You often hear that probate is so time consuming. I am here to tell you that it is not the fault of the system that probate sometime takes a year or more. Most probates we start end within a year. Many are as quick as eight months; even that is misleading, as the administrator/executor often has full control of the estate within 45 days or less of the filing of the petition for probate.

It is infrequent that the probate process is the cause for a lengthy probate. Sure, in California a probate takes some time. It takes time because the governor and the legislature, in passing laws have determined that there should be some “checks and balances” in the system. The checks and balances are in the nature of making sure that any individual or entity that has a potential claim to any part of the estate has an opportunity to be heard and to make a claim.

Let’s look at the timeline of a probate in California. It begins with the filing of a petition for probate. In the petition, someone is seeking (“petitioning”) to be made the executor/administrator of the decedent’s estate. If the decedent left a Will, it would be generally be the person nominated to be the executor in the Will. If there is not a Will, it could be a relative (more about priority of administrators in a future entry).

The petition will be set for a “hearing” approximately one month from the date it was filed. The reason for setting it out that far, is so that all people and entities who are entitled to have notice, receive notice with enough time to react. In the event they oppose the petition, they can attend the hearing and/or hire an attorney to attend on their behalf.

Here, we have two potential reasons for a probate taking longer than it ideally should. First, in the event that everyone who was entitled to notice did not receive notice, the court will continue the “hearing” for a month. That is to give the petitioner and his/her attorney time to properly serve everyone.

Second, someone may object to the person seeking to be made the executor/administrator actually becoming the executor/administrator. This happened to me today in a probate that I am handling. We submitted a Will naming my client, the decedent’s minister, as her executor. Her son has retained an attorney and is contesting the validity of the Will. The court has continued the hearing date for four weeks.

It is possible in this case that something can be worked out by the next hearing date; however, in the event that it is not worked out, a trial date will be set to determine the validity of the decedent’s Will. This could cause the probate to drag on for months.

When everyone is on the same page, the court appoints the person petitioning to be the administrator/executor and shortly thereafter issues letters testamentary. From the date of the issuance of letters testamentary, creditors of the estate have four months to file a creditor’s claim. It is during this time period that the assets of the estate have to be appraised by the court appointed appraiser. This needs to be done in a specific format that can cause delays if not done properly.

At the end of the four months creditors claim period, the estate is in a position to be closed. It is at this point that a petition for final distribution is filed. Once again it is set for hearing a month or so later.

The petition is not a “slam dunk” unless everything has been done correctly and to the court’s satisfaction. Frequently inexperienced attorneys will not prepare the accounting to the court’s satisfaction. This will cause the court to issue a continuance. And sometimes another continuance if things were still not done properly. This is where working with experienced probate attorneys can save months off the time of the probate.

In summary, probate is going to take some time. A probate in which all of the heirs are “on the same page” and involving an experienced probate attorney is an efficient process. In those situations, we often hear comments to the effect of “that was easier than we thought it would be.”