In California probate proceedings are governed by the Probate Code which sets forth certain time limits. Once a petition for probate is filed, you will receive a date for the first hearing in which an administrator or executor is appointed. The hearing is often 2-3 months after the petition has been filed. Once the representative has been appointed, notice has to be given to creditors of the decedent. Creditors have four months after publication of the notice of probate or 60 days after receiving actual notice, whichever is later to file a claim. Then the process begins of collecting and valuing the decedent’s entire asset, paying the debts, taxes, possibly liquidating some assets, and finally distributed the assets to the heirs or beneficiaries.
The normal time for probate in San Diego County is between 9 months and 18 months. There are a number of factors that may make the probate process take longer. Some of these are:
1. Many beneficiaries 2. Beneficiaries that cannot be found 3. A will contest brought to dispute the validity of the will. If a contest is filed, it will have to be decided before the estate can be distributed. Sometimes this can take years if there are depositions that have to be taken and either mediation or a trial. 4. Disagreements among the beneficiaries such as who should be the administrator, whether the accounting is accurate, whether there are beneficiaries that should be disqualified, or having to set up a guardianship of the estate for minors. Each time a petition or motion is brought in the probate matter to resolve a disagreement; it lengthens the time for closing the estate. 5. A taxable estate. If the estate has to pay federal estate tax, this can delay closing the estate. This is not a problem for decedents who passed away in 2010, however in 2011, if the Legislature does not act, the federal estate tax threshold will revert to $1 million making many more estates subject to estate taxes. 6. A complicated estate with unusual assets. Typical estates consist of real property, bank accounts, investment accounts, etc. If one of the assets is a business, however, it can take time to appraise such an asset. The same is true of oil or mineral rights or other unusual assets. If there are many assets, it can also take additional time to appraise all the assets and liquidate them if they need to be.
Roy M. Doppelt
While the trend these days is for people to live well into their 80s and 90s, I’m hearing more and more about the unexpected deaths of people in their 30s, 40s, and 50s. During my 15 years of practice I’ve met with my fair share of young widows or widowers or the parents of a child who died unexpectedly, and in all cases but one there wasn’t any estate planning done. And even in the one estate where the deceased husband did have a will, it had been written while he was still single and lived in New Jersey and it hadn’t been updated after the birth of his child, his second marriage, or even after the couple moved to Florida. What a mess that was to deal with and I hate to say this, but in the big picture the young family probably would have been better off without any will at all instead of an extremely old and out of date will. I can’t emphasize enough how important it is for everyone, young and old alike, to have an estate plan. But as my example of the young husband who failed to update his will after major changes in his life demonstrates, that’s really not enough. You also need to make sure that all of the important documents that are included in your estate plan – wills, trusts, powers of attorney, advance medical directives – are kept up to date and change as your family, finances, and the law change. This will require a yearly meeting with your estate planning attorney, but that’s OK because you need to understand that estate planning is not a one shot deal but an ongoing process. And the time to start the process or continue the process is now.