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How long can someone keep a will from being probated and what is the procedure to do this?

Houston, TX |

My sister's lawyer stopped probate on my father's will- I do not know why and her lawyer will not say yet. It has been 3 months since my father died and what I am hearing is that it will be another 9 months at least.

Attorney Answers 4


These comments are made for educational purposes only and do not constitute legal advice. No attorney-client relationship exists between us.

The estate must be opened within 4 years of death, so this delay is no necessarily excessive. You can get a copy of the will and take to your own attorney for analysis if you suspect some kind of foul play.

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How long it takes to probate an estate depends on the particular state's laws.

In California, for example (which is where I practice), there's a MANDATORY 4 month waiting period after the court appoints the executor. During this time, the executor is required to notify potential creditors and give them an opportunity to file claims against the estate. The executor is also supposed to figure out what the estate owns during that time period and file an inventory with the court.

Your sister will also need to file your father's 2008 income taxes before the estate can be distributed. And if it was a large estate (over $2MM in 2008) she will also need to file a federal estate tax return. The estate tax return isn't due until 9 months after your father's death. And virtually 100% of the estate tax returns filed are audited by the IRS. So I routinely advise my clients not to close the estate until after the audit (which can take as little as 6 months & as long as 2 [or more] years).

In California you can file a special form with the court called a "Request for Special Notice" that would require the executor to notify you about most actions (without that, you don't automatically receive notice of things unless they directly concern you). You should find out if your father's state has similar forms and file it.

If you haven't heard anything after several months (at least another 9 or 10 months), you can file a petition with the probate court requesting that the executor file a formal status report - -- in California, the status report is only required once every 12 months, so if you ask too soon, your request will be rejected.

Of course, you can always retain your own lawyer and see if your sister's lawyer will provide more information to your lawyer than s/he is providing to you.

This information is not intended to substitute for professional legal advice and does not create an attorney-client relationship. You should accept legal advice only from a licensed legal professional with whom you have an attorney-client relationship.

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If your sister has possession of the will, you can force her to turn it over to the county clerk. You should probably get your own lawyer to ask why this is taking so long (although, as others have noted, three months isn't unusual.)

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This post is for educational purposes and does not create an attorney-client relationship between us.

In submitting this post, I am assuming that your sister has probated the will, was named the executor under the will, and is currently serving as executor of your father's Estate.

I often advise my clients serving as executors not to make distributions for a considerable period of time from the estate over which they serve -- sometimes a year from the date of death and sometimes even longer.

This is because part of the probate process is dealing with claims against the estate. If the executor were to pay out all of the estate's assets to the beneficiaries under the Will and then later receive a claim for a debt of the decedent's, the executor would have no money with which to pay it. In some cases, the executor could be held personally liable for such debts.

It is always been my thought that it is safer to keep back a certain percentage of the estate's assets to pay claims of unknown creditors of the estate (i.e., people to whom your father owed money). The amount to hold back varies with each estate and the executor's familiarity with the assets and debts of the decedent (i.e., the less an executor knows about the financial affairs of the decedent, the more I suggest he or she keep back in reserve to pay the claims of unknown creditors).

Best of luck!

Randall Perrier
Board Certified in Estate Planning and Probate Law

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