BURNER PRUDENTI: Why Does Probate Take So Long?

Q: I am the nominated Executor of an Estate, but I don’t know how long the process takes. What factors affect the length of a probate proceeding in Surrogate’s Court?

A: If you are named as Executor of a loved one’s estate, you will need to go through a Surrogate’s Court process known as “probate” in order to collect and distribute the deceased person’s assets.

“Probate,” which comes from a Latin word meaning “to prove,” is the process of proving that a deceased person’s Last Will and Testament is genuine. Before you are able to act with any legal authority as the Executor, you will need to go through the probate process to prove that the Will is valid.

You may have heard that probate is an extensive process fraught with delays, but this is not always the case. There are many different circumstances that affect the length of a Surrogate’s Court proceeding, and no two estates are alike. Understanding your circumstances with the help of your chosen estates counsel will allow you to set your expectations for the process accordingly.

First and foremost, you should consider the volume of cases that each county receives. Courts in densely populated counties like New York, Kings and Queens often have a longer turnaround time than those situated outside of the boroughs, simply due to the number of estate proceedings they receive in a given period of time. Staffing shortages and heavy backlogs are important factors that affect how long a matter remains pending in Surrogate’s Court.

However, you cannot pick and choose which court to file the proceeding in. You will always need to file in the county where the deceased person resided before their passing.

Another common cause for delay comes from the interested parties in the proceeding. Even if they are not named in the Will or are disinherited, the Surrogate’s Court requires all next of kin—the “interested parties”—to receive formal notice of the court matter.

If all of these parties are agreeable, each can sign a document called a “Waiver and Consent,” which expedites the proceeding. However, if a required party does not sign this waiver, the court must issue a citation, which extends the length of the proceeding.

A larger hurdle still arises when the family tree is complex and the closest living relatives are at the aunt, uncle or first-cousin level. Since all next of kin must be notified, there are often cases where the closest living relatives are unknown and must be identified through due diligence.

In situations where this is impossible, the court requires publication in a newspaper, which can further extend the length of time your proceeding can take.

Finally, in cases where the Will is contested or challenged, the matter shifts to litigation, which significantly extends the timeframe. In cases where the deceased person executed multiple Wills during their lifetime, or their capacity comes into question, a standard probate proceeding can extend for years as the court attempts to make a determination in the matter.

Many of these factors are outside of an individual Executor’s control. However, understanding your circumstances with an experienced estates attorney can prevent unnecessary delays in the Surrogate’s Court process and allow you to stay informed.

About the Author

Frank Oswald, Esq. is an associate attorney at Burner Prudenti Law, P.C., focusing his practice on Trusts and Estates. Burner Prudenti Law, P.C. serves clients from New York City to the East End of Long Island, with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.

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