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Death Certificate

Why Probate Takes So Long and How to Speed It Up

In general terms, probate is a judicial process where a court of law (i) appoints a personal representative of a decedent’s estate and empowers the representative with authority to marshal in the decedent’s assets and have them appraised; (ii) oversees notice to, and payment of, creditors of the decedent; and (iii) “approves” a decedent’s will and the beneficiaries thereof, or determines successors in interest (when a decedent dies without a Will), and authorizes distribution of any remaining assets accordingly.

This judicial process takes a long time, because creditors of the decedent and interested parties must be given adequate notice and time to respond with demands and claims.

The (unofficial) average probate takes 15 months. However, under the right conditions, a probate can be completed within 6-1/2 months. That timeframe is broken down as follows:

Day 1: Petition for Probate is filed.  Under Probate Code section 8110, all interested parties must receive notice of the petition 15 days before the hearing. Because of this requirement and the requirement to publish notice of the petition, most courts schedule the hearing date between 30-45 days after the petition is filed.

Day 30: Hearing on Petition for Probate. At this hearing, if all goes according to plan and there are no objections, the petitioner (now called an Administrator, Executor, or Personal Representative) will be issued Letters Testamentary or Letters of Administration (collectively, “Letters”).  At that point, the Personal Representative typically has authority to collect assets, have them appraised, ascertain and pay off creditors, and get ready for final distribution.  When properly noticed, creditors have four months from the date when Letters are issued to bring their claims. (Prob. C § 9051.)

Day 150: Petition for Final Distribution is filed.  At this stage, the Personal Representative has collected and appraised all assets of the decedent, paid all valid claims, and is ready to distribute to the decedent’s heirs. The interested parties of the estate must, again, be noticed of the petition 15 days before the hearing.  Because of this requirement, most courts schedule the hearing date 30 days after the petition is filed.

Day 180: Hearing on Petition for Final Distribution.  At this hearing, if all goes according to plan and there are no objections, the personal representative usually receives an order authorizing the Personal Representative to withhold a small reserve and distribute the remainder of the estate to the decedent’s heirs.  Some courts require the Personal Representative to file Receipts on Final Distribution, signed by the heirs at law.

In representing Personal Representatives, I have completed probates within 6-1/2 months in probate courts in Santa Barbara County and Ventura County.  In Los Angeles County, even with perfect conditions, the shortest probate I have completed took 12-1/2 months.  The probate courts in Los Angeles County are backed up.  When filing the Petition for Final Distribution, for example, the assigned hearing date is usually 4-7 months away.

The typical culprits in lengthy probates are objectants and limited authority.

Granted, sometimes, there is nothing you can do about an objectant.  However, when I find out there is a family member that is a “difficult person that will object to everything,” I usually counsel my clients to let me deal with the difficult person. In most cases, I outline the entire probate procedure for my client and advise my client to allow me to share that entire probate procedure with the difficult person in a respectful manner, including providing the difficult person with the same updates I give my client.  Keeping everything transparent and keeping everyone informed is the best way to avoid hostility, objections, and delay.  Some attorneys foster hostility and treat all non-clients as adversaries.  Turning a simple probate into World War III is in nobody’s interest – only the attorneys benefit from that.

Similarly, when a decedent dies without a Will or with an “insufficient Will,” it often takes negotiation with the interested parties to allow the Personal Representative to administer the estate with full authority under the Independent Administration of Estates Act (IAEA Authority).  Without IAEA authority, the Personal Representative may need to obtain a court order in order to sell assets of the estate, pay creditors, etc.  Before filing the Petition for Probate, I always try to find a way to give my client full IAEA Authority.  This effort usually entails explaining the petitioner’s intentions to the interested parties (“We are going to hire a realtor to sell the family home… pay off dad’s ambulance and hospital bill… and distribute the remainder equally to his kids”) and pointing out the benefits of granting full IAEA Authority (“if you object to the Petition or don’t otherwise approve the Petition for Letters with full IAEA Authority, the Court will need to approve the sale and it will take an extra 40-60 days (minimum) to get you your money… and you’ll probably get less money because buyers don’t want to wait around for court approval”).

If you are looking for an attorney that can guide you through the probate process, and deal with all of your crazy relatives, as painlessly and expeditiously as possible, in any jurisdiction in California, please don’t hesitate to call me.