Inheritance tax is so high that the happiest mourner at a rich man’s funeral is usually Uncle Sam – Olin Miller
There are all sorts of unfounded rumors and old wives’ tales about probate that have helped to establish its fearsome reputation for being a grindingly slow and laborious process.
Whether those half-truths were the fault of some unfortunate soul caught in the gears of legality bemoaning their position which then passed into the common parlance or were due to the plot of a Hollywood blockbuster being taken as gospel, doesn’t matter, as probate is actually a relatively simple and straightforward process, that nobody needs to be scared of or worry about.
In the simplest terms, probate is the legal process that determines the authenticity of a will as a binding legal document in a court of law, or if there is no will, it helps to settle the estate and affairs of the individual according to the laws of the state in which the deceased was living at the time of his her death.
The length of time that probate can take even if there is a will can vary, as it depends on a number of different factors, all of which can drag the process out, or considerably shorten it.
If an executor, the person overseeing the terms and conditions of a will until they have been legally fulfilled, has been named in the will, doesn’t live in the same state as the deceased and his or her family, the terms of the will can’t be fulfilled until the executor arrives to fulfill them.
This means that the length of time probate takes can depend on how long it takes the executor to make the necessary journey in order to be present during the process.
The number of beneficiaries of a will can increase the amount of time that probate takes, as they all need to be contacted and in some cases present for the will to be enacted. The more beneficiaries there are, the longer the process can take.
And, if said beneficiaries don’t get along and argue and disagree about the terms of the will, the process can take even longer. While the dead are no longer troubled by their personal affairs, settling those affairs can demand a terrible price from the living.
If there are legal grounds upon which the terms of the will in question can be challenged or contested, such as the will being written under duress or assumed to be a forgery, and one or more of the beneficiaries decides to contest it, it can open a legal can of worms that will need to be addressed in court.
It isn’t uncommon for the legal battles surrounding a will to take a long time to be resolved to the satisfaction of all concerned parties, which means that probate can be dragged out for years and years.
The more complicated an individual’s assets and affairs were, the longer it can take to properly address and finalize them, and the longer that process takes, the longer probate will take.
All the assets must be in order before probate can be settled, so the less complicated the assets are, the more straightforward it will be to sort them and the less time probate will take.
If the estate in question owes estate taxes due to its size and worth, it can take a long time to sort probate.
The wheels of government turn slowly and the wheels of the IRS turn even slower, and in order for the will to be closed and probate to be finalized, the correct paperwork needs to be received by the court from the IRS.
In most cases, after the estate tax return is filed with the IRS it can take anywhere between eight and ten months for them to respond and send the necessary paperwork to the court, which can seem like an eternity to any and all beneficiaries of the will in question.
If the estate in question had any debts, any and all of the creditors must be paid before the beneficiaries are, and how long that takes depends on state law and the way that it governs any such payments.
It could take weeks, it could take months, but as the creditors need to be paid before the beneficiaries are, the longer that payment schedule takes, the longer probate takes.
While we’ve painted a grim and foreboding picture of the process, in almost all of the cases where the will is relatively straightforward and simple, probate can take anything from a few weeks up to a year.
But if things are more complicated, depending on the circumstances, probate can last for years.