How to Avoid Probate in Massachusetts

Each year, millions of dollars are spent on soaring attorney and court fees associated with probate, leaving surviving family members with substantially less than their deceased loved ones intended.  Not only is probate expensive, but it’s also a time-consuming process which can drag on for years.  As a result, loved ones may be left without much-needed financial support for long periods, potentially placing their security in jeopardy.

Fortunately, with proper estate planning, you may be able to avoid the prolonged probate process by taking advantage of what is known as the “small estate” exemption.  Call my office to learn if I can help you avoid costly fees, delay, of probate.

What is Probate?

Probate is a court-supervised process of distributing a deceased person’s assets according to a will (if one exists) or, if there is not a will, to a surviving spouse, children, siblings, or relatives as dictated by Massachusetts law.  Attorney, executor, and court fees for probating an estate often add up to thousands of dollars.  Fortunately, probate can often be avoided.

It may be possible with proper planning to avoid probate, as follows:

  • Forming a Trust. A trust allows a third party – the trustee – to hold assets on behalf of beneficiaries.  Assets in a trust are not considered part of an estate; thus, they also do not pass through probate.
  • Joint Tenancy. If property is held in joint tenancy with another person, and with rights of survivorship, if one dies, the other automatically receives the entire asset.
  • Making Property Automatically Transfer on Death. Many assets (such as investment accounts) have transfer-on-death provisions that immediately establishes full ownership in a joint tenant upon death of the other joint tenant.  These assets and accounts bypass probate, as are not part of the probate estate.
  • Using Pay on Death (POD) Bank Accounts. POD accounts allow a bank account holder to provide instructions to a banking institution to immediately establish full ownership in a joint tenant.  These assets are also not included in the estate of the decedent.
  • Setting Up a Life Estate for Real Estate. A life estate allows an individual to retain full ownership of benefits in real estate while alive and automatically transfers property rights to the named survivors upon the death of the holder of the life estate.

Identifying and executing the right strategy can be difficult.  In some situations, the benefits of trying to avoid the normal probate process may not be worth the associated time and expense (including the ongoing actions that will usually be necessary throughout a person’s life in order to minimize the value of the estate for purposes of considering the small estate probate exemption).  Additionally, for those with more complex estates (such as the ownership of a business), it may be difficult or even impossible to take advantage of the small estate exemption.

With years of legal practice, I can help you in the creation of a personalized strategy that best meets your objectives.

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