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Court of Wills, Estates & Probate

The following articles were written by former Probate Judge Merri Rudd.

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How Long for Probate?

2:54 PM
Merri Rudd
Q: To sell their services to establish trusts and other probate-avoiding systems, lawyers often say, "Probate takes years to settle an estate." From your experience, can you give an average (ballpark) settlement time for an average estate with only a house, car, personal property, and perhaps some simple investments? J.P.B., Las Cruces

I will address the average (ballpark) settlement time for an informal probate filed in the Probate Court. The District Court might have a slightly different timetable, depending on whether the probate is opened and closed informally or formally and whether family disputes delay the case.

In law school we learn that the classic answer to most legal questions is, "it depends." That is true in your case too. I have also learned that "average" is relative.

In an informal probate case, first the personal representative (executor) or his/her attorney presents the Application, death certificate, and original will (if any) to the Court. If the paperwork is complete and accurate, the personal representative receives a signed Order and Letters from the Court within a few days. The Letters, called "Letters Testamentary" if a will exists and "Letters of Administration" if no will exists, give the personal representative power to act on behalf of the estate.

Personal representatives are bound by state law to give notice to all known and reasonably ascertainable creditors of the estate within three months after the personal representative's appointment. They must also prepare an Inventory and Appraisal of the decedent's property within that same three-month period.

Creditors then have two months to present their claims. Personal representatives have 60 days to allow or disallow the creditors' claim. If a creditor's claim is disallowed, the creditor has 60 days to file a request for allowance.

In addition to these statutory duties, the personal representative must also file the decedent's final income taxes and distribute the estate assets. If the estate exceeds $1 million, the personal representative must file a federal estate tax return, IRS Form 706, within nine months of the death, as well as a state estate tax return.

As long as the personal representative reserves enough assets to pay final taxes and expenses, however, he or she is free to partially distribute the estate. This means the personal representative, once appointed, could give the heirs or devisees named in the will some of their inheritance quickly.

Can you see where I am going with this? Depending on the efficiency of the personal representative and his/her attorney, how quickly creditor claims are resolved, the tax situation, how long it takes to vacate and sell the house, and other factors, an "average" probate can take about six months to a year to complete.

(c) 2002, Merri Rudd & Albuquerque Journal, All Rights Reserved

appeared March 7, 2002 Albuquerque Journal, Business Outlook

Reprinted with permission



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