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why probate takes so long and how to avoid it by davis law group pc

Why Probate Takes So Long and How to Avoid It

September 17, 2020 Douglas Davis

After a loved one dies, their money and property must be distributed to the right people, either according to their will or the state’s default distribution scheme.

Even if you are staying on top of the process, probate can take a minimum of 12 months and sometimes stretches out for years – yes, years. These delays often create unnecessary stress, especially for families who are in need of access to those accounts or property in probate.


So Why Does Probate Take So Long?


  • Paperwork. Managing probate-required paperwork can be a monumental undertaking with structured timelines and court-imposed deadlines.
  • Complexity. Estates with numerous or complicated accounts or property simply take longer to probate, as there are more items to be accounted for and valued.  At a minimum, accountings and inventories must be filed and approved by the court.
  • Probate court caseload. Most probate courts are dealing with high caseloads and limited staff.
  • Challenges to the will. Heirs, beneficiaries, and those who thought they’d be beneficiaries, can object to and challenge the will’s instructions and legal requirements. While state law dictates the length of the time period during which they must object, will challenges can add years to the probate process. Some of the most common challenges include assertions that the will maker was:
    • Lacking testamentary capacity (i.e., lacking the legal or mental ability to make a will)
    • Delusional
    • Subject to undue influence (wrongful pressure to do something they didn’t want to do)
    • A victim of fraud
  • Creditor Notification. The deceased person’s creditors must be notified of the deceased person’s passing and the probating of their estate so they have time to submit any legal claims for debts. This time period also varies from state to state, but it is generally four to nine months.

The bottom line is that, while most state probate laws are designed to keep the process moving along in a timely manner, that’s more of a plan than a reality.


Avoid Probate Delays with a Trust


Simply put, had the deceased person created a trust to hold their accounts and property, the long, complicated probate process could have been avoided. By creating and funding a trust, those accounts and property are no longer viewed as being owned by the deceased person and are not subject to the supervision of the court. Their distribution is controlled by the instructions left in the trust agreement. Administering a trust instead of a probate is usually quicker – meaning that beneficiaries receive assets more quickly, costs are reduced, and stress levels are kept to a minimum.


Take Action Now


First, if you need help settling a probate estate, our Estate Attorneys can help you move the process along and remove some of the burden so you can move on with your life. Second, we can help you make sure you never burden your loved ones the way you’ve been burdened by walking you through an estate plan which includes a trust. Give us a call today. As an added convenience to our clients, we are able to meet via telephone or video conferencing if you prefer.