How Long Do You Have to File for Probate After a Person Dies?

You might have just a few days or no deadline to file a deceased person's will with the probate court.
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The executor of an estate may have fewer than two weeks, several years or no time limit to file for probate after a person dies. Probate laws vary by state, so the deadline depends on where the deceased person resided.

Examples of time limits to file for probate in specific states

The deadline to file a will with the probate court varies dramatically from state to state. Here are a few examples:

Illinois

The person who has the deceased person’s will has 30 days after learning of the death to file the will with the clerk of the circuit court in the county where the deceased person lived. Once the will is filed, anyone can file a written petition asking the court to probate the will.

New York

New York doesn’t set a deadline for filing a will with a probate court after a death. However, it’s often wise to start probate sooner rather than later; probate can take a long time to complete.

New Jersey

New Jersey doesn’t set a deadline for filing a will with a probate court after a death. However, filers must wait at least 10 days after a death to file the will with the probate court.

Florida

Florida requires people to file wills with the probate court within 10 days of the death.

Texas

The executor of a will must file for probate within four years of the deceased person’s death; however, there is no deadline for completing probate.

Hawaii

People have five years after the death to file the will with the probate court.

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What’s involved in the probate process?

Although specific details vary by state, this is the basic probate process:

  1. Someone files the death certificate and will with the court.

  2. The court examines the will to make sure it’s legally valid.

  3. The probate courts appoints the will executor (representative), who is likely the person the deceased person nominated in the will.

  4. The executor creates an inventory of the estate, including financial accounts, digital currency, property and possessions of value.

  5. The executor notifies beneficiaries and creditors of the death.

  6. The executor collects money owed to the deceased person, pays off the deceased person’s debts (from the estate) and distributes the deceased person’s assets to the beneficiaries.

  7. The executor submits relevant records and receipts to the court and requests that the estate be closed.

Who needs to file for probate?

Normally, the executor of an estate or a close family member of the deceased needs to file the will with the probate court. Filing for probate can be done in person, and in some jurisdictions you can file online. If this responsibility falls to you and you don’t feel up to handling it, you can hire an estate planning attorney to take care of probate filing and settling the estate.

Can you avoid probate?

Yes, with careful planning. Here are a few strategies that allow property to pass to heirs without having to file for probate:

  • Payable on death (POD) accounts: If you make your bank or other financial accounts payable on death, the funds immediately go to your named beneficiaries when you die; the account skips probate. Designating an account as POD is usually fast and easy — you simply fill out a form. Some states also allow transfer on death (TOD) deeds, which have a similar application for properties and vehicles.

  • Joint ownership of property: Depending on your state, using joint tenancy with right of survivorship, tenancy by the entirety or community property with right of survivorship means that when you die, the person or people who own the financial account or property with you automatically continue to own it without having to go through probate.

  • Put assets in a trust: Trust assets aren’t subject to probate because technically the trustee (rather than you) controls the assets. After you die, the trustee transfers the trust’s assets to your heirs per your instructions.

  • Give it away: Gifted property typically doesn’t go through probate if you gift the property while you’re alive. The added bonus is you get to see your loved ones enjoy your generosity. For 2023, you can gift any individual up to $17,000 annually without having to file a gift tax return. Married couples can double this, meaning they can gift any individual up to $34,000 annually without having to file a gift tax return.

  • Keep your estate small: Most states have a threshold under which probate isn’t necessary or is simplified. Downsizing your estate by making gifts and donations may help your loved ones bypass or shorten the duration of probate.

What happens if you don’t file for probate on time (or at all)?

Although missing the filing deadline for probate isn’t generally considered a criminal offense, an executor may be sued (or even criminally prosecuted) in most states if someone is financially harmed, particularly if there was malicious/selfish intent to withhold the will from the courts.

Not filing for probate can also make it impossible to validate a will, which in some states could mean treating the person as if they died intestate (without a will); in turn, the deceased person’s wishes may go unheeded.

The estate itself may suffer if probate isn’t filed promptly. In particular, estates may become delinquent on expenses such as vehicle registrations, home insurance premiums and property taxes, and creditors can continue to go after the estate to collect what’s due.

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