It is really important to understand up front the probate process and its timeline considerations.
The time it takes to see a probate case through to completion can depend on multiple factors. For this article, we’ll start with the basics; three potential timelines; a best case scenario; a worst case scenario; and one that that falls somewhere in the middle.
Most people, when they retain a lawyer and open a probate case tend to be surprised at the amount of time it takes for the matter to be resolved. It would be wise to expect a lengthy, drawn out process so as not to be surprised, and if the matter does go smoothly in a shorter time than expected, then so much the better.
The shortest timeline would involve use of a small estate affidavit, which most states in the U.S. allow under varying circumstances.
Small estate affidavits were designed to streamline the probate process particularly in cases where the estate worth is calculated based on a minimum threshold. This threshold varies from state to state, so make sure you are aware of your state’s minimum requirements.
Small Estate Affidavit: The small estate affidavit process can take as little as a few days or just a few weeks.
To be technically correct, using a small estate affidavit actually skips the probate process and avoids longer mandated periods for the probate to be resolved. If the estate qualifies as a small estate, the inheritor can prepare a short document (the small estate affidavit) stating that he or she is entitled to a certain item of property under the will or state law.
For instance, let’s say a deceased person owes money to a bank for an auto loan, or something similar. Normally the automobile in question would be repossessed by the bank and sold at auction to offset the debt. But if an inheritor wished to claim the automobile as their own (and assume payments on the loan) then a small estates affidavit would be used to intervene in the repossession process.
If a deceased person left an amount of debt in a bank account, the bank can file for the possession of property items, in order to auction them off to pay the debt. But let us say that among those items is an antique piano that has belonged to the family for multiple generations. If the inheritor wishes to retain ownership of the piano in an estate that – as a whole – is under the threshold required for being declared a small estate, then a small estate affidavit can be used for the dispossession of the piano.
Worst Case: The longest timeline is probably something you’ve already imagined, or perhaps read about in cases where high profile people such as celebrities have died and their children are fighting over the estate. This is the reality of probate cases where the size of the estate is considerable, there was no will, or the will was vaguely worded, and in some cases, changed at the last minute. These cases can go on for years.
You may remember the supermodel Anna Nicole Smith, who married J Howard Marshall; a billionaire 62 years older than Smith. When he died, his will stated that all of his money should go to his son E Pierce Marshall. But Smith and Marshall’s older son J Howard Marshall III filed a joint probate case to contest the will, and claim half of deceased billionaire’s money for themselves.
On June 23rd, 2011, the U.S. Ninth Circuit Court of Appeals found in favor of E. Pierce Marshall and vacated the claims of Smith and Marshall III. Unfortunately E. Pierce Marshall died in 2006. Anna Nicole Smith died in 2007.
So what’s the average probate case cost in terms of time?
From six months to a year is the average. But a probate will take as long as it takes for "people" to be thoughtful and generous to each other. And for as long as they struggle with doing this, time will march on and probate lawyers will get rich.
We’ll discuss some of the other factors influencing probate in subsequent articles.
Please note: this article is for informational purposes only and is in no way meant as legal advice.