How Soon is Too Soon for Probate?

It is almost never too soon to apply for probate.

That said, probate is usually not urgent and is not something you can or should rush into immediately after the death of a loved one.

The first issue is determining whether there is any need to probate.  This will depend what assets the deceased owned and the nature of the ownership.  Title searches for real estate may be required.

If probate will be required, the next issue is determining whether or not the deceased made a Will, as this will affect all aspects of the probate process: probate with a Will is different from probate with no Will.

If probate will be required, the person considering applying for probate should gather reasonably accurate values of the estate assets.  However, this is not an effort for perfection – what is required is to make best efforts to obtain reasonably accurate values at this time.  Formal appraisals are often not required, and sometimes it is impossible to get the value of an asset before probate. It is acceptable to proceed on reasonable estimates.

How late is too late for probate?

With a Will.

There is no fixed time for an executor to apply for probate.  However, an executor named in a Will should apply for probate ‘in a reasonable period of time’.  As a general rule, it should take ‘weeks, perhaps a few months’ after the death to grieve and then gather the necessary information to apply for probate.  It is rarely reasonable to take more than a year before applying for probate.

No Will

When there is no Will, often no one steps forward.  This is a mistake.  While the law sets out a presumed priority for the closest next of kin, this is not cast in stone – the Court retains discretion to appoint the most suitable person as the estate trustee.  Beneficiaries should not consent to an application by a next of kin who they believe is untrustworthy or incapable of administering the estate properly in a timely manner.  Often, someone who delays a long time before applying for probate has clearly signaled that they are not the right person to act as the estate trustee.

Probate without a Will can be very complex. It is best to get experienced professional advice as early as possible in the process.

Miltons Estate Law – Probate and Estates Law