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:
Total: about 12 months (longer now due to court delays, could take 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.
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.
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:
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:
How long does probate take when one of those routine delays is experienced? Approximately the same amount of time as described.
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.
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.
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.
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:
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:
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 City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].