Why probate gets delayed, in most cases

6 min read

The most common reasons probate can drag on for months or years

  • Probate is the legal process that transfers assets after someone dies from their estate to their beneficiaries.

  • Even the most straightforward cases take at least six months, but complications can add months or years more.

  • Probate delays can be caused by paperwork errors, state-mandated periods to allow creditors to make claims, and complicated assets that are difficult to sell and split up among heirs.

  • Challenges to the will and family squabbles over the estate will extend your probate significantly if family members cannot settle their differences.

  • If a dispute over the will leads to litigation, you can spend years in court.

The probate process can be one of the most taxing pieces in the aftermath of losing a loved one because it is so time-consuming, at a time when you are dealing with the physical and emotional strain of grief.

In most states, an estate without many complications often takes at least six months to complete probate, which is the legal process that authenticates the will, appraises the estate’s value, pays off taxes and debts, and ultimately distributes the estate’s assets to beneficiaries.

The frustrating truth is, even when you’ve done everything prudently on your side, mistakes can happen that are out of your control. And any delays can end up costing you time and money. 

While estate laws vary from state to state and each situation is unique, there are some common issues to look out for that often create delays in the probate process.  

Paperwork and documentation

Arguably the most important thing to get right the first time is the paperwork. Probate requires a lot of it, and it’s crucial to send the correct documents to the court to avoid any delays—something a probate attorney can help with.

Typically, the court will take a few weeks to process court papers, but any hiccups can add weeks or even months to your waiting time.

Of course, some hiccups are unavoidable on your end. Paperwork can get lost in the mail, misfiled, or misplaced by the court, for example. However, you can lower the chances of this happening by double-checking all your paperwork before sending it off to court: make sure all addresses are correct and current, and confirm that you have sent in all the documents that are required.

Creditor claims

Even if all else goes smoothly, there is always a wait when it comes to creditors. From the day the executor is officially appointed in court, creditors will be able to come forward with any claims against the estate.

The “creditor claim period,” as this is called, varies by state. In New York, for example, you have to wait seven months for creditors to come forward with claims. Make sure you are familiar with your state’s creditor claim period. 

Complicated or unusual assets

Estates that include pieces of property that are difficult to value can also slow down probate.

It can take time for all parties to agree on the value of the unique assets, and disputes can easily arise between the estate’s executor and the IRS over the asset’s value for estate tax purposes.

If the asset is difficult to sell, it can cause the estate to remain open until it is sold, or until a beneficiary claims ownership of it. 

If an asset is difficult to sell, it can cause the estate to remain open until it is sold, or until a beneficiary claims ownership of it. 

On a similar note, some estates have assets located in various states, which can cause complications since not all states have the same probate laws. Separate probate processes might be necessary here, which would of course take extra time to administer.

Furthermore, some assets may be difficult to split up between beneficiaries—like businesses, parts of businesses, or real estate—and might require extra time to sort out. 

Tax issues

Not all estates require the filing of a federal estate tax return, but if yours does, this will cause things to move slower since you will have to wait until the IRS processes the estate’s Form 706.

On average, this will take the IRS three to four months from the date the return was filed. It can then take even longer for an actual person to review the return.

On top of that, if there is an issue with the return, yet another couple of months can go by, often delaying probate for 10 months, sometimes more. Of course, it would be best to avoid filing a tax return altogether, but sometimes it is unavoidable, and you will simply have to wait for the IRS to proceed. 

Complicated wills

It’s not unheard of for there to be complications with the will. There can be multiple wills, creating confusion around which one supersedes the others, or the will can be poorly written or contain conflicting instructions.

In these instances, there is nothing you can do but wait for the will to be contested in court, which could cause a year or more of delay.

Power struggles

Unfortunately, one of the biggest causes of delay in the administration of an estate is when beneficiaries disagree, don’t get along, or make contestations to the will.

If one party contests the will or makes a claim against the estate, you can spend years in litigation.

If one party contests the will or makes a claim against the estate, you can spend years in litigation. Even in less extreme cases, a family disagreement could take months to sort out, keeping the probate process in limbo.

If possible, it would be best to try to resolve any issues as a family, without lawyers intervening. 

Far-flung family

Sometimes family members are not fighting over assets, but they simply live far away, are estranged or distant, or otherwise are difficult to get in touch with. When you need these parties to sign paperwork and get it back to you, it can be a struggle to complete everything promptly.

If beneficiaries live abroad, it can take even more time to secure official documents from them via mail. In general, estates with more than two or three beneficiaries will take longer to settle just because more people need to hand in paperwork. 

No matter what your situation is, it’s likely that you will be held up at some point during the probate administration process by some bureaucratic hiccup or another, which may add a couple of months to the process.

However, if you have a particularly complicated situation, and you keep running into issues, you might want to think about whether the executor of the estate—whether that’s you or someone else—is equipped to handle the job.

In most cases, however, minor delays are to be expected, and the best you can do is stay as organized and on top of things as you can. Otherwise, all you can do is be patient and try your best not to get too stressed out. While the probate process can be incredibly frustrating at times, it’s important to remember to take a step back when you need to ●