Probate is the legal process of settling a person’s financial affairs after they die. And like most things in the law, it takes a while. There are many moving parts, and it can get confusing if you haven’t been involved in probate before (and honestly, even if you have).
So how long does probate actually take?
The short answer is anywhere from three weeks to several years. The American Bar Association estimates probate takes around 6-9 months*. Other surveys put that figure closer to 18 months*, which is definitely closer to what we see at Atticus (avg. ~13 months).
It also depends on how large your estate is. Settling small estates (like <$10k in assets) are way shorter on average than larger estates. On the other side of the bell curve are estates with >$5mm in assets. Those often take years*.
Every estate is unique, though. And therefore every probate proceeding is different, but we can classify probate into three main phases: initiation, assets, and closing.
In each phase, there are several factors that can affect how long the probate process takes.
Here are several of the main delays people experience while probating an estate. The extra time needed for each factor will vary depending on the estate and its needs. Each of the times below is an estimate.
Typical Probate Timeline
Phase 1: Probate Initiation
Do we even need to probate the estate?
The first question you have to consider is whether the estate even needs to go through probate. The unfortunate reality is that most estates do have to be probated, but there are exceptions.
In most states, if the total of the estate’s assets is smaller than a certain amount (for instance $75,000 in Florida), you can file a small estate affidavit. If you file a small estate affidavit, you can typically avoid probate, which means a person’s assets could potentially be distributed within a few weeks of death.
This depends on how the assets are classified as well. For a breakdown on thinking through probate initiation and determining what level of probate is best for you, check this out.
Atticus Estimate: If the estate qualifies as a small estate, plan on one to two months before assets may be distributed.
How familiar is the executor with the probate process?
Probate requires a lot of the executor (also known as the personal representative) of the estate. If the executor is unfamiliar with this process, it takes time to learn which forms you need to fill out, which assets to catalog, and when everything needs to happen.
Familiarity with the process can decrease the total length of probate, and you don’t always need a lawyer. It really depends on the variables, but Atticus is a fantastic resource for executors who are unfamiliar with the process & want some clear guidance on how to think through all of these questions.
Atticus Estimate: If the executor is unfamiliar with the probate process, plan to add one month to the total length of probate.
Does the deceased have a will?
After a person dies, one of the first items of business is to find the deceased’s will. The will can impact the length of probate. It can also help in determining the deceased’s assets, which is important because that determines whether an estate needs to be probated at all.
But many people die without a will. About half, in fact*. And if that’s the case, you will follow the intestacy laws of whichever state the deceased live in. This means that the court decides how to distribute the assets, which can add several months to the probate process.
Atticus Estimate: If the deceased had no will, add 2-3 months to your probate timeline.
Does the executor live in the state where the deceased died?
Each state has different probate laws, and probate of the deceased’s estate will take place in the state where the deceased lived. More technically, where they were domiciled.
If the executor lives in a different state than the deceased, they may be required to travel back and forth or appoint someone living there to help with some of the legal affairs. This travel time or management can slow down several steps of the process, simply because it’s easier for the executor to be in the state where probate is taking place for many of the steps.
As our communities become more global and our work more remote, living in the same state as the deceased is less likely.
Atticus Estimate: If the executor lives in a different state than where the estate is probated, add 2-3 weeks to your probate timeline.
Phase 2: Inventory of Assets
Non-liquid Assets
The assets phase is when the estate’s assets are located and, if necessary, sold to pay the estate’s debts. In most cases, not all of the assets can or need to be sold. After the debts are settled, the unsold assets are distributed to or split between the beneficiaries.
However, some assets are easier to sell than others. Furniture for instance is usually easier to sell than a house, especially if you want to get a fair price for it.
Atticus Estimate: If the estate has a lot of non-liquid assets, plan to add 2-4 months to the probate process.
Debt
As mentioned earlier, when a person dies, any debts they have are rolled into the estate. Before any of the assets can be distributed to the beneficiaries, the estate's debts must be paid. If an estate has significant debts, the probate process might be extended while the executor settles those debts with the creditors.
Atticus Estimate: If the estate has many or large debts, plan to add 1-3 months to the probate process.
Phase 3: Closing
Number of Beneficiaries
The number of beneficiaries largely depends on the wishes of the deceased, which are usually expressed in the will. Generally speaking, the more beneficiaries there are, the longer it takes the courts to finish the probate process.
Atticus Estimate: If the estate has more than 10 beneficiaries, plan to add two months to the probate process.
Taxes
At the end of the probate process, the executor tallies up the expenses in their estate account and files a tax return for the estate. If the estate is large or financially complicated, it will take longer both to file a tax return and to receive word from the IRS that it’s okay to distribute the assets.
Atticus Estimate: Plan for the estate’s taxes to take about a month.
Will Disputes
Sometimes, the beneficiaries disagree about how the deceased’s assets should be distributed. These disputes happen both when there’s a will and when there isn’t. These disputes often require the parties to hire lawyers and take the dispute to court — these are legal proceedings known as will contests.
The law moves slowly. Of all of the delays on this list, this one is by far the most time consuming. It requires back and forth paperwork, courtroom hearings, and sometimes even a trial.
Atticus Estimate: If the beneficiaries disagree about the distribution of assets, plan for an extra six months to two years before the estate closes.
The three phases described in this article are an oversimplification of the probate process, but within each, there are important steps that can streamline or stymie the process.
To recap, based on the size of the estate, you might be able to avoid probate altogether. If you can’t, some of the factors that extend the process in the initiation phase are the deceased’s will (or lack thereof) and the executor’s location and familiarity with probate. In the assets phase, probate timing can depend on the liquidity of the estate’s assets and the amount of debt the estate has. In the closing phase, the number of beneficiaries, the complexity of the tax report, and any contest over the will or distribution of assets can extend your probate timeline.
Remember that even at its fastest, probate is a slow process. As the executor, many of the factors listed above are completely out of your control. So, as hard as it may be, be patient with the process.
And if you’d like to figure out what level of probate you need / potentially skip it, likely shorten how long you’re in probate since you’ll always know what to do next, and get constant access to advice like this at no-brainer cost, then you should really check out what we’ve built.
