Is there a time limit on starting a probate?

Attorney Tom Olsen: We got a text question here. Chrissy, why don't you read that out for us?

Attorney Chris Merrill: Yes. The texter says, "My husband of 30 years died in December 2020." Just this past December, first of all, our deepest sympathies to you, we're very, very sorry. The question is, "Is there a time limit on starting a probate on his estate?"

Attorney Tom Olsen: The answer is no. You can do that probate estate next week, next month, next year, five years from now, but let me qualify that a little bit. If your husband died owning not the home, let's say that he's got a vacant lot somewhere in his name only that lot is locked up, you will not be able to sell it or refinance it or do anything with it until the probate is done. Okay. If your husband died with an asset in his own name, just to understand that is going to be locked up and it's not going anywhere until the probate is done. Time is not going to change that fact, that probate is needed.

Number two, occasionally, Chris, I get a phone call that goes like this, Tom, my dad has passed away. He named my sister's the executor. He died a year ago. She's not doing anything. Why should I be waiting around for my sister to do a probate, this is her job, she was named the executor? Well, what I tell that caller is yes, she was nominated to be the executor but any interested party can go start that probate process. If the sister is throwing up her hand saying, "I don't care, I'll wait. There's no hurry for me. Dad died with money in the bank, I'm well off. I don't need anything. I'll just wait and take my time. Do it when I want to."

Well, maybe the other siblings don't feel that way, sister. With that said, even though she's nominated to be the executor and take care of the estate, if she's not doing that then any of the other beneficiaries can start that probate process.

Attorney Chris Merrill: I think that's important for people to know that because Tom, you're right, that is a common question that there's one sibling that's in charge, but they have not done anything for whatever the reasons, but any interested party can start that process. In this situation, of course, it's very likely that the widow here, they owned everything jointly, and so it's possible that there would not have to be a probate.

Attorney Tom Olsen: That's what we tell people. Most married couples own everything jointly. That means when one of them passes away, the survivor automatically owns it at all. No headaches, no hassles, no probate.

Attorney Chris Merrill: Exactly.

Attorney Tom Olsen: She says probate for husband's estate. Typically, that's not required unless he happened to die with an asset in his name only like a bank account or a piece of property.

Attorney Chris Merrill: Exactly where he forgot to name his wife as the beneficiary. Once in a while, that does happen, and certainly, we do probates for that reason, but for the most part, married couples, that will not happen when one passes, typically the surviving spouse will not have to do a probate.