An important consideration in probating a will is the location of the court and the condition of its docket or calendar. Courts in crowded metropolitan areas have more cases to handle; therefore, they will take longer to get your case on the schedule and through the necessary filings and procedures. Those courts serving smaller populations generally process a probate claim more quickly, possibly in a few weeks. By law, wills must be probated in the jurisdiction where the deceased last had a primary residence.
Large Estates and Creditors
Another factor is the size and complexity of the estate. Larger estates that include a wide variety of assets, such as land, homes, business interests, artwork and multiple investment accounts, generally take longer to go through probate. Whether or not there is a will, the court has to ensure the deceased had clear title to all property; probate courts will also hear any claims of lenders and creditors against the estate. When a creditor files a claim against the estate, it also has the right to a hearing, as well as the right to file time-consuming motions in probate court. If the claims are contested or negotiated in court, probate will take longer, possibly more than a year.
If the deceased died intestate, or without a will, the probate court appoints an estate administrator to oversee the division of the estate according to state law. Although these laws vary, typically a surviving spouse is entitled to half the estate with the remaining survivors having a claim to the balance, depending on their relation to the deceased. The more numerous the legal heirs, the longer it takes to distribute an inheritance to them.
If there is a will and the document names more than one beneficiary, probate takes longer. Each beneficiary has the right to representation in probate court as well as the right to have the court hear any motions to change the terms of the will. This means hiring attorneys, gathering evidence and having a judge and/or jury hear and decide any disputes in court. If the beneficiaries live at a distance, probate will also tend to become lengthier. Estate law requires that all named beneficiaries are notified of the will either by mail or personal service.
With or without a will, estates with taxable property must file with federal and state tax agencies to pay any estate taxes, back taxes, late penalties, fines and fees. The administrator of the estate must clear the property before the probate court can approve the distribution of assets. It can take six months to a year to obtain a letter of clearance from the IRS and/or the state authorities.
Some states have a "small estates" procedure that allows for a streamlined probate process. The law limits the size of the estate that can go through this process. The state of Oregon, for example, limits "small estate" probate to those estates holding assets and real property of $275,000 or less. In most states, this option is not available if the deceased died intestate. If a will exists, it must be presented to the court, a personal representative must be cleared to handle the distribution, and any claims or contests must be heard. In Wisconsin, an "informal administration" process for small estates allows much of the probate case to be handled by mail.
If you are named as the beneficiary of a trust and the trust has been properly executed and administered, it does not need to be probated. In this case, you can claim the inheritance relatively quickly. Non-probated assets pass to beneficiaries without going through probate court. The most common types of non-probated assets are those created by contracts, property law and trusts. These include life insurance policies and annuities.