Are There Time Limits in Will Probate?

by Beverly Bird

    Like most fields of law, probate is riddled with court-imposed deadlines and structured timelines. Most are designed to keep the process moving along in a timely manner so an estate can close within a reasonable period of time. Others prevent creditors from harassing heirs and beneficiaries years after a loved one’s death. But even with these safeguards, the probate of a large, complicated estate can be a long, drawn-out process.

    Submission for Probate

    Most states limit the amount of time that heirs have to produce a will for probate and get the process started. Because individual states make their own probate laws, these time frames can vary widely. Barring special circumstances, such as if heirs don’t discover a will until after the allotted time has passed, Texas bars probate four years after the decedent’s death. In Montana and New Mexico, the limit is three years, but in Pennsylvania, heirs have 21 years to apply for administration of the decedent’s estate.

    Creditors

    As part of the probate process, the executor of a will must notify the decedent’s creditors that he has died so they have time to submit claims for the money he owed. This time period varies from state to state as well, but it is generally six to nine months. In most states, the calendar pages begin turning when creditors receive notice. Other states, such as New Mexico, will not accept claims beyond a year after the decedent’s death. An executor must also pay any taxes the deceased owed at the time of his death. Under federal law, the executor has nine months from the date of death to file an estate tax return with the Internal Revenue Service, if the estate requires one. The decedent’s individual income tax return is due the same time everyone else’s is, on April 15 of the new tax year after the year in which he died.

    Challenges

    When heirs or beneficiaries are unhappy with the terms of a will, they also have a limited period of time to make their objections known. In all jurisdictions, they can file will contests at any time prior to the document’s submission to the court for probate. Once the probate court receives the will, however, time limits are enforced. In most states, the limit is two years. Montana allows one year for small estates probated in a simplified or informal procedure; with other estates, the state allows three years from the date of death. Most states’ codes and statutes provide for exceptions, however. Minors usually have two years after reaching the age of majority to challenge a will, and this supersedes other deadlines.

    Other Limits

    Some states, such as New Mexico, have “reverse” limits. In these states, the courts will not admit a will to probate until a certain amount of time has passed since the decedent’s death. In New Mexico, this is 120 hours, or the equivalent of five days. If a creditor wants payment, but no one has opened probate for the decedent who owes money, some states will allow the creditor to step up and apply to serve as executor or administrator of the estate to get things moving along. A creditor must usually wait a matter of months from the date of death before doing this. In New Mexico, the waiting period is 45 days.

    About the Author

    Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.

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