How Soon After Death Is a Will Probated?

By Beverly Bird

Most states don’t have carved-in-granite deadlines for when a will must be submitted to the probate court, or even for when the probate process must end. Among those that have rules regarding submission, the time limits range from days to years. According to Fortenberry Law, deadlines are mostly just deterrents against unhappy heirs tucking wills aside and not presenting them to the court because they’re unhappy with the document’s contents.

Deadlines for Presenting a Will

Many states’ codes use ambiguous terms, such as “immediately” or “as soon as possible” for setting rules regarding when a will should be probated. Florida wants wills submitted within 10 days of death, but you have up to four years in Texas. It’s three years in Minnesota. These rules don’t necessarily mean you can’t open probate later -- in some cases, the will might difficult to find and months could drag by before you locate it. But you must generally take extra legal steps to submit it after your state's deadline.

In some states, deadlines work in reverse. Even if the will is presented immediately in New Jersey, the court will hold onto it until 10 days from the date of death before officially admitting it for probate. This gives interested parties time to challenge entry of the will.

Even states that have no deadlines sometimes have other provisions in place to avoid delay. For example, a New York court can fine the person who held the will for too long if creditors or beneficiaries are financially harmed because of the lapse. The fines are turned over to the injured party or parties.

Tip

Your best bet might be to check with legal aid or a local lawyer to find out what the exact rules are in your state. They can vary a great deal and you won’t want to step outside the law or jeopardize the estate.

Deadlines for Closing the Estate

A lot must happen between the time a will is presented the court and when bequests are finally made. An executor must collect and inventory all the deceased’s assets. She must identify his creditors and make sure they receive notice that he’s died so they can make claims to the estate for payment. Property may have to be appraised and tax returns must be filed for the deceased’s last year of life and, in some cases, an estate tax return might be due as well.

All this takes time, and courts recognize this, so deadlines for wrapping up the probate process usually come with exceptions as well. California requires that estates must settle and close within a year of the executor taking office, or 18 months if an estate tax return must be filed. But if she’s unable to meet this deadline, she can simply file a status report with the court explaining what the problem is. Courts won’t force an estate to close prematurely while there are still outstanding issues, and most don’t have deadlines by which probate must be completed.

About the Author

Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.

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