How Long Do You Have to File Probate After Death?
When a loved one dies, it can be a chaotic time for everyone involved. Probate may not be at the top of your list, but California law requires for the process to be started within a specific timeframe.
Read this article to discover the important deadlines, caveats and shortcuts involved in California’s probate process to ensure its timely and efficient completion.
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If your loved one has died, their estate may need to pass through a court-supervised process known as probate, regardless of whether or not they died with a will.
While probate is probably the last thing on your mind at such an emotional time, it is not something you should ignore, because when probate is delayed, it can hurt everyone involved.
So, how long do you have to probate a will? Are there deadlines for probating a will?
We will get into the details of when to probate a will shortly, but it’s important to first learn how probate works.
How Does Probate Work?
Probate is a court-supervised process for appointing an executor or administrator (otherwise known as the personal representative) and validating a decedent’s will (if they had one), among other things.
If a decedent died with property in their name that has a cumulative value $184,500 or less (as of April 2022), a formal probate will likely be required to ensure their assets pass to the appropriate parties, even if the decedent died without estate planning documents of any kind.
Probate is necessary to enable interested parties who disagree with the nomination of a particular executor or administrator or have doubts about the validity of the will to make their case in front of the court. It’s also necessary to enable creditors of the decedent to try to have their debts satisfied.
Who Initiates the Probate Process?
If a person dies with a will, then the probate process usually will be started by the executor nominated through the will once they lodge the will with the Office of the County Clerk. After lodging the will, the nominated executor will typically file a petition for probate with the court.
As soon as they are provided with a date for the initial probate proceeding, they will not just need to mail notice of the hearing date to all interested parties, but publish notice of estate administration in a local newspaper for several weeks.
If a person dies without a will, then the probate process will typically be started by a family member or close friend, who will file a petition for letters of administration with the court. The petition for letters of administration is almost identical to a petition for probate; however, unlike a petition for probate, the petition for letters of administration does not seek admission of a will to probate. Instead, it asks the court to appoint an administrator for the estate, as opposed to an executor.
When probate is not opened in a timely fashion by the executor, other parties with an interest in the estate can take on the responsibility by filing California Form DE-111. This can include estate beneficiaries, the decedent’s heirs or even the decedent’s creditors.
When Must a Will Be Probated?
Sometimes, decedents’ wills are very straightforward or contain minimal assets, leading their loved ones to question whether probate is actually needed. To put it simply, if a decedent dies with property valued at more than $184,500 in their name, a probate likely will be required.
Only in situations where the decedent’s estate has assets worth less than the probate minimum, or where the decedent’s assets are being disposed of through their trust and/or beneficiary designations (i.e., direct transfers) would it be possible to skip probate. There are also potential shortcut procedures (e.g., small estate affidavits, spousal property petitions) one might be able to use in lieu of a formal probate.
If you’re unsure whether a decedent’s estate qualifies for an expedited probate procedure, consulting with a probate attorney would be a good place to start. If they tell you that using one is possible, it could save the estate substantial money in probate fees and time. Additionally, beneficiaries may be able to access their inheritances faster.
When Does a Will Have to Be Probated By? — Deadlines to Remember
Because of how many deadlines for the probate process are included in the California Probate Code, you may be surprised to learn that an estate potentially could be probated many years after a decedent’s death!
That being said, it is never a good idea to delay the inevitable. California Probate Code section 8001 specifies that the executor has 30 days after the decedent’s date of death and after learning they are the nominated executor to petition the court for administration of the estate. The consequence for missing this deadline is that you may be regarded as having waived your right to be appointed executor.
Probate formally begins once the will is admitted to probate (if a will exists) and someone is appointed as personal representative (either an executor or an administrator of the estate). From this point, they are given one year to complete the process.
This deadline can be extended by the personal representative filing a federal estate tax, which grants them an additional 18 months. If the estate is complex or there are other complicating factors, such as estate litigation, the court will typically provide even more time for the personal representative to complete their probate responsibilities.
While these are the most common timelines associated with probate, unforeseen events can draw out the process. Sometimes people wait years to file probate, and other times, they neglect their duties altogether.
What Are the Consequences of Failing to Open Probate Within the Allotted Timeframe?
You may be wondering what can happen if you neglect to file probate within the one-year deadline or altogether. Aside from potentially losing your right to appointment as executor of the estate, there are other consequences to be mindful of.
The Estate Continues to Accrue Expenses
The longer you wait to complete your duties as executor, the longer the estate sits there, draining money that could be going to the beneficiaries.
For example, if the estate includes a house or office building, payments (e.g., utilities, mortgage, taxes) will still need to be made on these assets. A failure to do so could result in the property falling into disrepair, or worse, being repossessed.
Beneficiaries May Initiate Probate
Arguably, the most important part of being an executor is that you have to put the interests of beneficiaries first.
If beneficiaries notice the appointed estate representative has neglected to open probate, they can and should take legal action to open probate themselves, as their inheritances may be reducing with the passing of each day.
Assets May Lose Value
If left unattended, the value of some assets within the estate could start to decline. From real estate to vehicles, many assets depreciate as time goes by.
A responsible executor would be taking charge of these assets, preserving them, and selling them (if doing so is appropriate and within the authority they’ve been granted).
By neglecting an estate, its value could lessen, leaving smaller inheritances to distribute to beneficiaries than the decedent had intended.
Creditors May Go After Estate Assets
When a creditor is owed money, it’s unlikely that they’ll just forget about it. Creditors are going to pursue the debt they’re owed one way or another.
An attentive personal representative would settle the debts of the estate as part of estate administration. It is required for all valid debts to be satisfied before beneficiaries are distributed their inheritances.
By not filing probate on time, creditors may take it into their own hands to open probate, since their creditor claims generally will be time-barred after a year from the decedent’s date of death. This would leave the decedent’s assets in the hands of a third party instead of someone they trust.
What Are the Benefits of Opening Probate Within the Allotted Timeframe?
By taking charge of the estate and getting the probate process underway, you’re setting yourself, the estate and the beneficiaries up for success.
The beneficiaries will be glad to see that there’s an executor who’s taking the process seriously, potentially leading to fewer problems between the executor and beneficiaries.
As for the estate, an attentive executor will ensure that estate assets are being properly managed and not losing value.
What Documents Are Needed for Probate?
Depending on the decedent’s level of preparation for their death, gathering all the necessary documents for probate may be quick and easy, or a long, tedious process.
Even one missing document can set back this part of the process for an indefinite amount of time. Ideally, the decedent will have placed their will and other relevant documents in the same location.
The documents you’ll need for filing probate include:
- The decedent’s will (if one exists)
- Order for Probate: Form DE-140
- Notice of Petition to Administer Estate: Form DE-121
- Petition for Probate: Form DE-111
- Duties and Liabilities of Personal Representative: Form DE-147
In addition to the above documents, note that you’ll also need to secure the decedent’s original death certificate, as well as certified copies of it to provide to necessary parties during the administration process.
Submitting Documents to the Court
Once you have all the required documents (including the will), you will need to submit them to the court. This will prompt the assignment of a date for the initial probate proceeding, which can be anywhere from 8-10 weeks into the future.
If you’ve submitted the documents mentioned above within 30 days of the decedent’s death, then you’re in good standing with the court to potentially serve as the executor. But keep in mind that the court is permitted to appoint someone else if it has reason to believe you are not a good fit for the role or if interested parties successfully contest your appointment.
When someone other than the nominated executor is appointed to serve, they will serve as the administrator of the estate, not the executor.