Kathy L. McNair, Esq.
What is Probate? Do you need to avoid it?
Most people do not know what Probate means. If a person dies with assets held solely in his or her name (without a beneficiary or payable on death designation), no one can access these assets, without a court order. This process of changing the title out of the deceased person's name and distributing the assets to those entitled to receive them is called Probate.
In Massachusetts, The first step involves filing a request (called a petition) with the court, including a death certificate, and the original will, if there is one.
When there is a will, the court must look at the will to make sure that it was properly executed and valid. Heirs and interested parties in the estate must be given notice that the will has been filed and will have an opportunity to object to the allowance of the will. In most cases, the court will appoint the Personal Representative (also called Executor) named in the Will to handle the estate. Once the Personal Representative is appointed, he or she must pay the debts and taxes, and make sure that the assets are distributed according to the will.
If a person dies without a will, then the closest living relatives may file a request to be appointed as the Personal Representative. After paying the debts and expenses of the estate, the remaining funds will be distributed according to the law of Massachusetts.
Creditors have up to one year from the date of death to file a claim against the estate. Therefore, the Personal Representative must be careful that he or she does not distribute all of the assets of the estate until all debts and tax obligations have been paid.
We often help clients throughout the probate process, as it can be confusing.
Clients who wish to avoid Probate should consider executing a trust. However, once the trust is created it will only avoid probate if you change the title of your assets, including your real estate, into the name of trust.
Clients may also avoid Probate by designating beneficiaries or providing payable on death designations on accounts. Assets held jointly do not need to go through the probate process, as they pass to the joint owner automatically upon death. However, clients should make sure that assets held jointly, reflect their wishes for the ultimate distribution of the assets upon their death. Any time that you change the ownership of assets that have appreciated in value, you should also consider the tax consequences that result.
For simple estates, Probate is relatively painless and is not very expensive. However, in more complex cases, avoiding probate is often recommended. We are here to help with all of your estate planning needs.
Senior Solutions Attorneys at Law, 30 Church Street, Suite 210, Belmont, MA 02478