How Soon Must a Will Be Probated After Death?

By Anna Assad

A will is probated to legally appoint the executor named in the document and settle the affairs of the deceased person. Once a will has been probated, the executor is given the legal authority to access, transfer and sell the assets of the estate as directed by the will's provisions. Some states have deadlines for probate after a person's death, but the limits vary by area.

Function

The executor accounts for the estate's assets, handles the actual transfer or sale of assets and accounts for his actions to the court during probate proceedings. Legally enforceable final debts must be paid out of the estate, and the executor is given the ability to access accounts that belonged to the deceased person, like checking accounts, in order to pay bills and protect assets. Probate is often started as soon as possible after the person dies because situations that threaten the estate's assets may arise, like an overdue mortgage on a home the person owed. Some states require the filing of an existing will of a deceased person even if the will is not going to be probated, but deadlines vary by state.

Effects

The proposed executor has a number of activities to perform after the petition has been filed for the will to be probated. All of the deceased person's heirs must be located and notified of the proceedings. Creditors with a claim to the estate are notified by the executor and she must prepare a detailed inventory all debts, assets, items and income of the deceased person. Probate may be prolonged if the executor cannot locate heirs or account for all assets of the estate. The executor receives Letters Testamentary, a document proving she has the authority to control the estate, after the initial probate proceedings are completed.

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Considerations

The heirs of the estate have the right to contest the validity of the will once probate proceedings are started. A will contest may extend the amount of time needed to probate the will, as hearings on the matter and a trial may be needed. While some state have laws dictating how soon a will must be offered for probate after the person's death -- like four years in Texas -- the length of the probate proceedings is generally not limited by state statutes.

Misconceptions

A will may be offered for probate even after the time to legally probate the will under state laws has passed if the reason for the delay is acceptable in probate court. Some states allow late probate if the delay is not the fault of the person filing, like when a will is being hidden or withheld by another person. A late probate filing to clear up questions surrounding the legal ownership of an estate asset may be permitted. However, the court may not appoint an executor during probate proceedings commenced after the state deadline.

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References

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