How Long Does Probate Take? These 5 Factors Can Make All the Difference

5 variables that can impact your probate timeline

There are a lot of factors that can result in the probate process speeding up or dragging on, but there are a handful of major influencers:

1. State probate laws

The biggest reason there’s no definitive answer to the length of probate question is because it’s not nationally regulated, which means probate rules vary from state to state.

That’s why, in Texas, with its simplified process and minimal court oversight, probate can be completed within just a few weeks if all goes well. In other states, it can take up to two years.

Luckily, 18 states have taken steps to refine and simplify the probate process via the American Bar Association-approved Uniform Probate Code (UPC). Whether these states have adopted the UPC in part, or in its entirety, they’ve all taken steps to streamline the process, which in turn shortens the probate timeline.

However, things become less streamlined when the estate has assets in multiple states.

For example, let’s say the majority of the decedent’s assets, including the primary residence, are located in Texas. However, it also includes a second property, a vacation home in Florida.

In this scenario, you’ll need to open the primary probate proceedings in Texas and go through a second probate proceeding in Florida, which is known as ancillary probate.

State laws play a huge role in determining the length of probate. However, they aren’t the only factors that could influence your probate timeline.

2. The estate’s size

It makes sense that the size of the estate heading into probate plays a major role in how long the process will take. The more assets involved, the more decisions need to be made, the more paperwork that needs to be done, and so on.

However, it’s not always the amount of assets that matters. Some state laws focus more on the overall value of the estate.

The estate settlement process typically takes around 16 months. Smaller estates valued under $10K are usually settled more quickly, while larger estates worth $1M or more can take anywhere from 16 to 42 months to finalize.

Unfortunately, figuring out how much the decedent’s estate is worth according to your state’s probate laws all depends on the type of assets involved.

While the laws define which assets must go through probate and which are non-probate assets, some assets almost always require probate unless steps have been taken to avoid it.

One asset that almost always requires probate is a house. Probate proceedings are required when real estate is involved almost universally. However, some states still allow you to forego or shorten probate for low-value properties.

For example, if the total value of an estate’s real estate is less than $100,000 in Arizona, then you can simply submit a small estate affidavit to claim your inheritance.

3. Conflict among the heirs

Aside from the value of the estate, there’s another way to look at size in probate that has nothing to do with an estate’s value and assets. Look at the number of heirs or beneficiaries involved.

Even probate proceedings for lower-valued estates can become bogged down if there are multiple beneficiaries. This is especially true if there’s disagreement about how the estate should be handled.

“How long it takes to sell a house during probate depends on the heirs, and whether or not everybody’s willing to work together to get the property sold,” says Lewis.

It’s practically a law of nature that siblings will fight, but when you bring sibling bickering into the probate process, the proceedings come to a grinding halt.

The biggest dispute beneficiaries have is when one party contests the will, but the disagreements don’t need to be that massive to delay probate.

Picking fights over little things can also derail the process, such as arguing over whether or not to sell the house as-is or how much to spend on replacing the carpet if you do decide to rehab before selling.

4. Will vs. no will

Conflict between beneficiaries can often be resolved by referring to the will or letting the estate executor cast the deciding vote. But that’s not always the case.

Sometimes, the will isn’t clear or specific enough. Other times, it isn’t properly signed, witnessed, or accompanied by a notarized, self-proving affidavit. And sometimes there is no will.

When there’s a will:

Probate is typically easier — and shorter — when there’s a will involved.

When a will is well done, the decedent includes specific instructions on how their estate is to be dissolved and often names the personal representative or executor they want to handle the proceedings.

Just don’t make the mistake of assuming that having an existing, valid will means you can skip probate altogether.

Some estates require probate simply to carry out the will’s terms and distribute the estate. This is especially true if the decedent has debts and creditors that must be paid off before beneficiaries can take ownership of the assets.

And sometimes, mistakes within the will can trigger probate even if the existing will attempts to avoid the probate process.

Maybe the decedent made mistakes while signing the will, or failed to have the signing witnessed. Perhaps they simply failed to update it. For example, maybe the decedent moved out of state after completing their will, which means the existing one won’t meet the new state’s probate laws.

Of course, a will doesn’t need to be invalid for beneficiaries to contest it. Heirs could claim that the decedent was coerced into signing the will, lacked the mental capacity to understand what they were signing, or was even deceived about the contents of the will.

While there are plenty of grounds to contest a will, it’s rarely advisable, especially when there isn’t actual fraud involved.

Think twice before contesting if you’re simply looking to resolve sibling squabbling. The legal costs involved in contesting a will — both to file the complaint and defend the will — are more likely to deplete the estate’s value than resolve the issues.

When there’s no will:

There are two myths swirling around about what happens when people pass away without a will:

1. The state gets everything
2. The estate must go through probate

Thankfully, that first myth is largely untrue. The only way the state gets your stuff is if you pass away without any beneficiaries to inherit.

On the other hand, if the no-will decedent does have a spouse, children, siblings, or other surviving relatives, then they are the legal heirs, with or without a will. The state simply gets involved in the dispersal of the estate via probate. That fact makes myth two generally true.

When there’s no will, estates usually fall under intestate succession laws. However, this can vary from state to state. No-will estates don’t always require probating—especially for small estates.

Some states have laws to simplify or remove probate requirements for small or low-value estates. Others even have provisions to allow larger estates to qualify for small estate simplifications.

Simplifying or skipping probate isn’t possible in some states though if there’s a house involved.

5. Inclusion of a house in the estate

As previously mentioned, estates with a house almost always require probate. This is in part because the decedent’s home is often sold during the probate process as part of the dissolution of the estate.

Anyone who’s ever sold a home knows that the selling process is complex and potentially lengthy, even without the extra burdens added by probate.

For starters, you can’t even hire a real estate agent until the court legally names you as the personal representative, or executor, for the estate. In fact, you’re legally not allowed to do anything with the house until that happens.

This means no cleaning it out, no painting it, and no listing it for sale. Nothing.

What you can do prior to becoming named as the executor is contact a qualified probate agent to determine the home’s current market value because that can influence whether or not an estate even requires probate at all.

So, before starting proceedings through a probate attorney, the smart play is to consult with an experienced real estate agent—without signing a listing agreement, which you are not legally allowed to do if the estate is headed into probate.

There are ways for an estate to avoid probate even if there is a house attached. However, most of these arrangements need to be made before your loved one passes away.

For example, the decedent’s house can be placed into a living trust. Prior to passing away, the decedent remains the trustee and manager of the living trust.

Once they die, their appointed successor can immediately manage and distribute the trust without waiting to be appointed as the personal representative by the probate court.

However, a living trust isn’t needed when two spouses own a home together in joint tenancy or if the decedent’s estate allows for a beneficiary deed or the transfer on death deed (TOD).

Even if arrangements haven’t been made to transfer property outside of probate, the probate process is much simpler and quicker if ownership of the house is simply being transferred from the decedent to an heir.

However, when real estate is being sold during probate, the proceedings become more complex, and lengthy.

3 ways selling a house can lengthen the probate process

Maybe you’re selling your inherited home because you just can’t keep it. Or perhaps the house must be sold in order to pay off the decedent’s debts. In either case, there are three major ways that the home sale can drag out the probate timeline:

1. You’re selling in ‘as-is’ condition

The longer you live in a house, the more things you’ll find that you want to repair, or remodel. But how do you know what to fix when you’re selling a home that you’ve never actually lived in?

The answer is: you can’t know what work your inherited house needs. Luckily, this answer can work in your favor.

As always, the laws vary by state. In many states, a seller’s disclosure form isn’t required for probate home sales because the beneficiary has never lived in the house. However, in other states, you may need to disclose visible defects, even if you’re not exactly sure when or how they occurred.

So, should you invest estate assets in fixing the place up before you sell the property?

“Very rarely would I recommend pulling money from the estate into fixing up the probate property before selling it, even if the house is dated or rundown,” advises Lewis.

“At the end of the day, you won’t even break even on any money you put into it because you’re trying to fix up a property that you’ve never lived in, so you won’t know what needs to be done.”

Unless you’re selling in a red-hot market where all houses are selling fast, finding a buyer to pay what the house is worth may take time.

2. Local real estate market conditions

Knowing what’s going on in the local real estate market is essential when deciding whether or not to fix up your inherited house before selling.

There are essentially three market types you need to know about:

Seller’s market:
In this scenario, you’ve got a low inventory of houses for sale and lots of buyers, so even as-is properties sell like hotcakes.

If you’re listing your probate property in a seller’s market, you’re probably safe in selling as-is because buyers are snapping up properties as fast as they come available. And that desperation to just get into a house will make them willing to put up with the extra red tape and hoop jumping that probate home sales require.

Buyer’s market:
In this market type, there are loads of homes for sale, but few buyers are interested, so even totally remodeled homes may sit around a while before selling.

If you’re listing in a buyer’s market, selling the probate home as-is will extend the probate process. Not only do you need to contend with all the competition from homes in better condition, but you also have the added detraction of probate complicating the sale.

No buyer will waste time making an offer on an as-is, probate sale property in a buyer’s market unless you’re selling at a steep discount.

Balanced market:
This is an in-between market condition, with an equal number of available homes and buyers buying. Houses are selling steadily, though not too quickly.

Investing estate assets in fixing up an as-is probate property is a toss-up when you’ll be listing in a balanced market. Sure, a rehabbed home will sell faster and for more money, but you risk investing more than you make from the sale.

On the other hand, the longer it takes to sell the home, the more you’ll be spending on things like utilities, property taxes, and vacant home insurance.

Not only do you need expert help identifying current market conditions, but you also need an expert agent to assist you in running the numbers to determine which repairs, if any, are the most cost-effective to make.

3. Your agent lacks probate experience

Any worthy agent can create a comparative market analysis (CMA) to determine the home’s value and help you decide whether investing in the probate property before selling is worthwhile.

Unfortunately, if you hire just any agent, you may sabotage your timeline if they lack significant probate experience.

“It’s really important to work with a professional when dealing with a probate situation,” says Lewis.

“An agent who specializes in the probate process will be able to navigate you through any potential rough waters, and can fill you in on the pros and cons of each decision you’ll need to make. You’ll save a lot with guidance from an agent, not just in dollars, but also in time, effort, and energy.”

While a probate home sale is quite similar to a traditional home sale in many ways, there are probate-specific details that your agent needs to manage. This includes things like using the proper probate contracts, listing the home as a probate property, and making the correct probate disclosures.

If these details aren’t in order at your final probate hearing, the probate court judge won’t be able to finalize the proceedings. You’ll need to redo the paperwork and schedule a new hearing, causing the lengthy probate process to drag on even longer.

For most standard probate cases, an agent who has verifiable probate experience is all you need. However, if you’ve got a complex estate, say one that’s high value or has properties in multiple estates, you may need to recruit a specialist.

Known as Certified Probate Real Estate Specialists (CPRES), agents who earned this designation have received specialized training from the U.S. Probate Services. These agents are educated to deal with the complexities of both probate home sales and court confirmation procedures.

However, it’s not necessary for your agent to have the CPRES certification if they have state-specific probate training.

Some states, such as Arizona, offer their own probate training materials that focus on state-specific regulations. There are also conferences that address probate laws and procedures.

So, ask potential agents to tell you about all the probate training and education they’ve had. The more your agent knows about the process, the faster your probate home sale will go.

The probate timeline in a nutshell

The best way to avoid lengthy probate proceedings is to skip the need for probate altogether. Avoiding probate varies by state and typically must be done before the decedent passes away with proper estate planning.

While there are too many variables to offer a cut-and-dried probate timeline, you can definitely take certain steps to speed up the process.

Educate yourself on local probate laws, keep all beneficiaries on the same page, and, most importantly, enlist qualified experts to guide you through the probate proceedings as efficiently and quickly as possible.

Header Image Source: (David Sherry/ Death to the Stock Photo)