Do you really need to avoid probate?

On Behalf of | Feb 22, 2023 | probate

Some estate planning tools are designed to help assets avoid probate. Because of this, many people who are unfamiliar with the probate process may get the impression that probate is a bad thing, to be avoided at all costs. That isn’t the case.

In fact, probate is a necessary process under Massachusetts law, and it isn’t necessarily bad, expensive, time-consuming or difficult. In this blog post, we will discuss some of the basic information about probate that every Massachusetts resident should know.

Probate and the personal representative

Put simply, probate is the legal process that oversees how a deceased person’s property is distributed after their death. If the person left behind a valid will, that will dictates who will get what. If the person did not leave behind a valid will, then their estate is distributed according to a somewhat complicated formula under state law.

Typically, one person is in charge of administrating the estate. This person is appointed by the court and known as the personal representative or executor.

If the deceased chose a personal representative in their will, the court typically appoints that person. If the deceased did not leave a will, the court typically appoints the deceased’s surviving spouse (if any) or surviving heirs.

However they are appointed, the personal representative has a duty to settle the estate, generally within three years of the death. This may include paying any remaining debts and taxes, inventorying the estate, tracking down heirs and distributing the assets.

Note that for cases in which the deceased did not have a lot of assets, a personal representative can request a streamlined process known as a voluntary admission. This form of probate can be resolved in as few as seven days.

Why all the talk about avoiding probate?

You may have read all the above and wondered why you have heard so much talk about avoiding probate. The answer is that, while an estate may not be able to avoid the probate process altogether, careful estate planning can help some types of assets sidestep the probate process.

For example, if the deceased owned a home jointly with their spouse, the surviving spouse becomes the sole owner of the home, and the home does not have to be counted among the assets in the probate process. Likewise, assets held in a trust are not considered part of a deceased person’s estate. This means that, upon the person’s death, the designated people or organizations become the beneficiaries of the trust.

The two biggest advantages to avoiding probate involve time and money. Settling an estate can take time, but sometimes the heirs can’t wait to sort out issues such as the ownership of a home. On top of that, the legal fees associated with probate come out of the estate, leaving less to go around when it comes time to distribute the estate to the heirs. Assets that are not part of the estate are not subject to these probate costs.