Q: How long does probate take after death. What happens when there is a morgage?
Dear Castro Valley:
How long does Probate take after death? Well that depends on the complexity of the estate. A simple estate should be in a condition to wrap up and do final distributions somewhere six to nine months after the appointment of the personal representative. (Administrator or Executor).
But if an estate is complex, it can take years. What makes an estate complex? The Decedent held a large number of assets, particularly if some are stocks not held in a brokerage account. A tenant living in estate property that must be evicted (or worse yet, and heir to the estate.) Challenges to a will (will contests.) Beneficiaries who cannot agree on who should be in charge. Disagreement between co-representatives, if more than one person is appointed as the representative. And the list goes on.
What happens when there is a mortgage? Again this depends on the particular estate. First off, mortgages are excused from the creditor's claim requirements and time limits (they "attach" to the property itself.) So, death will not end the mortgage.
If the mortgage is not paid during administration (and nothing requires a representative to go out-of-pocket for estate costs) the bank will eventually foreclose. Some banks are willing to forgo foreclosure if the representative is actively marketing the property for sale.
However, in some cases some or all of the heirs wish to "purchase" the home from the estate. In this case there are state and federal laws that require lenders to facilitate the new owner acquiring the mortgage responsibility. (You still have to qualify with the lender though).
I recommend that you discuss the exact facts of your situation with a qualified attorney. While probates may be similar, no two are exactly the same. An attorney can give you a good idea of timing, costs, and even if probate is required in an initial consultation. If you do not know where to find an attorney, try your local county bar association. Most county bar associations operate a lawyer referral service where, for a small or no fee, you receive a consultation with an attorney in the area of law you need.
A: How long a probate administration takes to complete depends on how complex the assets are, how difficult it is to gather them into the estate, whether there are any creditors who have claims against the estate and whether those claims turn into litigation to resolve, and a number of other factors. A simple probate will usually take 12 months or so to resolve, in part due to the logistics required for filing petitions, providing adequate notice, and addressing creditor claims. Many courts are backlogged, however, so the actual amount of time it takes to complete a probate administration can be longer. When there is a mortgage on real property, generally the debt transfers with the property and the beneficiaries are responsible for paying it (or working out a new loan with a lender). If the property is sold during probate, then the mortgage debt is paid off at that time. You should consult with an experienced probate lawyer near you for specific advice on your situation.
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