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Can Writing a Will Help My Family Avoid Probate?


It's never easy to confront the reality of our mortality, and it is often even more challenging to discuss these matters with our loved ones. However, making arrangements for what happens to our assets after our departure is a significant act of love and responsibility. It's an effort to provide comfort and ease for those we leave behind and avoid adding legal complications to their mourning. Writing a will can be an essential step in protecting our family's interests, but it is often not enough to help your family avoid probate.

Understanding Probate

Probate is a legal process after a person's death, where their estate is administered and distributed under the court's supervision. This process includes validating the deceased's will if one exists, appraising the deceased's property, paying off any debts, and distributing the remaining assets to the designated beneficiaries.

Although writing a will can provide guidance for the distribution of your assets and the care of any minor children, it does not necessarily mean that your family will avoid probate. In Massachusetts, if the value of your assets exceeds $25,000, your will must go through probate. Instead, there are other estate planning tools that can help your family sidestep the probate process.

The Role of a Will in the Probate Process

In the probate process, a will plays a crucial role. It is the legal document where you express your wishes about how your property should be distributed after your death. Wills can also outline who you'd like to name as the guardian for your minor children. However, the will must be validated by the court through the probate process, which can lead to delays and potentially high legal costs.

Here are a few examples of how this process can be difficult:

  • Legal fees: The legal costs can be significant, often a percentage of the total estate value.
  • Time-consuming: The process can take months, if not years, to fully resolve.
  • Public Record: Probate proceedings are public, which means your estate's details will be available for anyone to access.

However, there are other estate planning tools to consider that can help your family avoid probate. A living trust, for example, allows your assets to bypass the probate process entirely, providing a smoother and more private transfer of assets. Other options include designating beneficiaries on your accounts, owning property jointly, or gifting assets while you're still alive. Each of these strategies has pros and cons, and the best approach depends on your circumstances and goals. Consulting with a knowledgeable attorney can help you understand your options and make the best decision for your family.

Exploring Alternatives: Trusts and Joint Ownership

Trusts serve as a popular alternative to wills and can aid in avoiding the probate process. When you create a trust, you're effectively transferring ownership of your assets to the trust. You can serve as the trustee and maintain control of the assets during your lifetime. Upon your death, a successor trustee – who you've named in the trust document – takes over management of the trust assets and distributes them to your named beneficiaries according to the trust’s terms. This process is generally quicker, less costly, and more private than probate.

There are several types of trusts, each with its own set of advantages and potential drawbacks.

Here are a few examples:

  • Revocable living trusts: This type of trust can be changed or revoked entirely during your lifetime. Assets in the trust bypass probate but are still subject to estate taxes.
  • Irrevocable trusts: Unlike revocable trusts, you relinquish control of assets placed into an irrevocable trust. These trusts can provide asset protection and tax advantages but require you to give up control during your lifetime.
  • Charitable trusts: These trusts allow you to provide a benefit to a particular charity and receive tax benefits.

Joint ownership of property is another way to avoid probate. With this arrangement, if one owner dies, full ownership automatically transfers to the surviving owner. It's important to note that there are different types of joint ownership, such as joint tenancy and tenancy by the entirety, each with its own requirements and consequences.

Consequences of Dying Without a Will

Dying without a will, known as dying "intestate," entails a series of legal repercussions. In this scenario, rather than your wishes guiding the distribution of your assets, state laws of intestacy will decide. These laws typically distribute property to the decedent's closest relatives, but the specific order and proportion depend on the laws in the decedent's state of residence. For many families, the distribution under intestacy laws may not align with the deceased's wishes, potentially leading to familial disputes and legal complications.

Moreover, without a will, the court will appoint an administrator for your estate, who may not necessarily be someone you would have chosen. The administrator will be responsible for managing your assets during the probate process, including paying off any debts and taxes and distributing the remaining assets according to the intestacy laws. This process can be time-consuming, expensive, and stressful for your loved ones.

How We Can Help

At Percy Law Group, PC, we pride ourselves on our deep knowledge of estate planning and our commitment to assisting families in making the best decisions for their unique circumstances. Our team of experienced attorneys understands the intricacies of Massachusetts probate laws and can guide you through your options, helping you develop a comprehensive estate plan that aligns with your wishes, protects your assets, and provides peace of mind for you and your loved ones.

We understand that every family's situation is unique. Whether you're considering creating a will, establishing a trust, or exploring other estate planning tools, we are here to provide the personalized guidance you need. Our attorneys are adept at navigating the complex landscape of estate law, providing clarity and offering solutions tailored to your specific needs and objectives.

With the Percy Law Group, PC, you can navigate your estate planning journey with confidence, knowing you're making informed decisions that protect your loved ones' future. Don't leave your family's financial security to chance.

Reach out online or call us at (508) 206-9900 to schedule a consultation and take the first step toward creating a comprehensive, effective estate plan.

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