You have probably heard from friends or relatives who’ve gone through it. Probate is a time-consuming, expensive, and very public process. Not to mention it can sometimes be unpleasant. Anyone, especially your children’s ex-spouses and creditors, can see many private things about you, such as personal information, your finances, including your debts, the value of your assets, and who will be receiving your inheritance.
Given these issues, many clients ask,
“Must all my assets pass through probate before my family benefits from my hard-earned savings?”
The short answer is “It depends on how each asset is titled”. Massachusetts probate law requires any asset that is owned by the decedent at the time of their death to go through the probate process to change ownership. However, assets that are jointly owned with rights of survivorship, titled in a trust, or have a beneficiary designation will not need to go through probate.
The first thing we look at is how an asset is held (titled). Assets which generally need to pass through probate include:
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Real estate
- if the deed is in the decedent’s name alone or titled jointly as tenants in common without rights of survivorship
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Insurance policies
If the estate is named as the beneficiary or the named beneficiary has predeceased the insured. Sometimes we come across policies that don’t have a named beneficiary at all.
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Retirement accounts
If the estate is named as the beneficiary, you fail to name a beneficiary at all, or the beneficiary has predeceased you and there is no secondary beneficiary named (contingent).
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Bank accounts, securities, and other financial instruments
If there are no named beneficiaries (often referred to as a “payable on death” beneficiary)
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Personal property
Such as, jewelry, furniture, valuable collections not in a trust
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Financial assets held by the Massachusetts State Treasurer’s Unclaimed Property Division
Often listed on the website, findmassmoney.com. The State Treasurer’s Office will require an appointment from the probate court before releasing the funds.
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Refunds made to the decedent after death
Nursing Home, health insurance premiums and tax refunds are just a few examples.
When working with a competent estate planning attorney, you will find there are several ways to pass assets without probate. This would include strategies such as creating a trust to hold the assets, having the asset jointly owned so that its ownership will pass to your surviving spouse or joint owner, or including named beneficiaries such as, “payable on death” or “transfer on death” for you bank and investment accounts.
If probate is required or you would like to explore putting a plan in place to avoid it, contact our skilled probate and estate planning attorneys at Generations Law Group. Founded by a nurse attorney and with offices in Acton, Andover, and Sudbury, Massachusetts, Generations Law Group helps families navigate the complex areas of estate planning and elder law to inform and protect loved ones of every generation.
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