After a loved one dies, their money and property must be distributed to the right people, either according to their will, their trust, any beneficiary designations, or according the state’s default distribution scheme (found in its “intestacy” statute). While most people want the settlement process to be done ASAP, probate can take 6 months or more. Yes, you heard that right. The time delays create unnecessary stress, especially for families who need access to those accounts or property.
5 Reasons Probate Takes So Long
There are many reasons why the probate process takes so long. Here are five of the most common:
- Paperwork. Managing probate-required paperwork can be a big undertaking with structured timelines and court-imposed deadlines. Additionally, law firms are often involved.
- Complexity. Estates with numerous or complicated accounts or property simply take longer to probate, as there are more items to be accounted for and valued.
- Probate court caseload. Most probate courts are dealing with high caseloads and limited staff.
- Challenges to the will. Heirs, beneficiaries, and those who thought they’d be beneficiaries, can object to and challenge the will’s instructions and legal requirements. While state law dictates the length of the time period during which they must object, will challenges can add years to the probate process. Some of the most common challenges include assertions that the will maker was:
- Lacking testamentary capacity (i.e., lacking the legal or mental ability to make a will)
- Delusional
- Subject to undue influence (wrongful pressure to do something they didn’t want to do)
- A victim of fraud
- Creditor Notification. The deceased person’s creditors must be notified of the deceased person’s passing and the probating of their estate so they have time to submit any legal claims for debts. This time period also varies from state to state, but it is generally four to nine months. In Missouri, it is six months.
The bottom line is that, while most state probate laws are designed to keep the process moving along in a timely manner, that’s more of a plan than a reality. Fortunately, it’s not that hard to avoid probate entirely.
Simply Put, Avoiding Probate with Beneficiary Designations, Joint Titling, or a Trust Is Usually Better
Simply put, had the deceased person created a trust to hold their accounts and property, the long, complicated probate process could have been avoided. By creating and funding a trust, those accounts and property are no longer viewed as being owned by the deceased person and are not subject to the supervision of the court. Their distribution is controlled by the instructions left in the trust agreement. Administering a trust instead of a probate is usually quicker – meaning that beneficiaries receive assets more quickly, costs are reduced, and stress levels are kept to a minimum.
Alternatively, a person could identify designated beneficiaries on certain types of accounts and property. For example, IRAs, 401ks, annuities, and other forms of financial assets often allow for beneficiary designations that will operate to transfer legal ownership of the assets immediately upon death. In some states, including Missouri, real estate can be titled in beneficiary form to transfer automatically at death, and so can cars and boats. Additionally, certain types of property (real estate, titled personal property, and many accounts) can be titled jointly, which will cause the asset to automatically transfer to the joint owner at death.
Now, as with everything, there are pros and cons of using these types of solutions, especially beneficiary designations. Talk with an estate planning lawyer to learn more about how these rules might apply to your unique circumstances.
