After a loved one dies, family members often ask: “How long does probate take?” In general, provided that there are no difficult parties, no difficult assets, and no other complications, a probate case will take approximately 6 to 12 months to administer from start to finish. After the appointment of the personal representative, there are several steps that need to be completed. This blog discusses these specific steps and also discusses the factors that can cause the probate process to be delayed.
The following is a brief list of the primary tasks that the personal representative needs to complete:
Notice to Heirs and Devisees. Once the personal representative has been appointed, he or she must send notice of the probate case to all of the heirs and devisees. The notice includes the name and address of the personal representative, indicates that the notice is being sent to persons who have or may have an interest in the estate, discloses whether a bond has been filed, and describes the court where papers relating to the estate are on file. Notice of the appointment of a personal representative and notice of the probate of a Will must be mailed within 30 days of the probate of the Will. In an informal probate case, an heir has four months from the receipt of the notice to commence a formal proceeding.
Notice to Creditors. Upon appointment, the personal representative should give notice to all creditors of his appointment. The notice to creditors announces the appointment of the personal representative, gives his or her address, and notifies the creditors that, unless they present their claims within four months from the date of first publication, their claims are forever barred. The creditor’s claim period expires four months from date of first publication. In addition to publication of notice, personal notice must be given to known or ascertainable creditors.
Notice to the Internal Revenue Service. The following may need to be filed with the IRS:
Notice to the Arizona Department of Revenue. The following may be filed with the ADOR:
Tax Returns. The decedent’s final individual income tax return is due on April 15th of the year following death. Prior years’ tax returns may also be due. Gift tax returns for any significant gifts made in the year of death are due at the same time as income tax returns. If an estate tax return is required, it is due nine months after the decedent’s date of death.
Inventory and Appraisement. The personal representative must prepare an Inventory and Appraisement of the decedent’s property. The Inventory sets forth the fair market value of each item as of the date of death and the type and amount of any encumbrance on the property. The personal representative is responsible for valuing all of the probate assets for purposes of preparing the Inventory. An appraiser may be needed to appraise any property the value of which cannot be readily ascertained. The Inventory must also disclose whether each item of property is community property or separate property. The Inventory is due 90 days from appointment. The personal representative may either file the Inventory with court and send a copy only to interested persons who request it; or mail the Inventory to all of the heirs or all of the devisees and to any interested person who requests it.
Final Accounting and Closing the Estate. A probate proceeding can be closed formally (i.e., after notice and a hearing) or informally (i.e., without a hearing). An informal closing is done by filing a Closing Statement that makes the following avowals:
Note that there is no requirement of a court-approved accounting although an accounting in some form must be provided to all heirs/devisees of the probate estate. Typically, a waiver of accounting is obtained from such persons that accompanies the accounting that is an Excel spreadsheet containing an income and expense statement and a beginning and ending inventory. The waiver is then filed with the court along with the Closing Statement.
If a waiver is not forthcoming or if there are objections or other grumblings from the beneficiaries, then a formal proceeding with a court-approved accounting should be initiated. While there is no statutorily mandated format, the Maricopa County probate courts will insist on an accounting with excruciatingly strict compliance with the “guidelines” of the probate court accountant.
There are many factors that can lead to a delay in the administration of a probate estate. One factor that always causes delays in the probate administration and increases the attorney’s fees and costs associated with a probate is the presence of difficult parties. Most probate issues can be resolved by the parties with appropriate dealings outside of the court. However, like any contested matter, the more that that personal representative has to go back to court to get administrative issues resolved, the more the probate process will be delayed. Another factor that can delay the probate process is a difficult asset, such as a hard to sell timeshare or other estate asset. Finally, one additional factor that can delay the probate process is a formal accounting in a case. Because the court accountant and the court typically take months to approve a final accounting, this almost always delays the probate process considerably. For this reason, unless it is unavoidable, I always encourage that personal representative to do an informal accounting with the heirs/devisees, rather than a formal accounting approved by the court.
As you can see, there are several things that the personal representative needs to do in order to completely administer a probate case. That is why I always recommend seeking the help of an experienced probate attorney in completing these tasks.
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