How Long Does Probate Take?

One of the chief frustrations of the probate court process is how much time it takes. Unfortunately, much of that time is out of your hands. Once filings are made, everything must move on the court's schedule, which is shaped not only by legal waiting periods but by staffing levels, funding, and even office politics. And it is likely to take at least two months simply to get the authority to open the estate proceedings.

Ultimately, whether you will have it settled in nine months or in two to three years depends on the size of the estate and its complexity—particularly whether someone brings a legal challenge to any aspect of the proceedings.

Getting Started: The First Filing

To open the proceedings, a prospective personal representative of the estate must go to the Surrogate's Court in the deceased's home county and file for what are called "letters." If the deceased person, or decedent, had a will, these are called letters testamentary; if not, they are called letters of administration. These confirm that the person receiving them is the personal representative—the executor or administrator of the estate—giving them the legal authority to carry out their duties.

It will generally take two or three months to receive the letters from the court, assuming that there will be no complications or challenges. The petition for letters must include the original will, and the will's legitimacy must be established by witnesses unless it is self-proving (notarized at the time of signing).

The petition must also be served on those with an interest in the estate, who may decide to challenge the legitimacy of the will or the representative's appointment. A single filing can drag out a case for months.

The Work of the Estate

After the personal representative receives the letters, any unknown creditors of the estate have seven months to file a claim. The estate cannot be closed before this, and the beneficiaries are unlikely to receive their gifts any earlier. In the meantime, the personal representative will undertake the many responsibilities of the estate. These include:

• Preparing an inventory of the estate for the court
• Appraising the estate assets
• Selling properties if necessary to pay debts and liabilities
• Preparing a list of creditors of the estate, including the last expenses of illness and death
• Filing income tax returns for the deceased and/or their business
• Filing an estate tax return for high-value estates
• Maintaining real estate and other properties requiring attention
• Creating a final accounting for the estate

Many of these can require professional assistance, such as a CPA for the accounting and tax filings and professional appraisers for the inventory. The estate often does not have sufficient cash on hand to pay expenses like these, together with the final debts and taxes that must be paid before the estate can be distributed. In such cases, the decedent may have expected that real estate or other property would be sold, another lengthy undertaking that usually involves professional assistance.

Clearing tax liabilities is another time-consuming process, even with the best efforts of those filing the returns. In order for a personal representative to sell real estate with a clean title, the state of New York must generally issue a release of lien, confirming that there are no unpaid taxes. The decedent will likely owe yearly income taxes to the state, although they may or may not owe estate tax. The New York estate tax threshold changes yearly; for those who have died in 2023, it is $6.58 million. Although this sounds quite high, it may include gifts made during the decedent's lifetime, so it is vital to consult an accountant.

It will also take some time to confirm with the IRS that the decedent has no further federal income tax liabilities. Federal estate and gift tax liabilities will result in further processing delays in the proceedings. As the federal estate and gift tax threshold is $12.92 million for 2023, that does not concern most people. Nonetheless, in any case, the IRS does not move swiftly.

If a will makes unexpected bequests or leaves hard feelings, relatives or beneficiaries may file challenges to the will. They may claim that a certain gift was invalid or that the will itself is illegitimate. The cost of litigation usually limits this to high-value estate cases. However, probate proceedings can bring out the worst in stressed and grieving people, and some may be willing to go to court simply to make their point.

The writer of the will can avoid some of this by adding a clause that disinherits anyone who challenges the will, called an in terrorem clause. Nonetheless, in New York, interested parties still have the right to challenge the validity of the will or make other filings regarding the conduct of the estate without risking their inheritance. Such challenges can result in the estate taking up to three years to settle.

A small estate may offer the advantage of a quicker proceeding. New York law provides a relatively streamlined process for a small estate, one worth less than $50,000. However, if the decedent was a sole owner of real property, the small estate proceeding cannot be used for it.

The New York probate process is particularly complex and challenging. The advice and assistance of an estate attorney are crucial to avoid a misstep that could add hundreds of dollars of expenses, months of waiting, and emotional fallout to the proceedings. For a free consultation about your estate needs, call 516-447-2144 to schedule an appointment in our Manhasset or New York City offices.