Here’s the short answer:
While there isn’t a legal requirement to file your petition for probate, by not doing so you may forfeit your right to be the executor of the estate, have no legal right to own or transfer any of the deceased’s probate assets, delay inheritances, and give creditors more time to claim debts — all of which slow down and exacerbate an already laborious probate process.
In other words, you won’t be able to take or give any money or belongings still owned by the person who passed away. No pulling money from their savings account to pay for your niece’s college tuition. No selling the house they owned. Nothing.
That being said, you should absolutely take the time you need to grieve and recover — your health is paramount. But if you’re able, the sooner you can file for or avoid probate the better.
The faster you file for probate, the faster inheritances are distributed.
Probate is the legal dissolving of someone’s estate, or total collection of their belongings, and is the state’s way of making sure the right things are given to the right people (including their taxes). Pretty much everyone has to do it.
Probate, especially if an estate is pretty big or if people get mad at each other (money can do terrible things to families), can stretch on for months, even years. The American Bar Association estimates probate takes around 6-9 months*. Other surveys put that figure closer to 18 months*, which is definitely closer to what we see at Atticus (avg. ~13 months).
Unless the asset(s) is considered a non-probate asset and won’t be included in the probate process, you have no legal right to that property until you do this.
Atticus Advice: Keep in mind, filing for probate is not the same thing as filing a will. You have a legal obligation to file a will if it exists, and knowingly avoiding filing a will can subject you to criminal charges. Most states have deadlines of ten to 90 days after the death, or after you are officially notified of the death.
Estate settlement deadlines worth knowing
Think of filing a will, initiating probate, and other parts of estate settlement as switches. Once legal switches are flipped, deadlines and timelines attached to those switches come into play.
#1 You have 10-90 days after death to file a will.
Most states have a deadline for filing a will, assuming it exists. If the person who passed did not have a will, this is known as passing intestate and means the person’s belongings will be distributed according to intestacy laws.
#2 Nominated executors usually have 30 days after a will is filed to initiate probate.
If you have been named the executor, executrix, or personal representative in a will, you usually have about a month from the date of will filing to take the next step with the probate court.
Choosing what probate level you need is an important consideration — many families can save time and money by opting for the lowest level possible.
For more on that, read: The Beginner’s Guide to Probate
#3 Creditors usually have between 30 to 120 days to claim a debt against an estate after notices to creditors have been distributed.
One of the most important jobs of an executor is to file notice to creditors. This is when you raise your hand and ping everyone that you know of who may be owed money by the deceased. You also have to submit a public notice saying the person passed, usually in the local newspaper.
Once you attempt to contact everyone, they usually have between 1-4 months to contact you about getting paid. If they don’t, that debt is forfeit.
Read more: 6 Steps to File Notice to Creditors During Probate (and Not Go Bankrupt)
#4 File the tax return on behalf of the deceased or estate by the following tax season.
It’s best to file a tax return on behalf of the deceased or estate by the following tax season. If you don’t, you could owe penalties and interest.
#5 Taking too long in probate can make insurance more complicated
If a house is empty for a while, insurance can get dicey. For example, if the house burns down and no one has been there for a year, an insurance company may get out of paying your claim.
Bureaucracy is slow, so start early.
Even if you feel somewhat stressed now, taking the time to knock out that initial push of filing the will, figuring out if you can avoid probate, choosing the right probate level, and petitioning the court to begin probate is a smart choice.
Probate courts are notoriously slow, so it won’t feel like a sprint afterward, and initiating probate lets you receive your letters of administration or letters testamentary that allow the executor to start controlling, managing, and distributing an estate’s assets.
If all of that still sounds like jargon, check out our guide on How to Succeed an Executor for a more comprehensive look.
And if you’re not using Atticus to get the specific forms, deadlines, and context for probate based on your state and county, then you can ask your local probate court or a hired probate lawyer about specifics, although probate clerks are often too busy to entertain longer conversations.
