WHY DOES PROBATE TAKE SO LONG?

By Stan Butterfield

The Death Certificate

Often the first delay in this process is getting a person’s death certificate. Depending on the doctor that is considered to be the “attending physician” it can be a month or more before a death certificate is signed and made available through the vital statistics office. Courts want you to prove that a person has actually died before you start giving away their property so they are sticklers for having a death certificate filed at the beginning of the probate case.

A Will

In many families it takes some time to determine if a person had a will or not.  Even though a probate case can go forward whether or not a person had a will, it is better to be sure about this question. (To see what happens without a will, click here.) How the probate case is processed, with or without a will, differs. People like to make sure if there is or isn’t a will because if you start the case without a will, and then later find one, it can cause further delays in the court process.

Filing Probate

Once you have a death certificate and know whether or not there is a will you can file a probate petition with the court.  The court then appoints a person to be what is known in Oregon as the personal representative. This position goes by different names in different states, but no matter what you call it, this person is in charge of taking care of the business of the estate. The courts issue papers to this person that proves they are authorized to take care of the estate’s money and property.

Notice

One of the first things the personal representative does, is to publish notice in a newspaper that the person has died and that creditors need to make a claim against the estate or their bills may never be paid. The law gives creditors four months after this notice is published to make their claim and if they don’t, then almost any claim except for taxes can be disallowed.

During this time that the personal representative is waiting for creditors to make claims they are also taking care of other business. If the deceased person owned a home, the personal representative will likely be selling the house and any personal property, not to be disposed of in a different way specified in the will.  Depending on the individual circumstances this process alone can take a long while.  I have had cases where the deceased was a hoarder or had extensive and complicated investments that were not easy to sell.  These types of situations can delay probate for months. 

Taxes

It is also common, due to dementia or other chronic health issues the decedent may have had prior to their death, that income tax returns were not filed for several years before the person died.  The personal representative may have great difficulty reconstructing the decedent’s income and deductions for these past years.  This is perhaps one of the most challenging and tricky parts of probate.  The IRS and some state revenue departments have been known to try to collect from heirs on taxes that the decedent owed and didn’t pay.  These tax collection efforts are limited in scope to whatever the heir received from the estate.  However, no one wants this kind of thing to happen.  For this reason, most personal representatives, their lawyers, and CPA’s go to great lengths to make sure all taxes are paid before they distribute money or property from an estate to the heirs. This can be the biggest factor in causing probate to take a long time to finish.  If you are an heir, I am sure you would prefer that the personal representative got this part right. This is far preferable to the possibility of receiving an inheritance only to have the tax man show up later with his hand out. 

Further Delay

There are other reasons a probate case can take longer, e.g. litigation or property with a clouded title, etc.  However, the things I have mentioned represent the most common timeline for a probate and explain why you may be waiting longer than you would like to receive an inheritance.

Stan Butterfield is a probate lawyer based in Dallas, Oregon.  He typically handles cases in Polk, Marion, Linn and Yamhill counties.  If you are a family member or friend of a person who has left an estate that needs to be settled, he may be able to help you.  Please give Stan a call—(503) 623-2427.