How long does probate take?
Probate sounds scary and cringy. Executors of estates often have awful stories about the process. This makes sense because it is a complex process and it is coupled with the grief of losing your loved one.
If you are here because you may need to start the probate process or if you are in the weeds in a probate estate right now, I am here to provide you some peace of mind.
Before I get started, you may have questions about probate in general. Check out my blog on “What does probate mean?” for questions about whether an estate will require probate in Iowa. If you have done some research on whether probate is needed, review “What is a small estate in Iowa?” If you are already in probate and wondering if the attorney you hired is charging a reasonable fee, I have some answers at “How much does a probate attorney cost?”. And for a few other answers, visit FAQs on probate in Iowa.
How do I start?
Talk to an experienced attorney and ask them to evaluate the estate and what assets will need to be transferred or sold as part of the probate process. Not every asset requires the court’s supervision to transfer. See my popular article on “When is probate necessary in Iowa?”. Ask the attorney how they are paid to represent the executor. And ask for an anticipated timeline from opening and closing the estate. I recommend talking to 2 or 3 attorneys to see if the answers are consistent.
When do I start?
It is ideal for probate to start within a few weeks of the decedent’s death. I recommend taking time to grieve and process the loss before jumping into the legal process of administering the estate. If you have the original Last Will and Testament, you can start as soon as you are ready; there is no legal requirement to start within a certain number of days from the date of death. If there isn’t a Last Will and Testament, Iowa law (section 633) controls the process and distribution of assets.
How long will probate take in Iowa?
An estate with 1-2 assets, 1 beneficiary and 0-1 creditors can be completed in 5-6 months if personal income taxes do not need to be filed and if the estate has an organized and motivated attorney and executor. In my experience with small estates and estates valued under $350,000, it takes 12-18 months.
Why does probate takes so long?
There are a variety of reasons probate can take a year or more. (1) Probate procedures, like court hearings, naturally extend the time required. (2) The attorney is too busy to work on the case and uses the statutory deadlines as personal deadlines. (3) Multiple creditors and creditor claims against the estate. There are legal requirements for notifying creditors and handling creditor claims. (4) Real estate owned by the decedent may need more time to sell. The initial delay regarding sale of real estate may come from number five (5) the indecision among beneficiaries about whether to transfer or sell real estate. (6) Tax filing requirements may require the calendar year to end.
What are the deadlines for probate in Iowa?
The most commonly heard deadline for probate is 4 months. This is because there is a four-month waiting period from the second publication in the newspaper. From the time of the second publication, beneficiaries named in the Last Will and Testament have the right to object to the Will and creditors have a right to file claims against the estate.
The steps leading up to the publication in the newspaper are important because if you don’t complete them in a timely manner, the estate gets off to a slow start. Before the legal notice can be published in the newspaper, the following need to happen.
Petition for probate needs to be filed with the Clerk of Court.
If bond is not waived in the Will, collect waivers from all beneficiaries or apply for a bond.
If there is not a Will, collect waivers from all heirs or apply for a bond.
Provide a bond to the clerk of court to file with the case.
The Clerk of Court processes the case and sends it to the judge for review. When the judge approves the petition, the Court will issue a letter of appointment to the executor.
As you can see, the bond requirement is a big slow down. Waiver of bond is one of the most important benefits of having a Will prepared by an experienced attorney. The cost of bond will likely cost more for your beneficiaries than the cost of a Last Will and Testament. Read more about how to “Save money with a Last Will and Testament”.
Less commonly know deadlines
A Will must be probated within 5 years of the death of the decedent. Iowa Code 633.331
An executor or interested person can petition for probate of the Will or of the estate at any time within 3 years of the death of the decedent. The later you file, the more difficult the administration will be for the executor.
Statutory deadlines that are missed trigger a delinquency notice to the attorney and executor. Probate delinquency notices in Iowa are sent on June 1st and December 1st of each year.
An estate in probate must close 3 years from the date of the second publication notice.
Do I need an attorney?
In Iowa, probate requires an attorney to represent the executor of the estate. A common misconception is who the attorney represents in probate. The attorney represents the executor as a fiduciary; the attorney does not represent the estate or the individual beneficiaries. A designation of attorney must be signed by the proposed or appointed executor and filed with the court to identify their role.
Getting started with Hope
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I hope you will choose me to be your legal guide for probate.
