How Long Does One Have to Probate a Will?

By Joe Stone

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.

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.

Probate Benefits

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.

Protect your loved ones. Start My Estate Plan

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.

Protect your loved ones. Start My Estate Plan
Must All Wills Be Probated?

References

Resources

Related articles

Does an Executor of a Will Receive More?

The job of an executor is to handle the estate of the deceased. In most cases, the deceased names the executor in his will. When there is no will, or when an executor can't complete the task, a probate court will appoint one. Under state probate rules, executors are responsible for filing the petition of probate and the will with the probate court and then seeing the process through to final distribution of the deceased's assets. Acting as an executor can be a complex and time-consuming process, but fortunately state laws also allow for fair compensation to executors from the estate assets.

How to Settle an Estate After a Death Without a Lawyer

When it's time, a probate court will handle your estate. State law and court rules govern the process, so they can vary a little by jurisdiction. Having a legal representative might be helpful for an executor, but it's not necessary. If you feel strongly that your executor should have legal guidance, you can include this requirement in your will.

Idaho Law Regarding Death & Probate

When an Idaho resident dies, his property may be subject to probate. Probate is the process of transfering ownership of a decedent's property to others. Probate courts appoint executors, also called personal representatives, who have the job of transferring a decedent's property to heirs. Not all estates require probate. Some estate planning tools, called will substitutes, bypass probate court. Trusts and joint tenancies are examples of will substitutes.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

Can I Decline Probate?

“Probate” is a term used to describe the legal process of distributing the estate of a deceased individual, and it ...

AZ Statute of Limitations for Contesting a Will

Arizona offers three types of probate proceedings: informal, formal and supervised. Supervised probate is rare and ...

When Will Heirs Receive an Inheritance After Probate?

Probate is the process by which a court authenticates an individual's will, and grants a personal representative the ...

How to Prove an Estate Is Insolvent in Connecticut

When a person dies, his or her debts do not simply go “poof” and disappear. If an estate has any assets, all debts must ...

Browse by category
Ready to Begin? GET STARTED