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How Long Does Probate Court Take – What Delays Can I Expect
At the start of a probate case everyone wants to know how long does probate court take, and rightly so. In our experience an average probate case in New York City takes about a year to complete if there are no major complications.
It helps to look at probate as three stages: getting the executor appointed, settling the estate, and closing it. Appointment takes about three months, settling the estate about six months and closing about three months, for a total of roughly twelve months.
Each stage has its typical tasks and its routine delays, and each stage can also run into a major delay. Major delays are less common, but when they happen they have a major effect on how long the case takes. Below we go through each stage, what has to be done in it, and what usually slows it down, so that an executor waiting to be appointed and a beneficiary waiting for a distribution can each see where the time goes.
Getting appointed as executor: about three months
Getting appointed takes about three months because there are quite a few tasks to get through, and each of them can take anywhere from a week to a month. An experienced estate attorney can do some of them at the same time or out of order, which makes the probate go faster. In the usual order, the steps are:
- find an estate lawyer and set up the appointment;
- get the death certificate;
- gather the information the lawyer needs, and wait for the lawyer to prepare the documents;
- sign the documents;
- the lawyer sends notices to the parties entitled to notice, and sends waivers for people to sign;
- the lawyer reviews the completed packet and files it with the court;
- the court processes the papers and sets a hearing date, and the lawyer appears at the hearing;
- the court processes the file and appoints you as executor.
Routine delays in getting appointed
Many of the common delays at this stage can be avoided, or at least shortened, with the help of an experienced estate lawyer. A routine delay adds days or weeks rather than months, and a case that runs into one or two of them still finishes in approximately the time described above.
| Where the delay comes from | What usually happens |
|---|---|
| Getting the death certificate | This is especially slow if the death occurred outside the U.S. or in a different state, but delays also come from the funeral home or the Department of Health and Mental Hygiene. |
| Missing information | You will not necessarily have everything required. For example, you may be missing the address of a person who needs to be notified, and you have to search for that address. |
| The lawyer preparing the documents | Estate lawyers are busy, and it sometimes takes longer than they claim to get things done. An inexperienced lawyer can get hung up on something he does not know how to handle and drag the case on for months for no reason. |
| The executor signing the documents | A surprising amount of delay comes from executors themselves. Executors are known to not send documents back for weeks, to send them in unsigned or not notarized, or to misplace them. |
| Sending notices and getting waivers back | People who receive notice of the estate may drag their feet, or may be unsure whether they should sign. |
| The lawyer reviewing the packet | The completed packet has to be checked before it is filed, and that takes its place in the lawyer’s queue. |
| The court processing the papers and setting a hearing date | New York City courts are understaffed and still work with a paper-based system, which makes it easy for files to be misplaced or to slip between the cracks, sometimes literally. |
| Lag in the hearing date | The judge’s next available hearing date may be a month or more away. |
| More than one hearing | Some hearings finish the entire process, but some reveal that information is missing, sending the case back to the clerk and putting another court date a month or more away. |
Major delays in getting appointed
A will contest can take years. It places the probate proceeding on a litigation track, which is beyond the scope of this article, although we offer extensive litigation materials on this website. A will contest involves examinations under oath of the attorney who drafted the will, the witnesses to the will, the person presenting the will for probate, and anyone else with knowledge of the facts. It may involve obtaining and reviewing the decedent’s medical records to assess his capacity to make a will. A will contest can quickly turn into a long and involved lawsuit.
A search for parties whose address is unknown can take about six months, because all of the required research and publication has to be completed before the court is satisfied that those parties have been notified. A search for parties who are themselves unknown can take a year or more. New York courts are very particular about notifying every person who is in any possible way affected by the will, even people who are not mentioned in it. The court often requires the executor to show that an effort was made to search for such parties even when they are unlikely to be found, such as the decedent’s far-removed relatives overseas who may never have existed.
When a major delay is present, the answer to “how long does probate court take” is that it can be a very long time indeed. In some rare instances the probate does not happen at all: the will is rejected and the public administrator is appointed instead of the executor nominated in the will.
Settling the estate: about six months
Once appointed, the executor has four main jobs: find the assets, transfer them into the estate, sell whatever needs to be sold, and pay the debts.
Finding the assets is harder than it sounds. Most decedents do not leave a list of their assets with the will, so the executor has to go through the decedent’s residence, and that may or may not turn up everything. Sometimes it takes months before an asset is discovered, such as when a statement arrives in the mail. There is no centralized system for finding a decedent’s assets, and with paperless billing and no access to the decedent’s email, finding the assets of an estate is getting more difficult and more time-consuming.
Once an asset is located, it takes about a month to transfer it into the estate’s name so that it can later be distributed to the heirs. If something has to be sold, the sale adds its own time: real estate can take months to sell, and a company or a business can take even longer.
Debts have to be paid before the estate can be distributed. Creditors have seven months from the date of the executor’s appointment to file claims, and the executor has a duty to pay the valid claims filed within that seven-month period. An executor who fails to satisfy a valid claim filed within the seven months can be held personally liable to the creditor, which is the last thing an executor wants.
Routine delays in settling the estate
The ordinary delays at this stage are the ones you would expect. New assets turn up after the estate is almost settled. Transfers wait on the lawyer to process the paperwork and on the city clerks to register it, and the clerks sometimes send it back for corrections. Valuing and selling a company or a business is a long process in itself; there may be no buyer interested in that particular business at that time, and it may have to stay on the market for a long while before one appears.
Major delays in settling the estate
Tenants who refuse to move out are a common source of major delay. It is difficult to sell a property for a fair price while it is occupied by tenants who will not leave, and evictions take a long time in New York, at least six months, and some take years. Along the same lines, if a property needs repairs in order to fetch a fair price, the estate cannot close until the property is repaired and sold.
A company or business with co-owners outside the estate is another. Everyone wants a bargain, and non-estate co-owners will try to take over full ownership without adequately compensating the estate. Litigation may be the only way to get the estate its fair share of the company.
Closing the estate: about three months
Closing involves three things: preparing the final accounting, which in the usual case is an informal accounting giving the heirs a summary of the estate’s assets and liabilities; having all of the heirs sign off on it; and distributing the funds to the heirs. The routine delays here are that heirs can take a while to return the signed paperwork, and that it can take the lawyer and the accountant some time to complete the accounting, especially for a more diversified estate.
Major delays in closing the estate
If the heirs are not satisfied with the informal accounting and demand a formal accounting, that causes significant delay. A formal accounting has to list every asset and every expense of the estate line by line, down to very small items. Preparing it can take a few months, after which it is reviewed by the court, which can take another few months, and only then is a hearing scheduled.
If the heirs take the process further and file objections to the formal accounting, the accounting contest can take more than a year.
What to expect
Depending on which estate attorney you ask, the answer to “how long does probate court take” may be different, because everyone tends to quote the shortest time they can think of. Our honest answer is that it takes about a year to probate an estate in New York City, and longer if the case is not handled in an organized way. The stages above are what that year consists of, and knowing them lets an executor keep the case moving and lets a beneficiary judge whether a wait is normal or something is stuck.
If you would like to talk through the timeline for a particular estate, whether you are the executor or a beneficiary, call us at 212-233-1233 or email [email protected].
About the Author
Albert Goodwin Esq. is a licensed New York attorney with over 18 years of courtroom experience. His extensive knowledge and experience make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
