At the onset of the probate case, everyone wants to know how long does probate take, and rightly so. In our experience, an average probate case in New York takes about a year to complete.
You can look at the probate process as having three stages – (1) appointment of the executor, (2) settlement of the property and (3) closing. The approximate time for each stage:
- about 3 months to be appointed as the executor (longer now due to court delays, could be more than a year)
- about 6 months to settle the estate
- about 3 months to close the estate
Total: about 12 months (longer now due to court delays, could take years)
First stage: getting appointed as executor, 3 months to two years
Once a decedent who has a will dies, the executor nominated in the will has the duty to petition to have the will probated.
If the estate does not exceed $50,000, the will does not need to be probated and may be administered under small estate/voluntary administration proceedings. You need to consult a lawyer to determine whether the estate exceeds $50,000. Certain properties are not considered part of the probate estate of the decedent, such as 401k and IRA accounts with designated beneficiaries, joint bank accounts with rights of survivorship, and property held under tenancy by the entirety, to name a few.
It is recommended for the nominated executor to hire an estates lawyer to file the petition for probate. Doing it on your own may delay the proceedings unnecessarily.
To file the petition for probate, you need to submit a certified copy of the death certificate and the probate petition with its supporting documents. To make the proceedings faster, the distributees (the heirs who would have inherited had there been no will) need to sign waiver and consent forms and have it notarized. If the distributees refuse to sign this form, this will delay the proceedings because the court will have to issue a citation to the distributee (who refuses to sign the waiver and consent form) to appear before the court and show cause why the will should not be admitted for probate and letters testamentary not issued to the nominated executor.
SCPA 1404 examinations
If the distributee not only refuses to sign the consent and waiver form but also questions the validity of the will and requests for SCPA 1404 examinations to examine the attorney-drafter of the will and the witnesses, and request for the decedent’s medical and financial records, this will further delay the proceedings for an additional 3 to 4 months. If, after the SCPA 1404 examinations, the distributee decides to file its objections to the will, it becomes a will contest and the delay can take even longer.
Petition for preliminary letters
When distributees refuse to sign waiver and consent forms, file requests for SCPA 1404 examinations, or file objections to the will in a will contest and you already need to administer the properties of the decedent while these proceedings are ongoing, you can ask your lawyer to file a petition for the issuance of preliminary letters testamentary.
When the court finds that your petition for probate is sufficient in form and substance, the court admits the will as genuine and issues letters testamentary to the nominated executor (the petitioner).
In a nutshell, to get appointed as the executor, you must go through the following:
- find a New York estate lawyer and set up the appointment
- get the death certificate
- gather information for the estate lawyer
- wait for the estate lawyer to prepare the documents
- sign the documents
- your lawyer will send notices to parties entitled to notice
- your lawyer will send waivers for people to sign
- wait for your lawyer to review the packet and file it with the court
- wait for the court to process the documents and set a hearing date
- have your lawyer show up at the hearing date
- wait for the court to process the file and to appoint you as the executor
Routine delays in getting appointed
Many of the typical delays in getting appointed as the executor can be avoided with the help of an experienced New York estate lawyer. They include:
- Difficulty getting a death certificate – this is especially true if the death occurred outside of the U.S. or different state, but can also happen due to delays from the funeral home or the Department of Health and Mental Hygiene.
- Missing information – you wouldn’t necessarily have all the required information. For example, you may be missing an address of a person who needs to be notified, and you’d have to search for that address.
- Delay in the estate lawyer preparing 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 doesn’t know what to do and draft the case on for months for no reason.
- Delay in you signing the documents – you have other things to do too. You may be surprised to learn that a significant amount of delay comes from the executors themselves. Executors are known to not send documents for weeks, send in the documents unsigned or not notarized, or misplace the documents.
- Delay in sending notices
- Delay for the people being notified returning the documents signed – people who are notified about the estate may be dragging their feet or may be unsure of whether or not they should sign.
- Delay in the lawyer reviewing the packet
- Delay in the court processing the documents and setting a hearing date – New York City courts are understaffed. They are still working with a paper-based system, which makes it easy to misplace files or to have files slip between the cracks (sometimes literally).
- Lag in the hearing date – it could be that the judge’s next available hearing date is a month or more away.
- More than one hearing date may be required – hearing can be rescheduled by a month or more if the court has additional requirements – some hearings finish up the entire process, but some hearings reveal that information is missing, sending the case back to the clerk and scheduling another court date in a month or more.
How long does probate take when one of those routine delays is experienced? Approximately the same amount of time as described.
Major Delays in Getting Appointed
- A will contest can take years. A will contest places the probate proceeding on a litigation track, which is beyond the scope of this article. However, we do offer a wealth of litigation materials on this website. A will contest will involve an examination 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 with unknown address – it can take 6 months to complete all the required research and publication required to notify parties whose address is unknown.
- A search for unknown parties – can take a year or more to resolve. New York courts are very particular about notifying every party who is in any possible way affected by the will, even if they are not even mentioned in the will. Courts often require the executor to show that an effort was made to search for parties even if they are not likely to be found, such as when they are the decedent’s far removed relatives from overseas who may not have even existed.
- How long does probate take when major delays are present? It could be a very long time indeed. In some rare instances, the probate might not even happen, with the will being rejected and the public administrator getting appointed instead of the executor nominated by the will.
Second stage: settling the estate, 6 months
Once the court appoints an executor through the issuance of letters testamentary, the executor can now begin to perform his duties: marshal/collect the assets of the decedent, pay the administration expenses, taxes, funeral bills, debts, and other claims against the estate.
The executor makes a list of assets and notifies the known creditors of the decedent’s death. The creditors have 7 months from the time an executor is appointed to file a claim with the estate. After the lapse of these 7 months, the executor can distribute to the beneficiaries without being personally liable for creditors’ claims filed beyond the 7-month period.
The executor makes an inventory of the decedent’s assets. Personal and real property need to be appraised to determine the value of the decedent’s estate. These assets also need to be transferred to the estate. Cash in the decedent’s bank accounts are transferred to the estate account, while personal and real property are transferred to the name of the executor as executor of the estate. These transfers can take time and may delay the proceedings.
Order of liability in selling estate property
The executor also identifies and determines the validity of the claims of the creditors and pays for all valid creditors’ claims. The executor has the authority to sell property if the cash in decedent’s accounts are insufficient to pay for the debts and claims against the estate. Selling property may take time.
EPTL § 12-1.2 provides for the order of liability that the executor needs to observe when selling estate property: distributees, residuary beneficiaries, general beneficiaries, specific beneficiaries, and surviving spouse, in that order.
For example, if decedent left a car without designating a particular beneficiary for a car, a general legacy of $10,000 to A to be taken from his $20,000 bank account, and a house to B, the executor must first preserve the general legacy to A of $10,000 and specific devise of the house to B. The $10,000 remaining balance in the bank account and the car are to be considered given to the residual beneficiaries. Under the order of liability, the executor may sell the car and use its proceeds to pay for debts. The executor may also use the $10,000 remaining balance in the bank account to pay for the debts. Only when these two properties are insufficient can the executor first use the general legacy of $10,000 to A, and if still insufficient, the house, to pay for the decedent’s debts.
Discovery and turnover proceedings
When making an inventory of the estate, the executor may sometimes discover that some property of the decedent has been taken by third persons either before or after the decedent’s death. In this case, the executor may decide to file discovery and turnover proceedings under SCPA 2103 against these third parties to direct them to return the decedent’s property to the estate. Sometimes, a temporary restraining order may be filed restraining these third parties from further transferring the decedent’s property to other persons. This can significantly delay the proceedings.
Sometimes, once an executor is appointed by the court, the executor disappears and does not perform any of his obligations. Worse, the executor commits misconduct by neglecting and wasting estate assets. The beneficiaries’ remedy in this case is to file a petition to have the executor removed and submit an accounting, and request for a replacement of the executor. In this case, the proceedings are delayed until a new executor is appointed.
Filing of tax returns
Once the value of the estate is determined, the accountant will prepare Form 706, Federal Estate Tax Return, if applicable, and Forms 1040 and 1041 for the federal income tax returns. The final accounting can now proceed so the executor can wind up estate affairs.
To summarize, this stage allows the executor to perform the following:
- Find assets – most decedents do not leave a list of their assets enclosed with the will. The executor would have to locate assets by going through the decedent’s residence, and that may or may not yield all of the assets involved. Sometimes it takes months before an asset is discovered, such as when the decedent gets a statement in the mail. There is no centralized system for finding decedents’ assets, and with paperless billing being an option and with no access to the decedent’s email, it is getting more difficult and time-consuming to find assets of the estate.
- Transfer assets to the estate – once you locate the assets, it can take about one month to transfer the assets to the estate’s name, to be later distributed to the heirs.
- Sell assets that need to be sold – if real estate is involved, it can take months to sell. A company or business can take even longer.
- Pay debts – creditors have 7 months from the date of the appointment of the executor to file claims. The executor has a duty to pay out valid claims, as long as the claims have been filed within the 7 months. Failure to satisfy valid claims filed within the 7 months can subject the executor to being personally liable to the creditors, the last thing an executor would want.
Routine Delays in Settling the Estate
- Finding new assets after the estate is almost settled
- Delays in transferring assets to the estate – wait for the lawyer to process the paperwork for the asset transfer and the city clerks to register it. Sometimes the city clerks return it for corrections.
- Valuating and selling a company or a business – selling a business is a long process. There may not even be a buyer interested in that particular business at that time, so the business may have to be on the market for a long time until an interested buyer becomes available.
Major Delays in Settling the Estate
- Tenants are refusing to move out – If a property has tenants who are not willing to move out, it will be difficult to sell a property for a fair price. Evictions take a long time in New York, at least six months. Some take years.
- Property needs repair before being sold – if a property needs to be repaired to get a fair price, the estate will not be able to close until the property is repaired and sold.
- Company or business has non-estate co-owners – everyone wants a bargain, so non-estate co-owners of a company will try to take over full ownership without adequately compensating the estate. Litigation may be the only way to get a fair share of the company.
Third stage: closing the estate, about another 3 months
As previously mentioned, the creditors have 7 months from the time the executor is appointed to file their claims against the estate. After the lapse of this 7-month period, in the absence of any other litigation proceedings, the executor can begin to close the estate and distribute the inheritance of the beneficiaries.
In this stage, the executor may prepare an informal or formal accounting. Usually, when all the beneficiaries agree on the accounting, the executor may just prepare an informal accounting, have the beneficiaries sign standard release forms, and distribute the inheritance shares to the beneficiaries. When a beneficiary disagrees with the accounting, the executor has to file a formal accounting in order to be discharged from liability. Once again, objections to the accounting can take time and significantly delay the proceedings.
To summarize, the duties of the executor in this stage are:
- prepare the final accounting – an informal accounting provides a summary of the estate’s assets and liabilities to the heirs
- have all the heirs sign off on it
- distribute funds to the heirs
Routine Delays in Closing the Estate
- Heirs can take a while returning the paperwork signed
- It can take your lawyer and accountant some time to complete the accounting, especially for a more diversified estate
Major Delays in Closing the Estate
- Formal accounting – if the heirs are not satisfied with the informal accounting provided and request a formal accounting, that can cause significant delays. A formal accounting needs to list every asset and expense of the estate line by line, even very small line-items. Once that’s complete, and it can take a few months to complete, it will then need to be reviewed by the court, which can take another few months, after which a hearing is scheduled.
- Contested accounting – if the heirs decide to take the process further and contest the formal accounting filed with the court, the accounting contest can take more than a year.
Depending on which NYC estate attorney you ask, the answer to “how long does probate take” may be different. Like calling a car service, everyone will try to give you the shortest time they can think of, to get you to retain you. The truth is, it used to take about a year to probate an estate in New York City, and even longer if your attorney is not organized and not experienced. Now it can take more than two years.
The Law Offices of Albert Goodwin have the experience and the organization to finish up your probate in the shortest time possible. Should you need assistance, we have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at firstname.lastname@example.org.