Probate is a time-consuming, tedious process that often tests the nerves of many family members. By Massachusetts statute, a probate case must be kept open for twelve months to allow creditors to file any claims against the estate and before final distributions should be made to the heirs. The good news is that not all estates must go through probate.
Certain factors determine whether probate is necessary. As probate attorneys, one of the first things we look at is the type of asset that was owned by the decedent and how it is titled. Other items to consider are whether there are joint owners or beneficiaries and the dollar amount of the asset. Some assets pass directly to the beneficiaries by operation of law and avoid probate altogether. Other assets, such as those titled solely in the decedent’s name, may need to go through probate.
Assets that do not need to go through the probate court
Probate is a court-supervised process that handles the distribution of a person’s assets after paying all legitimate expenses of the estate. Some examples of assets that would not need to go through probate are as follows:
- Jointly held assets – The most common example are bank accounts. If an asset (other than real estate) is in the name of more than one person, that asset will automatically pass to the joint account holder upon the passing of the other joint holder. If spouses hold real estate as a married couple (tenants by the entirety), the surviving spouse automatic takes title. Also, if the real estate is held with another and specifically states “right of survivorship” then it will pass to the other owner automatically.
- Assets with a beneficiary designation – Retirement plans and life insurance typically will have a beneficiary designation. These assets will pass outside of probate and go directly to the named beneficiary.
- Assets that include a payable-on-death (POD) or transfer-on-death (TOD) provision – Many bank and investment accounts allow you to designate a payable-on-death or transfer-on-death beneficiary. Upon your death, this account will pass to the named POD or TOD automatically.
- Assets held in trust – When assets are placed in a trust, legal ownership is retained by the trust. Distribution of the trust assets after the passing of the person who created the trust will be determined by the trust instructions, not the probate court. Assets will immediately be accessible to the named Trustee without the need to probate these assets.
Does a vehicle need to go through probate?
Transferring a vehicle outside of probate is much easier if there is a surviving spouse. By statute and upon application, the Massachusetts Registry of Motor Vehicles will issue a new title in the surviving spouse’s name. A title in the surviving spouse’s name is necessary if the intention is to sell the vehicle or transfer ownership to a loved one. If there is no surviving spouse, then probate would be necessary to transfer the vehicle.
Small estates
Even if an estate contains probate assets, you might be surprised to learn you may not need to go through a full formal probate. If the value of the decedent’s estate is less than $25,000 and does not contain any real property, than a limited version of probate called Voluntary Administration may qualify. When counting the total assets, the non-probate assets listed above are not included in the total value. A voluntary administration is a much quicker, simpler process and may not require the services of an attorney.
How to decide
The probate procedure in Massachusetts is often very challenging, time-consuming, and complicated to the surviving family members. The best course is to try to avoid it and to have your assets in trust or pass “outside of probate”. Consulting with an estate planning attorney well in advance can help you create a plan for your estate to avoid probate. If an estate must go through probate, enlisting the advice of an experienced probate attorney to guide you.
Generations Law Group is located in the MetroWest Boston area and serves many clients remotely.
Contact us to have one of our experienced estate planning and probate attorneys guide you through the process.
Contact Us
