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March 6, 2021


Time Limits on Probate Applications: What You Need To Know

The Uniform Rules for New York State Trial Courts, Part 207 imposes no formal probate time limit on executors. Theoretically, you could wait for decades to apply for probate, and some people have. Once you begin the process, however, individual courts do set their own probate time limits for when various documents must be submitted. Although there is no formal deadline that applies in every case, practical deadlines do exist.

Why You Shouldn’t Drag Your Feet Probating a Will

A probate case in a law firm.Under almost any circumstances it is generally best to file and probate the decedent’s will as soon as you can. The probate process is going to require the cooperation of witnesses, beneficiaries, executors, and others. Proceedings could be delayed indefinitely if these parties are not available when they are needed.

Please also keep in mind that most New York Surrogate Courts (the probate courts) will demand an explanation for a late probate filing and will want to know if any of the interested parties, such as estate creditors and beneficiaries, were affected by the delay.

How Long Does New York Probate Take?

Probate time limits run in two different directions–-maximums and minimums. Deadlines, of course, set maximum times. If you are looking to complete the probate process as soon as possible, however, you might be more interested in minimum times. While there are no formal minimum times, there are practical minimums that prevent you from closing probate before a certain amount of time has passed.

The short answer to the question, How long does probate take in New York? is about 15 months. This answer is misleading, however—the length of time that probate takes varies considerably from estate to estate. Even without a will contest, probate could take years. On the other hand, in a best-case scenario, probate could be closed in as little as three or four months.

The Probate Timeline

A typical probate timeline looks something like this:

  1. The executor candidate locates the decedent’s will and reads it to the heirs.
  2. The executor candidate collects certain preliminary information, completes and signs the Petition for Probate. They then submit the Petition for Probate, the will, and the death certificate to the New York Surrogate Court in the county of the deceased person’s residence. The New York State Department of Health should be able to provide you with a copy of the death certificate. The Petition for Probate asks the court to validate the will and approve the executor.
  3. After a delay of at least three months, the court will issue letters testamentary or letters of administration to the executor. These documents establish the executor’s authority and commence the executor’s duties.
  4. The executor then sends a notification to heirs and creditors of the estate by certified mail and to the public by running an advertisement in a local newspaper.
  5. Next, the executor identifies and inventories all estate property (including intangible property such as accounts receivable) and all outstanding estate debts.
  6. The executor then arranges for the appraisal of estate property and retitles assets into the name of the estate where necessary (real estate holdings and bank accounts, for example).
  7. The executor arranges for an accountant to prepare estate and income tax returns.
  8. The executor calculates the estate’s total liabilities—taxes, other debts, and probate expenses.
  9. The executor sells estate assets, if necessary, to pay estate creditors. Steps 5 through 9 (“settling the estate”) takes an average of about nine months.
  10. The executor prepares an accounting statement of how much of the estate assets remain for beneficiaries to inherit and distributes this accounting statement to beneficiaries.
  11. The executor then asks the court to approve the final accounting.
  12. The executor distributes estate assets to beneficiaries and the beneficiaries sign beneficiary agreements that confirm the legitimacy of these transactions.
  13. The executor then asks the court to close probate and discharge them. Steps 10 through 13 (“closing the estate”) typically take about three more months.

A probate estate worth no more than $30,000 with mainly cash or securities may be subject to an expedited procedure that will take far less time than the procedure detailed above.

Factors and Circumstances That Could Delay the Probate Process

A man talking to about probating a will.A number of events or circumstances could seriously delay probate proceedings. In a worst-case scenario, the distribution of probate could be delayed for a decade or even longer. Following are some of the main causes of probate delays:

  • The estate needs to file estate tax returns (not all estates need to file estate tax returns, however);
  • Court delays occur, sometimes for frivolous reasons such as a judge’s vacation or a clerk misplacing your documents;
  • Bureaucratic delays arise from private institutions such as banks;
  • The estate takes time to sell illiquid assets, such as a house;
  • It takes time to get all beneficiaries to sign closing documents in front of a notary public;
  • A beneficiary disputes the accuracy of your accounting statement with the court, which can delay probate for a year or more;
  • A will contest erupts—even a frivolous will challenge (which is very, very common) can add months or even years to the probate process; or
  • The decedent owns businesses or real estate in another jurisdiction (especially in a foreign country).

The foregoing is only a partial list of factors and circumstances that can delay the probate process. A very general rule of thumb is that the larger the estate is, the longer probate takes.

Let’s Make It Happen Together

Probate proceedings do not always require you to retain a lawyer. Nevertheless, unless the amount at stake is very small, it would be a good idea for you to get one. This is especially important if you are the estate executor.

If you are facing probate, or if you would like to learn how to keep your assets out of probate altogether, please contact our proven lawyer at the Law Office of Andrew M. Lamkin, P.C. online or by calling 516-605-0625.