How Long Should You Wait to File for Probate?

How Long Should You Wait to File for Probate?

How long should you wait to file for probate? Should you file for probate right after the decedent’s death? A year later? Months later? When is a good time to do so, or the correct time to do so?

There is no specific time limit within which you should file for probate petition. The probate code simply states that the petition may be filed at any time after a decedent’s death. However, there is generally nothing gained by delay. This is because formal administration of all estates must await appointment of the personal representative. And, the earlier a probate is opened, the sooner the estate may realize the protections of the Probate Code creditor claim bar. Moreover, certain “collateral” time limitations may affect the timing of initiating probate.

For example, absent a showing of good faith, an executor named in decedent’s will may be held to have waived the right to appointment by failing to petition the court for administration within 30 days after learning that the testator died and that he or she is named as executor.

As another example, delay in commencing probate proceedings also enhances the risk that something negative could impair title before the estate is resolved.  Examples of a negative title event could be the property being secretly sold to  a bona fide purchaser or someone acquiring prescriptive rights or rights through adverse possession. If this occurs, the heirs and beneficiaries may be excluded from claiming an interest in the estate property.

Accordingly, if there is substantial delay in commencing probate, potential beneficiaries should consider recording a notice that will impart  nconstructive notice to the world and cutting off potential BFP rights.

Schorr Law has experience with resolving probate issues related to probate of real property. To see if you qualify for a free 30-minute consultation regarding your matter, please contact us by phone, email, or send us a message through our contact form.

See related: Probate: When Is It Necessary?