Estate planning involves protecting one’s finances and assets through legal documentation such as wills, trusts, and Power of Attorneys. Though you may not think you should be concerned with such things since estate planning is usually associated with the affluent and the elderly, it can benefit anyone who possesses significant assets. Our Massachusetts probate law attorneys explain what probate is, how the process works, and what you can do to avoid it.
What is Probate?
Probate is a legal process that takes place after an individual passes away. The purpose of probate is to verify that the deceased individual’s will is legal and that their intentions are carried out the way that they intended.
Probate may also occur if an individual dies and leaves behind no will. In such cases, it is up to a probate court to decide how to distribute the assets belonging to the deceased person’s estate to the loved ones they left behind.
What Happens During Probate?
During probate, the decedent’s assets will be given away to their descendants and other beneficiaries per the former’s wishes. If no one has already been appointed to the role, someone must apply to act as the personal representative or administrator of the estate. That individual will oversee several tasks and must document each step of the process.
The general steps of the probate process are as follows:
- Acquire the deceased’s death certificate
- Petition the court to become an personal representative or administrator of the estate
- Notify all creditors, beneficiaries, and heirs that the estate is in probate
- Collect, inventory, and appraise all assets subject to probate, such as bank accounts and real estate
- Pay off all debts, taxes, and other expenses owed
- Distribute the remaining assets to beneficiaries
- Close the estate with the court
For small estates, probate won’t take very long—perhaps several weeks or months. However, the probate process for larger estates can take years. To avoid probate becoming along and contentious process, there are some things you can do.
How Can I Avoid Probate?
In some cases, you may not have to go to probate court. Having a revocable living trust can protect you from probate, as the assets and property in the trust will be automatically distributed to named beneficiaries. Furthermore, the proceeds of a life insurance policy will not need to go through probate if there are clear beneficiaries listed, and the same applies to retirement accounts and other financial assets. By naming beneficiaries and not having all assets and property dependent on a will, you can avoid the probate process and settle the estate in a quick and relatively simple manner. If there is no will, probate will likely be required to determine the division of property and assets among creditors and heirs.
Having a will doesn’t necessarily help to avoid probate. When someone dies, their assets become part of their estate—unless those assets are co-owned by someone such as a spouse. However, anyone with a valid claim to any of the deceased’s assets may contest the will or file a petition with the local probate court, which can drag out the process. Furthermore, if debts need to be settled with creditors, or the title of certain real estate or personal property accounts need to be transferred that don’t already have a right of survivorship, you will still need to file probate.
This doesn’t mean a will is unnecessary, however. If the decedent left a will, a probate judge will look it over to determine its legality. Once that has been established, beneficiaries have the option to contest it. If the deceased person did not leave a will, they are considered to have died “intestate.” Determining the rightful heirs of the decedent’s estate will then fall to the court, though its decision can also be contested.
So, having a will can help to avoid—or at least streamline—the probate process. Hiring a will attorney to help you create and notarize the document will help it stand up in court all the better. If the value of your estate is higher than a certain amount, however, your assets will have to be probated whether you had a will or not.
Probate is a costly and timely process. Whether you should spend your time and effort planning to avoid probate does depend on factors such as your age, health, and wealth. If you are young, in good health, and don’t own much, you may want to consult with a lawyer to see if the process is right for you. However, if you are in your 50s or older, in poor health, and/or own a significant amount of property and wealth, we recommend you put a legal plan in place to avoid probate.