The loss of a loved one is one of the most difficult things to go through in life. After the grief subsides, deciding if the person’s estate must be probated is confusing, time consuming and expensive. Avoiding probate will move the estate distribution much faster to the heirs, so many often wonder if probate is even necessary.
What is Probate?
Probate is the legal term for the process that occurs after a person dies. In Massachusetts, the probate court must first validate that the Last Will and Testament (the “Will”) is authentic. Next, the Personal Representative (formerly known as Executor or Executrix) named in the Will receives authority to act by the Court. Once the authority is received, the Personal Representative may gather assets, pay all legitimate expenses of the estate, and finally, distribute the remaining estate to the devisees (those named in the Will). When a person leaves no Will (called dying “intestate”), the probate court must decide, according to the intestate laws of Massachusetts, who gets what from the estate.
Probate is an expensive process, and by statute, the estate must be open for one year to allow creditors to file any claims against the estate. Depending on how complicated the estate is and if there is harmony in the family, it can take anywhere from a year to several years to complete the probate and for loved ones to receive their full inheritance.
Is Probate Necessary?
Not all estates need to go through probate. To determine if probate is going to be required, one first needs to classify the assets owned by the decedent at the time of death as either “probate assets” or “non-probate assets”.
Any assets classified as “probate assets” must go through the probate process. Probate assets are assets that are titled solely in the decedent’s name without some form of beneficial designation. As a rule of thumb, if there is no one listed as the beneficiary or joint owner, the asset must be probated. Some examples of assets that cannot avoid probate include:
- Personal items in a home, such as furniture, artwork or other personal property unless held in a trust
- Any real estate or cars (Massachusetts does allow a surviving spouse to transfer a vehicle’s title) solely in the decedent’s name
- Any accounts with no listed beneficiary.
Assets that are classified as “non-probate assets” will pass outside the probate process. Non-probate assets are those owned jointly with another owner or those that have a named beneficiary. Some examples of this type of asset include the following:
- Bank accounts with a payable-on-death or transfer-on-death designation
- Life insurance policy with a named beneficiary
- Assets owned jointly, such as a home with a surviving co-owner
- Retirement or 401 savings with a named beneficiary
- Assets in a living trust
In each of these examples, another person is named as the person who will receive the assets. By operation of law, that person will receive the asset after the owner dies. In the case of jointly owned property, the surviving owner automatically becomes the sole owner.
Assets in a trust
In almost all circumstances, assets in a trust avoid probate. One of the most common types of trust is a Living Trust. To determine how assets should be administered and who will be responsible for handling these tasks, you will need to read and understand the trust completely. The trust will provide you with the necessary instructions on how to proceed. See our eBook, “How a Trust Can Help You and Your Family” for more information.
It’s possible to avoid probate completely by planning accordingly. Working with an experienced estate planning attorney is critical in finding the most appropriate method to avoid probate and to ensure your assets go where you intend.
Founded by a nurse attorney and with offices in Acton, Burlington, and Sudbury, Massachusetts, Generations Law Group helps families navigate the complex areas of estate planning, elder law, and probate to inform and protect loved ones of every generation. Download one of our eBook resources for more information on navigating through the death of a loved one, and more.