for “summary administration” in situations where the estate’s value is $75,000 or less and there are no debts or the estate creditors do not object. These types of procedures shorten the time that would otherwise be required to probate a will and are available in all states.
Delaying vs. Avoiding Probate
It is important not to confuse delaying probate proceedings with avoiding probate. Generally speaking, avoiding probate requires proper estate planning during the deceased’s lifetime and is not a decision for the executor or beneficiaries post-mortem. In some situations, estate property may be transferred without probate court involvement depending upon the type and value of the property, such as in California where a bank account with less than $100,000 can be transferred by submitting a proper affidavit to the bank. However, it is only when the executor delays taking appropriate action that he may be precluded from acting as executor of the estate.
References & Resources
- Texas Probate Code: Probate and Grant Of Administration – Section 73
- California Probate Code: Section 8001
- Nevada Legislature: NRS 147.040 - Claims Limit on time for filing.
- The Butler Firm: Overview of Muniment of Title Process in Texas
- Elder Law Answers: Why Plan Your Estate?
- Affidavit for Collection of Personal Property (Cal. Prob. Code Sec. 13100)
- The Florida Bar: Probate in Florida
- USLegal: Affidavits and Summary Administration Laws - Texas Small Estates Law
- Elder Law Answers: What is Required of an Executor?