Probate is the legal process a person must go through to settle the estate of a deceased person who died with a will. The average probate process can be anywhere from a few months to over a year; the time frame varies widely by state. The length of time to probate a will depends on a sum of factors, like state requirements, the heirs and the amount of assets involved.
Probate proceedings are used to validate a will, account for the deceased person's assets, settle estate disputes and give legal authority to the named executor. An executor is a person specified in the will by the deceased person to oversee the estate and carry out the final directions and wishes. If the executor is unable or unwilling to perform as such, the probate of the will may be delayed until the successor executor named in the will, if any, steps forward.
Read More: How Soon Must a Will Be Probated After Death?
Once an executor is named, the matters of the estate can be handled, including the maintenance of assets and payment of bills. Delays in probate can cause the estate to lose assets, such as a house the deceased person owned being foreclosed on because the mortgage was not paid. The executor may be able to receive an order in court allowing him to perform limited actions to protect estate assets, but the court has the final say.
Unexpected issues with the deceased person's legal heirs may delay probate by months or even years. If the proposed executor does not know where an heir is, he must make diligent attempts to find her and prove to the court he did so. The court may require the executor run public legal notices of the probate petition for weeks in different area newspapers. If the executor knows the location of all heirs and is able to obtain written consent to probate from each one, the proceedings typically move faster.
A challenge from the heirs as to the validity of the will can drag out the proceedings. The heirs have the right to petition the court to contest the will's authenticity, the testator's mental state at the time of the will's execution, and other legal reasons. A trial may be initiated if the judge decides the claims have some possible merit.
An heir can still stall probate proceedings with a challenge if the will has a "no contest" clause; he forfeits his share of the estate if the will is found to be valid, but is not legally prevented from bring the motion forward.
Errors or omissions in the probate petition may delay probate proceedings. A simple typographical error should not hinder proceedings, but an omission of an heir or gross underestimation of the estate's value may cause substantial delays.
Anna Assad began writing professionally in 1999 and has published several legal articles for various websites. She has an extensive real estate and criminal legal background. She also tutored in English for nearly eight years, attended Buffalo State College for paralegal studies and accounting, and minored in English literature, receiving a Bachelor of Arts.