Losing a loved one is a difficult time emotionally. It also can be stressful as it often entails dispersing assets left behind and dealing with creditors. In most instances, this involves an important process called probate, which is a way to wrap up your loved one’s business affairs.
Many people wonder, “How long does probate take?” That is hard to answer, since there are many variables that can impact it.
This article covers what those factors often include. Keep reading to learn more about the probate process and how it applies to your circumstances.
What Is Probate?
Probate refers to the judicial process that determines how a deceased person’s assets are distributed to heirs. It is overseen by a personal representative, which can be an executor or an administrator.
Probate involves carrying out the wishes of the decedent according to their last will and testament. If there is no will, then state law and the courts govern the process.
What Does the Probate Process Entail?
Probate can involve various steps. In general, these include:
- Application
- Preparing documents for the Court
- Preparing for a hearing
- A hearing before the Court
- Notice to beneficiaries
- Inventory and appraisals
- Debt payment or resolution
- Distribution of assets
To initiate the probate process, the executor or administrator of the estate files an application with the appropriate court. In Texas, more populous counties have a dedicated statutory probate court. In smaller counties that lack one, the petition is filed with a county court.
Once this takes place, the court will issue notice to all beneficiaries of the estate. The executor then creates an inventory of the deceased person’s debts and assets, which are then appraised.
After this phase is completed, the administrator first pays off all the deceased person’s debts. Then, the remaining assets are distributed to the beneficiaries.
Is Probate Always Necessary?
Whether or not probate is necessary or advisable is determined on a case-by-case basis.
Some factors to consider in determining to probate a will in Texas include:
- The type of assets
- The requirements of certain asset holders and institutions, such as banks, stock transferring agents, brokerages, title companies and retirement accounts
- The amount and type of debts compared to the type and value of assets
- Whether an asset needs to be transferred or requires a clear chain of title, such as real estate
- The last wishes of the deceased person
In addition, there can be circumstances where assets may be excluded from probate. These are benefits that have contractual terms that designate beneficiaries. Examples include:
- Life insurance proceeds
- 401k plans
- Pension plans
- Individual retirement accounts (IRAs)
- Medical savings accounts
Likewise, assets jointly owned with a “right of survivorship” clause can bypass probate as well.
It should be noted however, that not all such assets have a beneficiary named and, therefore, probate may be necessary to gain access to the funds held in those assets.
Another instance where probate may be avoided is when there is a fully funded trust. That is because trusts involve transferring assets to a trustee who then manages them for beneficiaries. In addition to saving time, a trust is often a popular option to maintain privacy.
How Long Does Probate Take?
The average probate length is anywhere from a few months to a few years. That depends on many different factors.
To get a more accurate answer to “How long does probate take?” it can be helpful to look at circumstances that cause it to move more slowly. Below are the most common ones.
Will vs. No Will
One of the biggest factors that can impact the probate process duration is whether or not the deceased left a valid Texas will. If they did, then the role of the court is twofold: to confirm the authenticity of the will and to grant the executor the power to carry out its wishes.
This still could entail the steps described above, such as assessments of property, but it leaves less room for disagreements regarding the disbursement of assets. It is easy to see how this can contribute to speeding up probate.
When a person dies without a will, or if the will presented to the court is deemed to be invalid, the decedent’s assets get distributed according to state law. Many people assume that the surviving spouse inherits all of the deceased person’s assets, however, in Texas, this is often not the case, especially with blended families with stepchildren. If there is no spouse and no children, then the assets may go to grandchildren, living parents, or the closest living relatives.
One of the reasons that probate without a will can take longer is that the court must identify all of the heirs and determine their share of the assets.
Assets in Multiple States
Another factor that can influence estate settlement timelines is if the deceased possessed assets in numerous states. This requires a probate process be carried out in each of those locations. Common examples include real estate or mineral rights.
In these situations, there could be jurisdictional complexities. Each state has its own probate laws and procedures, which can lead to conflicts.
It means additional paperwork, including gathering documents, in each location. It may require appointing a representative in one or more locations. This also might require coordinating the probate processes across multiple jurisdictions, which can be time-consuming.
Numerous Beneficiaries
Estates with more than one or two beneficiaries may drag out the probate process. There is a good reason for this. It is vital that all legal requirements are met and that assets are ultimately distributed fairly.
In Texas probate, all beneficiaries must be made aware that an estate is before a Court for probate or administration. Also, here are often necessary documents that each beneficiary must sign.
If there is an unresponsive beneficiary (which is more likely the more the more beneficiaries that there are), that could create probate court delays.
Learn More About the Probate Process
With some answers to “How long does probate take?” you can determine how these variables might apply to your circumstances. Regardless of what those are, one of the best things you can do to ensure the process goes smoothly is to hire an attorney experienced in probate and inheritance law.
For over 30 years, the Christopher L. Smith Law Office has been providing the highest caliber legal services to the Dallas metro area. I focus my practice on probate and estate planning, as well as all areas of inheritance and family law. Reach out to me today to schedule a consultation.
