You leave behind a lifetime of possessions when you die, from real estate to stocks and bonds, furniture and clothing, and all the other assets you have accumulated over the decades. This accumulation of assets is your estate. If you are like most people, you intend for specific assets to go to specific loved ones when you die. Even when you do not have a plan, the state has one for you. Whether you have put an estate plan in place or die intestate (without a Last Will and Testament or other estate plan) your estate may need to be probated. The probate process ensures the appropriate and timely distribution of your estate to your heirs. At Priority Law, our estate planning attorneys are experienced with probate and may be able to help you navigate the process with more ease than trying to figure it out on your own. Call (978) 935-2000 to schedule a consultation and learn more about your probate options, or even how to avoid it completely.

What Is Probate?

According to the Commonwealth of Massachusetts, probate is the process of transferring ownership and property after someone dies. What goes through probate depends on how the decedent’s property is titled or owned when they die. Jointly held property with right of survivorship, property held in a trust, or proceeds from life insurance, bank, or retirement accounts with named beneficiaries are examples of assets that do not need to be probated. 

The probate process must be done if the will needs to be validated, if ownership of real estate or personal property needs to be changed, if the decedent had creditors that need to be paid, and to get the decedent’s medical records or to file their tax returns and pay taxes. Probate has to be done within three years of the decedent’s death, unless it is a voluntary administration, determining heirs, or an ancillary (additional) probate proceeding. 

How Probate Works

The Commonwealth of Massachusetts has four types of probate, three of which are more commonly used. The probate process is relatively straightforward, but there are some differences depending on whether the individual died with or without a will. Depending on the size of the estate, the process takes approximately nine to twelve months. Without a will, the process may take longer. 

Probate With a Will

Informal probate requires the original will, an official copy of the death certificate, and a person to be appointed personal representative with priority of appointment. Additionally, the names and locations of all heirs and devisees must be known, the court cannot require a supervised administration, and any spouses, heirs, or devisees who are minors or incapacitated have a guardian or conservator to represent them who is not the person filing the probate. Finally, the estate must not require a judge to sign an order or final decree for anything. 

A formal probate is required if any one of the informal requirements is not met, or if someone objects to an informal probate. If the will has handwritten words added or deleted, the terms of the will are not clear, the court must appoint a Special Personal Representative, the petitioner is a creditor or public administrator, or the judge needs to sign any order or final decree, formal probate is required. A voluntary administration may be allowed for small estates made up of only personal property worth $25,000 or less (minus the value of a car). Voluntary administrations are simplified probate. Additional requirements for a voluntary administration include that the decedent passed at least 30 days prior, there is no other probate proceeding pending, and the petitioner is an interested person. 

Probate Without a Will

Probate is still required to transfer property to heirs even when the individual dies without a will. The court oversees the distribution of property to the decedent’s rightful heirs based on Massachusetts Uniform Probate Code (G. L. c. 190B). This law determines which heirs get the estate, and may not be how the decedent would have wanted their property distributed. Priority Law urges clients and potential clients to write a will, at a minimum, to avoid having the state distribute your property. 

In an intestate probate, the court appoints a personal representative, who manages the estate and ensures that any debts and taxes are paid before distributing the assets. Intestate succession laws do not affect any assets that are not subject to probate. 

Is Probate Always Required?

Probate is not always required. Small estates of less than $25,000 in assets with no real property can go through the more limited voluntary administration instead of an informal or formal probate. 

Additionally, if the estate is held entirely in trust, made up solely of assets that pass outside of probate, or a combination of those, it may be possible to avoid probate. If you are curious as to how your estate can avoid probate, consider visiting with our experienced estate planning attorneys at Priority Law. 

How Much Does Probate Cost?

Massachusetts Probate and Family Court charges various probate fees. The exact fees an individual will need to pay will depend on the size and complexity of the estate being probated, whether the estate plan is classified as valid, whether the will is being contested, and whether they hire a probate lawyer to assist them with the probate process. The average cost of a Massachusetts probate is approximately $1,500 to $2,000. 

How Can I Avoid Probate?

Depending on the assets an individual has and other factors, it may not be possible to avoid probate entirely. However, there are some estate planning options individuals may be able to take that might minimize probate and possibly eliminate it entirely. 

Living Trust

Many people are familiar with trusts. By placing assets in a trust and naming one or more beneficiaries, individuals can avoid those assets being probated. When these assets are placed in the trust, they are no longer owned by the individual who created the trust (the grantor). Instead, the trust owns them and the grantor names themselves as trustee and administers the trust for their benefit. When the grantor dies and the successor trustee takes over, the assets are distributed to the trust’s beneficiaries per the terms of the trust. 

Individuals should be aware that some assets cannot be placed in a trust, which means they may still need to go through probate unless another option applies. Therefore, they may still need a will that must be probated. 

Joint Tenancy With Rights of Survivorship 

Real estate, motor vehicles, and certain other assets that have a deed, title, or other paperwork showing ownership can be owned jointly with rights of survivorship to avoid probate. This is most commonly seen when married couples own their home together. When one spouse dies, the surviving spouse immediately and automatically becomes sole owner of the home. However, individuals do not have to be married or even related to jointly own an asset with rights of survivorship. They must both be listed as owners and share equal ownership of the property. While this does avoid probate, there is usually still paperwork that must be resolved after the first owner’s death to show that the remaining owner is now the sole owner of the property. Additionally, if an individual solely owns an asset that they would like to name someone as a joint owner with rights of survivorship on, they will need to ensure that the paperwork is properly filed. 

Individuals should note that in some cases, such as bank accounts, granting joint ownership grants the other individual equal rights to the asset. This means they can sell it, withdraw funds (from bank accounts), or make other changes. If an individual does not want to give the other person that much authority over the asset, they may wish to consult an estate planning attorney to learn about other alternatives. 

Automatic Transfer of Property on Death 

There are two ways an asset can be transferred automatically upon death: beneficiary designations and transfer on death designations. Some assets, such as life insurance and retirement accounts, allow individuals to name a beneficiary to receive the proceeds upon the policy or account owner’s death. Other assets, such as investment accounts or securities, allow the individual to designate someone to whom the asset transfers upon the individual’s death. This type of designation is essentially a beneficiary designation, however, they are subject to creditors’ claims if the asset owner has debts due at the time of their death. Life insurance proceeds and other assets with named beneficiaries are not subject to creditor claims.

Pay on Death Bank Accounts

A pay on death account may sound the same as a transfer on death account but there are some significant differences. While transfer on death accounts are typically investments, pay on death accounts are usually accounts such as checking, savings, certificates of deposit, or individual retirement accounts (IRAs). Accounts designated as pay on death avoid probate and allow the named beneficiary immediate access to the funds in the account. However, like a transfer on death account, they are subject to creditors’ claims and if the account owner has a high net worth, the designation may miss out on tax benefits for either the account owner or the designated beneficiary. 

Life Estate

A life estate sells a piece of real estate, most often the primary home, without giving up the asset. Life estates have two owners: the Lifetime Owner or Lifetime Tenant, who is the original owner, and the Remainder Owner, who is the person the real estate was sold to. The Lifetime Owner continues to retain the right to live in the home, to rent the home and collect that income, as well as the responsibility of paying property taxes and maintaining the home. The Lifetime Owner essentially still owns the home and can do as they wish with it, with the exception of selling it. 

The Remainder Owner becomes the owner automatically upon the death of the last Lifetime Owner. At that time, the Remainder Owner gains the right to live in the home, rent it and collect the income, or sell it, as well as the responsibilities of maintaining the home and paying taxes. Upon the death of the last Lifetime Owner, the Remainder Owner simply provides a copy of the death certificates of all Lifetime Owners to the Registry of Deeds with an affidavit regarding the value of the deceased’s estate to clear the title. 

Why Should You Hire an Estate Law Attorney to Assist With the Probate Process?

An experienced and dedicated Massachussets estate planning attorney may be able to help you create a comprehensive estate plan that can reduce the taxes on the estate and perhaps avoid probate. A dedicated attorney may also be able to guide you through the probate process. Call Priority Law at (978) 935-2000 to schedule a consultation with one of our estate law attorneys and learn more about estate planning and probate options.