Sunday, April 05, 2015

Probate Patience: How Long Should it Take to Complete Probate?

A common question that comes up in client meetings is 'how long does it take to get through probate?'  There a lot of variables that go into that determination.  However, it is fair to recommend some patience for the process to get completed.

Notice Publication - This is one of the primary delays.  One requirement is that the executor/attorney needs to publish notice in a local newspaper to run for 2 consecutive weeks.  Then, after the 2nd publication, there is a 4 month period in which anybody can file a claim in the estate or contest the will.  There is also a requirement that notice be given to all interested parties.  The claims process/will challenge ends than later of (1) four months after the second notice publication notice or (2) 30 days after mailing notice.

Inventory - An inventory needs to be completed and filed with the court.  That includes getting date of death values and listing of all assets.  Depending on the organization of the records and information, that may take some time to get assembled.  This inventory should be filed with the court within 90 days after the appointment of the executor.

Tax Filings - In addition to filing the decedent's final individual income tax return, there are also fiduciary returns to be filed.  In Iowa, the Iowa Department of Revenue has to approve and issue a proper clearance before you can close the estate.  That review process can take up to 90 days after filing.  Other tax filings potentially include the Iowa Inheritance Tax return and the federal estate tax return (for larger estates).  Both of those returns also have to be approved and a proper clearance issued.

Creditors & Challengers - You also have the potential issue of claims filed in the estate and resolution of those claims. Then, if you have a will challenge, you are really getting the probate case extended out for several months or possibly years.

On average, I estimate a year to complete the probate process.  Sometimes they can close sooner, but sometimes later.  Every case is different with different facts and different persons.

10 comments:

Donna said...

How long in the state of Iowa does the executor have to file the will?
Is it true that if realestate is owned by the deceased that probate is a must?

Is inventory a must? What must the inventory include?
My siblings who are the excutors have already begun to remove cash and others items from our Mons home..
Thank you

Matthew Gardner said...

Donna-

Technically, you have five years to go through probate. So, they could wait awhile. However, there is a provision under Iowa Code §633.285 that requires the person in possession of the will to deliver it to the court upon being informed. The court may order them to turn it over upon a request and held liable for damages.

If there is real estate that is only owned by the decedent, then probate is necessary. (Unless you want to wait 5 years before selling or doing anything with it.) Real estate is typically the one asset that will typically require probate of some type.

An inventory is a requirement. It includes anything the decedent owned at death, itemized, and valued.

Donna said...

Thank you Mathew.
I told my sister an inventory was necessary and she responded, she is not itemizing every thing. Just doing a round about figure of household goods because she is the excutor and she can do what she wants...
Will this suffice?

Are you saying an inventory is required for every towel, dish and etc...?
She has already removed many items from the house and will not disclose precisely what was taken and was told not to by a lawyer..
Thanks again.

Matthew Gardner said...

Typical inventories don't itemize down to the last fork for personal property. Normally, those items as listed as "Misc. personal property". Unfortunately, disputes over those personal property items do create problems. The issue for you (and your sister) is whether you want to go through the process of courts/attorneys fighting over towels, dishes, etc. Sometimes you do, but just make an informed decision about the potential costs. It can also be difficult to "prove" that an item was in your mom's possession. Do you want to pay an attorney $1,000+ to fight over a used towel set valued at $15?

Donna said...

Another question please....
My mom owns a few parcels in her name with a house however when my dad was alive he purchased a parcel adjoining this property and my mom never had it transferred into her name when he died. She has now died. My question is, Can this parcel be sold with the rest even tho it is till in my dads name and not my moms? Would there be complications in doing so and if so what are they?
Thank you!

Matthew Gardner said...

My favorite answer to give...it depends.

There are certain real estate rules that govern a proper response. For example, it depends if it was 5 years or more since your father died. It also depends on if your dad had children from a prior relationship. It also depends on the size of your dad's estate. It is possible, but it may take some work to get clear title by affidavit if it has been more than 5 years. Or, it may take the full probate of your father's estate in order to sell that land.

Donna said...

Thank you.
How do I get a copy of the inventory report?
I requested one from the excutor and she said she didn't know...

How will I know when I can protest something I disagree with in probate court?

Supposedly our moms house went up for sale today, I asked my sister the excutor for the name of the realtor and she refuses to give it to me...does she have authority to do this?

Thanks again!

Matthew Gardner said...

Donna, you really like this post. I would encourage you to get specific legal advice to your questions as it looks like you have quite a few issues about the probate process that probably shouldn't be answered in a forum like this.

Anonymous said...

Matthew: first, I'd like to thank you for writing this blog. It has been an extremely helpful resource for me this week in trying to get a handle on the issues with my mother's estate. My mother recently passed away in Colorado where she lived. I have filed the probate here and am the Personal Representative (executor) duly registered with the court, and my brother and I are her sole heirs. However, my mother and her sister inherited their father's farm in Iowa. They had decided recently to sell it as neither of them were getting any younger, and they wanted to avoid complications. The property was auctioned off and sold in August, but the closing was not scheduled until the end of November. My mother became sick and passed away quickly two weeks ago. The farm auctioneer is telling me that the closing will likely be delayed (I'm pretty sure this is because of the waiting period for creditors). I am starting the ancillary probate process in Iowa (most likely with an attorney), but have a couple of questions
1). Other than the farm income (a farm manager took care of planting, harvesting, and selling the crops), my mother had no dealings in Iowa (no bank accounts, no vehicles, life insurance, etc.), so I can't think of any situation where creditors would have any claim on her in Iowa. I'd like to avoid delaying the closing, or at least be able to delay it as little as possible. Is that possible?
2). Since most of the work (inventorying, appraising, etc) was already done prior to the auction, what is a reasonable fee to pay a lawyer to probate this estate in Iowa?

Matthew Gardner said...

Anonymous-

I'm sorry about your mother's passing. While you have several specific questions, I ethically can't give legal advice here on the blog. I would be glad to visit with you privately about some specifics if you like to engage my services.

However, I can give some general legal information related to ancillary proceedings here in Iowa:
1. Being able to sell real estate that was owned by a decedent (whether ancillary or not) can be completed at any time. Contrary to common misunderstanding, there is not a total freeze in an estate. The creditor period only delays distribution out of the estate. Thus, you can sell the property, but you may not be able to distribute until later. (One caveat: unless the court waives court approval, you may need to get the court to approve the sale. This also assumes no problems getting the estate opened.)
2. The fee is subject to discussion with the attorney. Keep in mind that there is still the same amount of work necessary (opening the estate, publishing notice, giving notice, tax filings, sale/distribution, and closing the estate) even though the items are organized. You may be able to work on an hourly basis, but I would assume probably ~15 hours of work to complete is a bottom line.