3 minute read

How Long Do You Have to File for Probate?

After the death of a loved one, how long do you have to file probate? Get the information you need around filing probate after death here.

Mitch Mitchell

Mitch Mitchell, @MitchMitchell

Product Counsel, Legal, Trust & Will

The death of a loved one is a devastating experience. In addition to processing your grief, there are also unfortunately some administrative duties that must be dealt with right away. Determining how the deceased person’s property should be distributed is one of them. 

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A deceased person’s estate must pass through a judicial process called probate. The probate court provides oversight while the appointed Executor or Administrator inventories the decedent’s estate, pays debts, files taxes, and distributes the remainder amongst beneficiaries. However, probate won’t open until a family member files a probate petition. This guide will explore how long you have to file for probate after the death of a loved one.

How Long Do You Have to File Probate After Death?

If you happen to know someone whose family has gone through the probate process, then you may have noticed that it took some time. Although the length of probate varies from state to state, it typically takes several months to a year. In some states, it can take even longer. 

Because the probate process can take such a long time, it’s imperative that someone files the Petition for Probate as soon as possible. As mentioned earlier, the Probate Court cannot open probate on the estate until the Petition and Will have been filed. This is typically done by an eligible family member or the person who was nominated Executor of the Will. 

The California Probate Code puts forth some timelines and deadlines. If an Executor was nominated in the Will, then they must file for Probate within 30 days of the person’s death. Otherwise, they may be waiving their right to the Executor appointment. If the family chooses to file a small estate affidavit instead, then they must wait until 40 days have passed after the date of death.

Keep in mind that the probate process cannot be initiated without a Petition on file. Although each state may set forth some deadlines, it’s usually in the family’s best interest to take action as soon as it is allowed.

How Long Do You Have to File a Will After Death?

How long do you have to file a Will after death? This question is often asked due to confusion surrounding the probate process. If a Will is available, then the nominated Executor must present it to the court when the person passes away. At the same time, they will fill out the Probate Petition to ask that the probate be opened. 

In other words, the timeline for filing a Will is the same as the timeline for filing the Petition for Probate.

Note that, in California, there are three Petition options. The first is the Petition for Probate of Will and Letters Testamentary. This petition is used when the nominated Executor is asking to open probate and to be formally appointed as the Executor. When the Court grants the Letters Testamentary, they then have the legal right to proceed with acting on behalf of the estate.

The second option is the Petition for Probate of Wills and Letters Testamentary with Will Annexed. This version is used if a Will exists, but does not nominate an Executor. In this case, the Court will appoint an Executor based on Probate Code. It is typically the next-of-kin, such as a spouse or eldest adult child.

Last but not least, a family may file a Petition for Letters of Administration. This is used when there is no Will, and the estate is in a state called “intestacy.” The Court appoints an Administrator of the estate and references Probate Code to decide who in the family is in line to inherit property from the estate.

Earlier, we mentioned that a representative may file a small estate affidavit (in California) 40 days after the date of death. Rightful heirs of an estate are allowed to file this Petition (“Petition to Determine Succession to Real Property”) if the estate is not worth more than $184,500. This Petition allows families to bypass and shortcut the formal Probate process. 

How Long Does It Take to File for Probate?

Once the Petition for Probate has been filed, then the probate process is deemed open. Until closing, it could take several months to over a year. (It can take up to two years in California.) There are several stages of probate that determine how long the process can take. We provide an overview of the 7 stages here: Probate Process: How Long Does Probate Take in California

The length of probate is a sum of how long it takes to complete each of these stages. Several factors include the size and complexity of the estate, the speed and efficiency of the Executor or Administrator, and the number of cases in process. A clear and concise Estate Plan can aid the Executor in closing the estate with relative ease. However, it can take them longer if the Will and/or Trust is unclear, contains errors, or even conflicting information. Further, the waters can get muddied when there is family strife over the Will and someone files to contest it, etc. 

When planning for the probate process, it’s best to keep an open mind and know that it can take a long time. There are even factors that are completely out of the control of involved parties. 

Avoid Probate By Creating Your Will Today

So, how long do you have to file probate after death? If a Will nominates an Executor, then the Executor has 30 days from the date of the Testator’s death. They must present the Will to the Court and ask to file a Petition to open probate. If they do not meet this requirement within 30 days, then they may have inadvertently waived the right to serve as the appointed representative. They cannot officially begin executing their estate-related responsibilities until they receive the Letters Testamentary from the court. 

Once the process begins, the probate process can take anywhere from several months to a year. In some states, such as in California, it can take up to two years. The length of probate depends on several factors, such as how long it takes for each stage of probate to be completed. If you are someone who is preparing their Estate Plan, it’s important to consider how to make it such that the probate process can be streamlined. 

Creating a Will and nominating an Executor is a great place to start. Second, consider moving property and assets into a Trust such that they can bypass the probate process entirely. Then, make sure that your Will and/or Trust are free of errors and conflicting information. Create your Estate Plan such that your Executor will have an easy time accessing critical documents and records such that they can get through the stages of probate with relative ease. Last but not least, make sure to have conversations with your loved ones regarding your plans for your estate so that there are no ugly surprises and less chances of anyone contesting your Will.

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