A common question about probate is “how long does the probate process take?” What most estate planning lawyers will tell you is that there is no simple answer. The process is different for every estate.

While every case is different, participants in a probate case should expect the case to last at least a year and possibly longer. Illinois probate law gives creditors of the estate six months to file a claim after the probate estate is open and published notice is given. This allows for creditors to come forward and file a claim if money is owed to them by the estate. It will take time both before and after this allowed six month period to open and close the case. Thus you can expect about a year – if all heirs agree. This is under the ideal and most simple circumstances, however. A ballpark estimate is that probate usually takes 14 months to 2 years, but it can take much longer. 

So, what affects how long the probate process takes? Delays can be caused by several factors:

A Complicated Tax Situation

Tax returns need to be filed by the appointed personal representative of the estate. A final personal tax return should be filed and if the estate had an income over $600 for the time period, the representative will need to file an estate tax return. Estate tax returns or IRS form 706 takes 3-4 months for the IRS to process after filing. It can take several months after that for the return to be reviewed. This is the federal estate tax return, but state level returns can take just as long. 

Assets That Need To Be Sold

Assets left by a decedent that must pass through the probate court can take time to be administered. This can be challenging depending on if a person died intestate or with a valid will in place. If a person dies intestate, the court may order assets be sold and the profits be distributed to heirs. Assets include real estate and personal items of value. The sale of real estate usually occurs to pay off creditors before the remaining estate can be distributed. This causes delays in the probate process.

A house being sold in the probate process

Creditors Seeking Repayment

When a decedent passes, it is the responsibility of the court and the trustee or executor of the will to notify creditors of the death. A creditor has 6 months after the court issues letters of office and notice is published to file a claim. If notice is not published, they may have up to 2 years to file a claim. (Trusts are outside of probate)

Lawsuits Against An Estate

Claims against an estate, whether from creditors or potential inheritors can cause delay. Cases can drag on for months to years. Some have even been known to drag on for decades. There’s something called a derivative lawsuit. This is where a personal representative of the estate can file a suit against a third party who caused injury or harm to the decedent and their estate. This is sometimes necessary and can prolong probate. 

A judges gavel on a table before he handles a probate hearing

Difficulty Finding Inheritors

All heirs must be notified upon the decedent’s passing. The personal representative or executor of the estate is responsible for putting out notice publicly so all heirs can come forward. When an heir cannot be found, the representative is in charge of searching for and locating the missing person. If the person is still not found, the inheritance is held in a trust for a set amount of time and can be upwards of 20 years before passing to the next heir in line. This can add up over time and really slow down the process. 

If you live in the Chicago area and have questions about the probate process, contact an experienced attorney at Schottler & Associates.