Why does probate take so long?

Probate takes a considerable amount of time for two main reasons:  the necessity of providing all interested persons with due process, and the creditor claims period.   Other reasons probate can take such a long time can include resolving tax matters, litigation, and finding missing heirs.

How Does a Probate Estate Begin?

Typically, the probate process begins by the filing of the original will with the court where the decedent last resided (if there is a will), and a petition to commence administration.  Either before or after the probate court appoints a personal representative, notice will need to be provided to all beneficiaries of the estate. 

What Are the Deadlines and Timelines for Probate?

Each state has different rules for the procedures and timing of probate.  The following is a list of the states for which a deadlines and timelines chart is available.

• New Jersey
• Illinois
• Pennsylvania
• North Carolina
• Ohio
• New York
• Texas
• California
• Florida

Why Does the Creditor Claim Period Cause Probate Delays?

For relatively simple estates where there is no litigation, the creditor claims period is by far the biggest source of delay in the probate process.  All states require not only that a Notice to Creditors be published in a local newspaper, but also require that a Notice to Creditors be mailed to every reasonably ascertainable creditor.   Most states require that the creditor claims period, during which creditors may file creditor claims with the estate, be open for three months filing the first publication of the Notice to Creditors.

Historically, many states only required the publication of a notice to creditors without the necessity of sending known creditors a copy of the notice.  Such a procedure was obviously prejudicial to creditors who did not read the particular newspaper every day where the notice was filed, and to creditors who were in another state.  The United States Supreme Court remedied this obvious due process violation with its opinion in Tulsa v. Pope, 584 U.S. 478 (1988).  There, the Supreme Court held that a Notice to Creditors was required to be mailed to every reasonably ascertainable creditor.  As explained by the Court:

As the Court noted in Mullane, “[c]hance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper.” Id., at 315. Creditors, who have a strong interest in maintaining the integrity of their relationship with their debtors, are particularly unlikely to benefit from publication notice. As a class, creditors may not be aware of a debtor’s death or of the institution of probate proceedings. Moreover, the executor or executrix will often be, as is the case here, a party with a beneficial interest in the estate. This could diminish an executor’s or executrix’s inclination to call attention to the potential expiration of a creditor’s claim. There is thus a substantial practical need for actual notice in this setting.

 

At the same time, the State undeniably has a legitimate interest in the expeditious resolution of probate proceedings. Death transforms the decedent’s legal relationships and a State could reasonably conclude that swift settlement of estates is so important that it calls for very short time deadlines for filing claims. As noted, the almost uniform practice is to establish such short deadlines, and to provide only publication notice.

 

Providing actual notice to known or reasonably ascertainable creditors, however, is not inconsistent with the goals reflected in nonclaim statutes. Actual notice need not be inefficient or burdensome. We have repeatedly recognized that mail service is an inexpensive and efficient mechanism that is reasonably calculated to provide actual notice.

The waiting out of the creditor claim period that commences with publication (which in most states is three months) coupled with the requirement to provide actual, mailed notice to any reasonably ascertainable creditor is the largest source of long delay in most probate estates.  Although the Supreme Court in the Tulsa case did not rule that Oklahoma’s creditor period of two months was too short, given the due process requirements for creditors as set forth in the opinion, it is unlikely that much can be done to shorten the overall creditor claims process.

Why Does Due Process Cause Delays in Estates?

The probate process in a typical state involves providing notice to all beneficiaries as the estate is opened, so that each beneficiary has the opportunity to object to the admission of the will to probate, and to object to the appointment of the personal representative named in the will.  All states require that all beneficiaries be given such notice.  The requirement to track down each probate beneficiary can take a long time.  Each beneficiary provided notice will also have a certain time frame in which to file objections.  All of these waiting periods can add up to delay.

Near the conclusion of the probate process, the personal representative will send an accounting to each beneficiary to explain the assets, income, and expenses of the estate administration.  Most states also require that a plan of distribution be sent to each beneficiary, to explain who will receive what from the estate.  After receipt of these documents from the personal representative, there will be a period in which the beneficiary can file an objection with the probate court.  Beneficiaries also have the right to receive additional information from the personal representative, and to institute formal discovery if necessary.  These procedures can add significant delays to the process.

How Can Beneficiaries Speed Up Probate Administration?

Most states allow beneficiaries to waive certain due process rights and timelines, which can dramatically speed up the time period for estate administration.  At the front end, where the person nominated to be the personal representative applies to the probate court for appointment, the beneficiaries could sign and send in a consent form, whereby they consent to the appointment of a particular person and waive any time frame in which to object.  At the back end, the beneficiaries could all waive their rights to receive an estate accounting, which can significantly speed up the ability to close out an estate.  But whether a beneficiary should sign a waiver of accounting to shorten the time for probate depends on many factors.

What Can Be Done to Make Probate Faster?

Most states have an abbreviated form of probate.  In Florida, for example, the faster form of probate is known as a summary administration, but is only available for estates worth less than $75,000 (exclusive of a homestead residence of the decedent).  A summary administration in Florida, for example, can be completed in about 10 days, if all beneficiaries cooperate.