Probate, trust, guardianship and inheritance litigation
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Why Does Probate Take So Long?

By:  Jeffrey Skatoff, Esq.

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.  The following articles explain the process in greater detail in two states:

Who Gets Notice When an Estate is Opened in Pennsylvania?

Who Receives Notice of Probate in Florida?

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.

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.

Can a Living Person Do Anything to Make Probate Faster For When They Die?

Yes, there are several ways that probate can be avoided or shortened so that the process does not take such a long time.  There are various forms of holding assets that do not require the assets to go through probate.   There are many assets that are not part of the probate estate.   For example, holding property jointly with rights of survivorship will automatically transfer ownership to the living person upon the death of the first joint owner.  Another common way in which probate can be avoided is by adding a Pay on Death or Transfer on Death designation to the asset.  Most banks and brokerages allow accounts to be titled in this manner.  If an account has a Pay on Death designation, the persons designation will become the owner of the account upon the death of the account holder, without the necessity of going through probate.  Similar to a Pay on Death designation is a beneficiary designation, whereby the account or other asset will pass to the named beneficiary without probate.  Life insurance is the most common asset held with beneficiary designations.

Holding assets with a joint owner, using Pay on Death designations, and using beneficiary designations is by far the most efficient way in which to avoid probate completely.  These techniques, however, are not suitable for every person, nor for every asset.  There are two significant problems with holding assets jointly.  The first is that the asset is potentially then subject to any creditor claims of the new joint owner.  For example, if a widow adds her son to her house as a joint owner with rights of survivorship, her house is then potentially subject to creditors of her son – for such things as child support and alimony.  The second problem is that it precludes the ability to change one’s mind about who is to receive the asset.  (In some states, it is possible to remove the survivorship provision with a new deed, but the joint owner will nevertheless retain joint ownership for the property.)

A wholly different set of problems can arise from using pay on death designations.  For example, a widow owns a bank account worth $100,000, and a brokerage account worth $100,000.  She makes one child the pay on death beneficiary of the bank account, and the other child the beneficiary of the brokerage account.  The child who is to receive the brokerage account becomes power of attorney and accesses the mother’s accounts to pay her bills.  That child then proceeds to exclusively use the checking account to pay bills, depleting its value, while the value of the brokerage account grows.  The child who receives the depleted bank account could then consider a lawsuit against the sibling for depleting his asset while preserving hers.  Because litigation avoidance should always be a primary goal of estate planning, only a careful application of pay on death designations should be used.

One obvious way to speed up the probate process, as opposed to trying to avoid it, is to put the original will in a place where it can quickly be found – for example with the drafting attorney or with other important papers.  If the original will is located within a safe deposit box and the decedent is the only person listed as the owner, court proceedings will be required to open the safe deposit box and retrieve the will.

Do Revocable Trusts Make Probate Faster?

Revocable trusts certainly make the probate process faster and easier.  But they do not solve all problems.  For starters, the assets within a revocable trust are subject to the creditor claims of the decedent.  If the trustee of the revocable trust makes distribution to the trust beneficiaries leaving insufficient assets to pay creditors, the trustee might face personal liability to the creditors.  Therefore, many trustees will open probate, publish notice to creditors, and pay any creditor claims before making distributions to the beneficiaries of the revocable trust.  Additionally, state law might require that the trustee of the revocable trust furnish the beneficiaries with accountings of the trust and make other disclosures.   Even if the trustee decides to “clear creditors” before making distributions to the beneficiaries from the trust, the process will in most cases be faster than if there were no such trust.  Additionally, the trustee will be permitted to make interim distributions to the beneficiaries, even before the creditors are cleared (but only if the trustee has a high level of confidence regarding the potential creditor claims).

The worst possible estate plan is where some assets are placed by the decedent into the revocable trust before death, but other assets are not.  In such an instance, probate administration and trust administration might be required – the worst of all possible worlds.  Probate can take a long time when assets are in several different places.

How Can I Receive Some of My Inheritance Immediately?

Some companies provide an advance on one’s inheritance.  Typically, these arrangements involve a probate advance company purchasing a portion of the beneficiary’s share of an estate, for less money than the ultimate amount of the inheritance.  Although these arrangements can be somewhat expensive, for people who need to receive a portion of their inheritance immediately, a probate advance can be the best solution.  Read more about Whether You Should Obtain a Probate Advance.

Jeffrey Skatoff is a Florida probate attorney.  To have Mr. Skatoff review your case free of charge, please go to his website.

Probate attorney Jeffrey Skatoff handles probate, trust, guardianship and inheritance litigation.

Jeffrey H. Skatoff, Esq.

Probate, Trust & Guardianship Litigation

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