What Does “Probate” Mean?

Probate is a court-administered process that analyzes and transfers the estate of a deceased individual. The estate is made up of their property, assets, and other personal belongings. The probate process tends to run more smoothly when an Estate Plan is in place. Unfortunately, delays often occur when there is no Estate Plan available (known as “intestacy”), or the estate is being contested.

Find out more about Probate here.

What are the Stages of Probate?

Probate is a formal court-supervised process that follows a strict sequence of events. Most of the steps are performed by the Executor, the individual appointed by the court to make sure that the estate of the deceased moves through probate such that assets are properly distributed to the heirs.

The deceased person can and should nominate their desired Executor in their Will. Otherwise, the court will appoint whomever they see fit, such as a family member or a court administrator.

Here are the 7 stages of the probate process:

• Probate is initiated

• Notice is given, as needed

• First probate hearing occurs

• Estate assets are inventories

• Tax returns are filed

• Estate distribution plan is submitted to and approve by the court

• Estate assets are bestowed

1. Probate is initiated

First, the court must be notified that probate needs to take place. The nominated Executor or Administrator of the estate should file a Petition for Probate, which can be done with the assistance of a probate attorney. The petition must include the decedent’s death certificate, plus their Last Will and Testament if available.

2. Notice is given, as needed

Next, the petitioner must give notice to each party who was named in the deceased person’s Will. They must also give notice to each of the deceased’s legal heirs, regardless of whether they were named in the Will.

These official notices notify all parties of the individual’s death, as well as the details of the probate proceedings. The petitioner is also responsible for sending notifications to the decedent’s known creditors, as well as publishing a notice to creditors in a newspaper that circulates in their county of residence. This provides an opportunity for credits to file a claim against the decedent’s estate in the case of any outstanding debts.

3. First probate hearing occurs

The first probate hearing takes place after preparatory steps are completed. During this hearing, the court will examine the Will and verify its validity. Next, it will appoint the Executor. Typically, this is the Executor who was nominated in the decedent’s Will and who has served as the petitioner thus far.

In the instance that there is no Will, the Court will usually appoint a close family member of the deceased person.

4. Estate assets are inventoried

Once appointed, the Executor will complete a series of administrative duties. The first step is taking an inventory of the deceased person’s estate. This includes any and all assets, property, and belongings that were not moved into a Trust. It also does not include any financial assets that have a beneficiary designation. (These commonly include life insurance policies or retirement investment accounts that pass directly to the beneficiary who is named on the account.)

During this process, they should collect any funds from debtors and pay outstanding debts. These two actions will impact the final value of the estate. Once all accounts are settled, the Executor will liquidate the estate assets so that they can be distributed to creditors and beneficiaries.

5. Tax returns are filed

The Executor also must file any applicable tax returns on behalf of the decedent and their estate. If there are any income taxes due, then the Executor must pay these out of the estate.

The Internal Revenue Service’s website offers a guide on how to file taxes on behalf of a deceased person. Executors typically must file several government forms to establish the fiduciary relationship so that they can take these actions. Another good IRS information page regarding decedent's can be found here.

6. Estate distribution plan is submitted to and approved by the court

Before the Executor can distribute the remaining assets to the decedent’s beneficiaries, they must obtain approval from the court. They must file accounting records of the estate and a distribution plan for the court’s review. This plan explains how property and assets should be distributed to the beneficiaries of the estate. Once approved, the Executor can move on to the final step.

7. Estate assets are bestowed

Once the court approves the estate distribution plan, the Executor can then distribute the estate’s remaining assets. Per the plan, the beneficiaries of the estate will inherit certain assets and property.

Note that the stages explained here can vary, and at times will not seem so straightforward. Someone might contest the Will, or a creditor could raise a dispute. These bumps in the road could add months or even years to the probate process.

How Long Does the Probate Process Take?

The American Bar Association estimates that the average timetable for the probate process across states is six to nine months. In general, the answer is less than one year.

However, there are several factors that can affect the probate timeline. For instance, if an estate is complicated, it could take an Executor or Administrator longer to inventory assets and pay debts. Further, lawsuits and contests against the Will could create delays. There are also factors that are outside the control of the decedent’s family, such as the volume of petitions awaiting probate at any given time.

For a more accurate picture of the length of probate, it’s best to research the current wait times in the county and/or state in which the decedent resided.

How Long Does Probate Take in California?

The current length of the probate process in California is longer than the national average at 18 to 24 months. (Just over a year to two years.) There are several factors affecting the length of probate in California.

The most prevalent reason is the size, population, and demographics in California. With the increased death rates from COVID-19 and the swelling elderly population, there are simply larger volumes of estates passing through probate at any given time. (This is when compared to other states.)

Earlier, we also explained how estates that are large and complex typically take longer to process. As of January 2022, California stands as home to the wealthiest population in the U.S. It’s the state with the most billionaires in the country, indicating large concentrations of wealth. With an already impacted probate court system, adding large volumes of large and complex estates adds extra pressure.

Avoid Probate By Creating Your Trust Today

The probate process takes up to a year in most states, but in California, it can take up to two years. There are several stages involved in the probate process, and the length of time it takes to complete each stage will impact the overarching timeline.

There are several things you can do to either shorten your own estates probate process or avoid it completely. The first option involves putting together a solid, valid Estate Plan, organizing your assets, and having open and transparent conversations regarding your future wishes with loved ones. This will make your Executor’s life easier. Not only will they have an easier time creating an inventory and distribution plan, there will be less likelihood of lawsuits or contests. These are all actions that can help move the estate through probate as quickly as possible.

The second option involves creating a Trust (or several) and moving all your property and assets into the Trust. This action removes your property out of your estate, meaning they will not pass through probate. This estate planning tool allows you to have more control over how your property will be distributed to loved ones.

Read more about how to leverage a Trust for your estate.

Unfortunately, there are some issues affecting the probate process timeline that are completely out of your control. In California, for instance, the sheer volume of probate cases due to economic and social factors result in longer wait times. However, this creates a strong incentive to get your solid Estate Plan in place to prevent further delays.

Don’t have an Estate Plan yet, or are not sure if your Estate Plan will move through probate quickly? We can help with that! With Trust & Will’s products, you’ll feel more confident knowing that your Estate Plan is iron-clad and ready to move through probate as smoothly as possible. We provide tools and education to help you construct the right plan for you, and in a way that makes life easier for your fiduciaries and loved ones. This includes options like creating a Trust to help you avoid probate when possible.