5 minute read

When Should You Start Probate: A Guide for Executors

When should you start probate? Is there a deadline? How long can you wait? Trust & Will answers all of your questions.

Mitch Mitchell

Mitch Mitchell, @MitchMitchell

Product Counsel, Legal, Trust & Will

If you’ve been looking for guidelines on when exactly you should start probate, you’ve come to the right place. If you recently lost a loved one, we offer you our deepest condolences. Navigating a tricky legal system in the midst of the grieving process can be overwhelming and frustrating to say the least. 

We have a series of guides that help break down the probate process and answer common questions as much as possible. This is a great place to start. When should you start probate? This guide will address how soon you should file for probate, if there’s a deadline, and how long you can wait.

What is probate & why is it important?

Probate is an important legal process that settles a deceased person’s estate by paying any outstanding debts and distributing property to heirs.  While not all assets have to pass through probate, it is necessary to determine whether or not the process is required. Failing to conduct probate (if required) can have serious legal and financial consequences. 

Further, it’s important to settle an estate as quickly as possible. Otherwise, both creditors and heirs of the estate are forced to wait longer than necessary to receive what is rightfully theirs. This is why timing is of the essence. 

Here, it is important to highlight that probate rules are governed by the state. While several states have adopted the Uniform Probate Code set forth by the Uniform Law Commission, probate laws vary from state to state. The information set forth in this guide is provided as a generalization and we recommend finding out the exact rules in the state in which you reside as they can vary.

Who should file for probate?

If the decedent left behind a Will, then it generally makes sense for the named Executor to file for probate. (This means you are filing a petition to have the Will probated.) This is the person who the decedent entrusted to oversee estate administration after they pass away. Once the Will has been validated by the probate court, the judge will issue Letters Testamentary that formally appoints the named Executor so that they can legally carry out their administrative duties.

However, it doesn’t always have to be the Executor that files for probate. For instance, there can be cases when the decedent didn’t leave behind a Will, or failed to name an Executor. While the rules may vary from state to state, here are some examples of who can initiate probate:

  • Close relatives of the decedent

  • Beneficiaries who were named in the Will

  • Creditors

The most important outcome is that someone initiates the probate process in a timely manner. The probate judge will see to it that the most appropriate individual is given the duty of administering the estate after the fact.

When should you start probate? FAQ

So far, we’ve highlighted that it’s important to initiate the probate process in a timely manner. The key reason is so that creditors and heirs don’t have to wait longer than necessary to receive their payments or distributions. There are other nuanced reasons, such as the estate losing its value due to market risks or property value fluctuations and so on or so forth. Probate courts are also overburdened in most states, meaning that queues and wait times can be prolonged. 

Next we will answer some common questions about when exactly you need to start probate and how long you can afford to wait.

When should I start probate?

Each state sets forth its own guidelines for when the probate process should be initiated. 

Some states put forth a required waiting period, such as 2 to 4 weeks after the date of the decedent’s death, before you can file for probate. Other states allow you to initiate probate as soon as the death certificate is obtained.

This means that there is unfortunately no universal answer, so our best recommendation is to visit your local probate court and inquire. Further, your timeline could look different from others’ based on the circumstances of the estate. 

In general, however, it’s recommended that you should start probate as soon as you’re allowed.

Is there a deadline to start probate?

Another key piece of information that can help you decide how soon to start probate is any key deadlines you must meet.

Again, these deadlines will vary by state, so be sure to inquire with your local probate administration. (Oftentimes important deadlines will be published on your county probate court website.) 

To give you a general idea, let’s take a look at the deadlines set forth by the California Probate Code. If you determine that the estate must be probated, then the person who has the Will at the time of the decedent’s death (the Custodian) must file the original Will at their probate court clerk’s office within 30 days. They must also send a copy of the Will to the named Executor. If for some reason you can’t find the Executor, you can send it to a person who was named as a Beneficiary in the Will. 

There also may be some rules dictating when probate must reach the finish line, which helps inform when it should begin. For instance, if the estate has to file federal tax returns, then the California code requires that the final distribution orders are filed within one year or 18 months. 

The State of California also offers the alternative options of a Small Estate Affidavit, which is essentially an expedited probate (or “probate lite,” if you will) for estates that are valued under a certain threshold and aren’t required to go through the full-blown process. Those who choose this alternative method actually have a required waiting period of 40 days from the date of death.

Our guide here discusses these timelines in further detail.

What happens if I wait a while to start?

Bottom line up front: we do not recommend delaying the start of the probate process more than necessary. Missing your deadlines or failing to file for probate altogether can have some serious legal and financial consequences.

Here are some examples:

  • A nominated Executor who fails to file for probate on time could inadvertently waive their right to the Executor appointment.

  • Families wrongly assume that they don’t need probate only to find out later that an asset needs to be transferred years later, leading to additional administrative burdens.

  • A property with a lien could get foreclosed upon for nonpayment.

  • The estate could be frozen, meaning that assets and property cannot be transferred to beneficiaries.

  • Beneficiaries could sue the Executor for financial reparations.

  • The estate could be subject to late fees and penalties.

  • The court may appoint a Conservator to take over estate administration.

  • The estate could fail to close existing debts.

  • The named Executor could face criminal charges if they’re found guilty of intentionally avoiding probate or mismanaging the estate on purpose for their personal benefit.

Situations where you can avoid probate 

This guide answered the question of, “when should you start probate,” assuming that probate is required for the estate in question.

However, know that there are situations where probate can be avoided, but preparations need to be made in advance and not after the fact. When an individual passes away, their assets and property are organized into two buckets: probate assets and non-probate assets. In theory, there are ways that this person could empty out their probate assets “bucket” before they die so that the estate doesn’t have to get probated at all. The key is to ensure that all assets are non-probate assets. 

Here are a few examples of how this can be achieved:

  • Real estate is arranged so that it is owned jointly with another owner. The deed states that the property has “joint tenancy with right of survivorship.”

  • If you live in a community property state, then some or all of your property will transfer automatically to your surviving spouse outside of probate.

  • When available, utilize beneficiary designations on bank accounts, investment accounts, retirement, and life insurance policies that are payable or transferable on death.

If probate cannot be avoided, know that it should not be delayed. In your state, it could be possible that you’ll get turned away for filing for probate too soon if there is a mandatory waiting period. More likely than not, however, you can initiate the process as soon as you locate the Will and obtain the death certificate. That way, you can get estate settlement in the pipeline and distribute assets to the estate’s heirs without unnecessary delay in your control. Further waiting too long could damage the estate, as well as put you at risk for legal consequences. Your immediate care and attention is recommended. 

No matter where you are in your estate planning journey, Trust & Will is here to help! For instance, maybe you read this guide and were inspired to set up your own Estate Plan in such a way that you can avoid the probate process altogether. Then, our Trust-based Estate Plan is a great fit. 

Or, maybe your loved one just passed away and now you are trying to figure out how to navigate the complex Probate system. At Trust & Will, we understand that navigating the probate process can be overwhelming– but we're here to help.  Our plans provide clear, county-specific guidance and support from probate experts so you can stay on top of the process. Learn more about our probate offerings.

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Trust & Will is an online service providing legal forms and information. We are not a law firm and we do not provide legal advice.