The length of probate depends on the facts of each estate. Often times, the length of probate will also vary state-to-state. For example, the personal representative or executor may need to sell real estate before settling the probate estate or resolve a disputed claim filed by a creditor or a lawsuit filed to challenge the validity of a will. Any of the circumstances mentioned above will tend to lengthen the process of estate administration. Even the simplest of probate estates must be open for a creditor claim period, which varies state-to-state but can be as little as three months. It is reasonable to expect that a simple probate estate will take about five or six months to properly handle.
What Happens if the Estate is Required to File a Federal Estate Tax Return?
If the estate is required to file a federal estate tax return, the return is initially due nine months after the date of the decedent’s death, however, the time for filing the return can be extended for another six months. If a federal estate tax return is required, the final accounting and other documents to close the probate administration are due within 12 months from the date the estate tax return, as extended, is due. This date can also be extended if necessary.
What Happens If the Estate Does Not Have to File a Federal Estate Tax Return?
When an estate does not have to file a federal estate tax return, the final accounting and other documents necessary to close the probate estate are first due within 12 months after the court issues Letters of Administration to the personal representative or executor. This period may be extended if necessary.
How Are The Personal Representative’s or Executor’s Compensation and Professional Fees Determined?
The personal representative or executor, the attorney, and other professionals whose services may be required in administering the probate estate (such as appraisers and accountants) are entitled by law to reasonable compensation.
The personal representative’s compensation is usually determined in one of five ways:
- As set forth in the will;
- As set forth in a contract between the personal representative or executor and the decedent;
- As agreed among the personal representative and those who will bear the impact of the personal representative’s compensation;
- The amount presumed to be reasonable as calculated by state law, if the amount is not objected to by any of the beneficiaries; or
- As determined by the judge.
The fee for an attorney for the personal representative or executor is usually determined in one of three ways:
- As agreed among the attorney, the personal representative/executor, and those who bear the impact of the fee;
- The amount presumed to be reasonable as calculated under state law, if the amount is not objected to by any of the beneficiaries; or
- As determined by the judge.
What Alternatives To Formal Administration Are Available?
Many states provide consumers with several alternate abbreviated probate procedures other than the formal administration process.
Summary Administration: Generally available only if the value of the estate subject to probate in certain states (less property, which is exempt from the claims of creditors; for example, homestead real property in many circumstances) is not more than $75,000, and if the decedent’s debts are paid, or the creditors do not object. Those who receive the estate assets in a summary administration generally remain liable for claims against the decedent for two years after the date of death. Summary administration is also available if the decedent has been dead for more than two years and there has been no prior administration.
Disposition Without Administration: This probate vehicle is only available if probate assets consist solely of property classified as exempt from the claims of the decedent’s creditors by applicable law and non-exempt personal property, the value of which does not exceed the total of (1) the amount of preferred funeral expenses; and (2) the amount of all reasonable and necessary medical and hospital expenses incurred in the last sixty (60) days of the decedent’s final illness, if any.