I often pose this question at seminars and get a variety of answers. Two of my favorite answers are “years” and “forever”. While neither answer is correct, it typically indicates that someone in the room or a friend or neighbor of theirs has had a bad experience with probate at some point. In Tennessee, a probate estate must remain open for a minimum of four months from the time of first publication. This period is designed to give creditors a period of time to come forward and assert a claim against the estate. However, the estate must remain open the full four months regardless of whether the decedent had any debts.
When an estate is opened in Shelby County, the clerk’s office notifies the Daily News, and they publish a notice regarding the opening of the estate, typically within a week of the opening of the estate. This first publication marks the start of the four months, and the estate cannot be closed until four months after the date of first publication.
However, bear in mind that this is a minimum amount of time, and there is no guarantee that the estate can be closed at the end of the four months. I frequently tell clients that six to nine months is a more realistic average for a straightforward probate. The first accounting is not due until fifteen months from the opening of the estate, so if the estate is closed out within that fifteen month period, you are still doing pretty well.
So what makes it last beyond the four months? A number of factors often contribute to how long a probate estate is open. Preliminarily, there are 8-10 steps that must be completed for every probate estate regardless of the size of the estate, the cooperation of the beneficiaries, or the debts of the decedent. If these steps have not been completed or the proper letter has not been received from Tenncare of the Tennessee Department of Revenue, the estate cannot be closed until those items are completed. If there are minor beneficiaries involved and the will does not contain instructions as to holding those funds in trust, we often have to seek court guidance and have additional hearings regarding handling these funds. If beneficiaries are fighting, the probate process will often take significantly longer than the four month minimum. If the decedent left a number of debts and creditors have filed claims against the estate, each valid claim must be paid in full or settled before the estate can be closed. If the decedent had property in more than one state, the process can take much longer. These are just a few of the factors that can contribute to a lengthier probate process.
Although the correct answer is rarely , if ever, years and definitely is not forever, the probate process can last much longer than beneficiaries are expecting. The probate estate that is open for years is not the norm, but most attorneys who do a lot of probate work will typically have at least a couple of cases that drag on for one reason or another. In many cases in which everything is straightforward, six months should be a reasonable estimation of how long it takes. Unfortunately, you often cannot predict when you open an estate the circumstances that may arise, so it may seem simple on the front end and turn out to be more complex.
If we know some of these circumstances in the planning stages, we often can prevent a lot of the complicating factors by incorporating strategies in the plan to avoid some of the probate pitfalls. Additionally, we can eliminate the probate process altogether through revocable living trust planning. If you would like to learn more about probate or about planning to avoid probate, please contact us so we can guide you through an estate plan that will work for you or through the probate process for a family member.