Both the executor (or administrator) of an estate and its beneficiaries generally want to finish probate as quickly as possible. However, there are certain situations that delay the process. It could take over a year to sort through everything, depending on what’s going on and how complex the estate is.
Conflict between beneficiaries
If a beneficiary raises a legal concern or is generally uncooperative, then probate could take longer. In some cases, the executor may have no choice but to go to the court for permission to take steps that could otherwise be taken independently. A beneficiary hiring an attorney may slow down the process, or it may speed up the process. If the beneficiary’s attorney takes a deeply adversarial position, the process will likely slow down. However, in some cases a distrustful beneficiary may hire an attorney who, acting ethically, will advise the beneficiary that the probate process is progressing properly. An experienced probate attorney with the right approach may be able to intervene before the beneficiary seeks an attorney, by assuring the beneficiary of the transparency of the process and respecting the suspicious beneficiary’s position. This is a skill that can only be gleaned from life experience, as there is no law school class called “managing long standing family issues among beneficiaries.”
Problems with assets
In some cases the deceased may not have managed their assets properly during their lifetime. This type of mismanagement (whether through negligence or simple lack of awareness) may slow down the process. For example, if the deceased co-owned a house with their spouse and the spouse died many years prior, the executor may have to open two probates: one to transfer title of the house from the predeceased spouse to the deceased, and a second one for the second spouse to die. The need for a second probate will depend largely on how the real property was titled. Many people mistakenly belief that just because their spouse co-owned a house, the house automatically goes to the surviving spouse without the need to take additional steps.
Assets in more than one state
You may have to go through more than one probate process if the decedent left behind property located in more than one state. Even if that property isn’t traditional real property, such as mineral rights or a timeshare, you may have to complete probate in more than one state. Managing the multiple proceedings takes time. The secondary probate is known as an “ancillary probate.” Generally you have to be appointed as executor in the state where the decedent resided at death before you can start the ancillary probate process in the other state.
Taxes, taxes, taxes
Many people correctly understand that there are no estate taxes for their probate, because the federal estate tax exemption amount is very high.* However, estate taxes are only one type of tax that an executor must navigate. The executor is also responsible for making sure the decedent’s personal income taxes are paid up. This could include unpaid taxes from many years before the decedent died.
If the deceased owned real property, there will in most cases be a reassessment of the property taxes, back to the date of death — even if the executor sells the house quickly. Sometimes when a probate takes a little longer, the executor may sell assets for a gain (as in a situation where the value of a house went up significantly between the decedent’s date of death and the date of selling the house). If that happens, the estate itself may need to pay capital gains taxes on the sale of the assets. It is wise to have an experienced probate lawyer on your side to navigate these tax issues, because an executor may be held personally liable for unpaid taxes.
Probate can take a long time for many different reasons. The only aspect that is truly in your control is acting promptly on the advice of an experienced probate lawyer.
*In cases where the deceased was not a “United States Person” at their death (the IRS considers a decedent a “United States Person” if they were a U.S. citizen or if they were a permanent U.S. resident with a green card, but not if the decedent was a non-U.S. citizen who resided abroad — even if the decedent had a green card), the estate tax exemption amount may only be $60,000. For these estates, an estate tax return will be due and payable for any value of the estate beyond $60,000. Many people are not aware of this distinction for estates where the decedent was not a United States Person. And the executor could be held personally liable for failing to file an estate tax return.