Chapter 3 – Why 7 months and not 6 or 8?
When I started practicing law in the mid 1990’s I said probate should take about six months. I had a fancy chart that looked something like this below. In fact, when I first put up my first probate website (palley.com), in December 1996, I started talking about this concept of the six month probate.
[INSERT 6 month probate chart]
As shown on the chart it was four weeks until the first Court date, then the four month probate period and then four weeks until the final Court date and distribution. In total about six months start to finish. However, as time has gone on and budgets have been cut it’s been harder and harder to get court dates only four weeks out. You should pay attention to the dates in your case to make sure your attorney is treating your case with the urgency it deserves because not all attorneys are efficient with the probate process.
A court date six weeks out is the new norm and sometimes they are eight, or MORE, weeks out. I thus now say seven months but I don’t say it with as great of confidence as I did almost twenty years ago. Instead I say it should take seven months if everything is done exactly right. I said it then, and I say it now, mistakes, oversights, and delays can cause probate to go on well beyond this time period! A 7 month probate is still obtainable in California and as demonstrated in the below chart and is the ideal and most realistic probate timeframe at the current time.
[INSERT 7 month probate chart]
Sometimes, as mentioned above, due to court budget cuts an 8 month probate is not unusual in some counties. In fact, in one or two large counties a 9 or 10 month probate is common. Here is an illustrative example of an 8 month probate which is extended simply due to the inability to get a quicker court date.
[Insert 8 month chart]
Eight months isn’t horrible of course. It’s still efficient. However, if things are done wrong then delays happen. When delays happen… the probate process gets long and it gets long in a hurry. Historically courts often gave four week delays if a matter wasn’t properly prepared for the Judge’s review. As time has gone on that four week delay has turned to 6, 8, 10 and most recently in Sacramento county TWELVE WEEK DELAYS. That means if you do something wrong in your initial petition for letters at your first court date the Judge will delay you three months until another court date. If you don’t get it right then you’ll receive another 12 weeks. At that point you are still at square 1, ground zero, and probably mad you didn’t hire an expert probate attorney to represent you! Here’s a sample probate with two 3 month delays and what the timeline looks like.
[INSERT chart with delays]
As you can see above that is something to avoid. When a probate takes over a year you can understand why people talk about probate with such disdain. Over a year of dealing with your loved one’s affairs. Over a year of filing and re-filing documents at the courthouse. Lastly, and quite simply, over a year before which you can close out the loved one’s estate and move on with life.
PRACTICE TIP: Your lawyer might not know but you can demand the Court set your first hearing within 30 days to start your probate. See California Probate Code 8003:
8003. (a) The hearing on the petition shall be set for a day not
less than 15 nor more than 30 days after the petition is filed. At
the request of the petitioner made at the time the petition is filed,
the hearing on the petition shall be set for a day not less than 30
nor more than 45 days after the petition is filed. The court may not
shorten the time for giving the notice of hearing under this section.
(b) The petitioner shall serve and publish notice of the hearing
in the manner prescribed in Chapter 2 (commencing with Section 8100).
COVID UPDATE: It should be noted that with the current COVID-19 crisis going on 9 or 10 or 11 months may be the norm even for efficient probate attorneys. Due to the court closures we have lost some control. However, can you imagine how long it might take the inefficient attorneys now!? Yikes!