Timeframe for Probating a Will

By Ciele Edwards

Probate exists not only to simplify the process of distributing the assets of a deceased person, known as the decedent, but also to ensure that creditors receive the payments to which they are entitled from the decedent's estate. A personal representative, also known as an executor, works with the probate court to distribute assets according to the decedent's wishes. State laws dictate how long an estate can remain in probate.

Time Frame

Each state has its own probate guidelines that determine how long a given estate can remain in probate. For example, according to the Oregon State Bar, the average probate case in Oregon takes anywhere from six to nine months. The State Bar of Wisconsin, however, notes that a Wisconsin probate case can take up to two years and sometimes longer.

Contributing Factors

Factors other than state laws influence the length of time an estate remains in probate. In general, larger estates remain in probate longer than smaller ones because the court and the executor need more time to distribute the ample assets of a large estate. A small estate can take longer in probate, however, if complex issues arise during the asset distribution process, such as a family member contesting the validity of the deceased's will.

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Considerations

While most estates enter probate, not all do. Probate simplifies the property transfer process, ensuring that major assets, such as a home or car, are transferred into the beneficiaries' names from that of the deceased. If the deceased left behind no large assets, probate may not be necessary. Smaller assets that lack a title, such as jewelry or other personal belongings, can be transferred to the decedent's heirs without the court's aid.

Creditor Claims

The executor must notify the decedent's creditors of her death. This gives them the opportunity to file payment claims with the probate court. Just because the probate case is still open, however, does not mean that creditors can file claims at any time. State laws vary, but some states stipulate that creditor claims are only valid for a certain period of time. Oregon, for example, gives creditors a maximum of four months to file payment claims against the deceased's estate.

Reopening Probate

After the court pays off the deceased's creditors and distributes his assets, it closes the probate case. In some cases, however, an individual can petition the court to reopen the probate case. Reopening a closed probate case is not common, but can occur if additional assets were discovered after the probate case closed or if any assets the probate court distributed were titled improperly. State laws vary regarding the requirements for reopening a probate case, but, in general, the case will remain open only long enough to address the new assets or errors before closing a second time.

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Estates, which are made of the assets of the decedent, are considered a legal entity under state law. This legal entity is designed to conclude the decedent's financial affairs and transfer his property to his beneficiaries and heirs. State law governs estate and litigation rules; therefore, it is important to seek the advice of legal counsel in order to comply with any special rules. For example, in response to the recent foreclosure epidemic, Wyoming recently passed a law governing the foreclosure process when the homeowner has died.

Florida Probate Court Laws of the Deceased

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