Many Massachusetts residents are put in a difficult position after a loved one dies. Not only must they face their grief, but they also suddenly have the responsibility of settling their loved one’s estate. For those who are not familiar with the process of probate, the experience can be overwhelming.
One of the first questions they may have is whether everything their loved one owned must go through probate. The short answer to this question is no, not necessarily. But much of what the person owned will likely have to go through probate.
Introduction to probate
Before discussing what can escape probate, let’s go over the basics. When a person dies, all their property — assets and debts — becomes known as their estate. To settle the estate, someone must pay off any remaining debts (such as taxes) and distribute the assets to the heirs of the deceased. This process is overseen by a probate court.
If the person left a valid will, the will appoints a person as executor or personal representative and gives instructions on how to distribute the assets in the estate. These instructions are legally binding. Other interested parties may contest the will, but if the court finds the will is valid, then the personal representative must distribute the assets as the deceased intended.
If the person did not leave a valid will, then the probate court appoints a personal representative. This person is commonly a surviving spouse, but can also be an adult offspring or another relative.
What’s in the estate, and what’s not
One way to explain what is in an estate is to start by saying what is not in an estate. Any property that legally transfers to someone else’s ownership upon the person’s death is not part of the estate. This can include:
- Property held in trust
- Life insurance proceeds or a retirement account which has a named beneficiary
- Jointly owned property with a right of survivorship
If the property does not legally transfer to someone else upon the person’s death, then it is considered part of the estate.
Is going through probate so bad?
Estate planning attorneys often discuss ways to let property avoid probate. This is because probate tends to take a while — up to three years. It can also cost a fair amount of money. The funds come out of the estate itself, meaning that there’s less to distribute to the heirs.
For personal representatives, the probate process can also be frustrating. There’s a lot of paperwork to complete and deadlines to keep track of.
Fortunately, they don’t have to do it all on their own. Attorneys with experience in estate administration help personal representatives through the process.