It is a common misconception that if a person has a will, there will be no need for court proceedings upon their death. In Massachusetts, however, a will must always be admitted to probate, a process requiring various forms of court proceedings. However, the good news is that there are ways to structure an estate to minimize the assets passing through the probate process.
Here is a brief overview of what probate is and is not. Probate is simply the process by which a person’s will is determined to be valid and that, therefore, their assets can be distributed according to the will. In the simplest form, a party will file a will and a petition for formal or informal probate of a will, along with assent of all the interested parties. The court will admit the will to probate, everyone will gratefully accept their inheritance, and the will is followed to the letter until the estate is distributed, at which time it will be closed. Probate does not necessarily mean that there will be a contest of the will: a person can contest the will if they so choose, but conflict is not inherent in the probate process. That said, probate can still be time-consuming and difficult to navigate, even without conflict. So, how can it be avoided?
First, many assets are non-probate assets. This means that by their very nature, they pass outside the probate process. A common example is a retirement account on which you name a beneficiary. The company holding that account will simply pay out the retirement account to the named beneficiary, without needing a court process to determine who should receive that account. You should be sure to designate beneficiaries whenever you have the chance because if a beneficiary is not designated, these assets may pass into your estate to be subject to the – you guessed it – probate process. You can also explore options with your financial institutions about pay-on-death designations for bank accounts, as such designations will also take your bank accounts out of the probate process.
Second, you can avoid probate by putting all of your assets into trust. Such a trust may designate anyone you choose as a beneficiary of the trust property. Now, there may still be a challenge to the trust itself, but you can avoid the probate process for all assets held in a trust that was established and funded during your lifetime. If you manage to put all your property into a trust, you will no longer have any probate estate. Consult with experienced trust and estate planners, like those here at Burns & Levinson, to make sure that your trust will still allow you to meet your needs during your lifetime.
Third, if you own a house, you can also ensure that your real property does not pass into your probate estate by transferring the house into joint title with the intended recipient of the house. Importantly, you can title your home jointly with whomever you choose, not just your spouse. Obviously, this is a dangerous proposition if you later have a falling out with your best friend who now has an interest in your house, so choose wisely! Be cautious about what form of joint ownership is designated on the deed, also. The joint title must have a right of survivorship, or the asset will remain part of your probate estate. Consult with an attorney to ensure that you do not go to the trouble of retitling your home only for it to remain part of your probate estate. The most important part of this process is recording any change in the deed at the appropriate registry of deeds; if the change is not recorded, it will create further problems down the line.
You can follow a similar process with other tangible property, like a car or a boat. Again, be cautious about who you choose to designate as a joint owner of the property!
Keeping your beneficiaries up to date is important to ensure that those assets that you want to pass outside of probate do so. As mentioned above, if the other person on the title or on the beneficiary designation predeceases you, the asset will become part of your probate estate. In summary, while it may not be possible to avoid probate entirely, you can simplify the process and ensure that there is less property that must go through the probate process. With careful planning, you may even qualify for the simplified probate process for small estates or avoid probate altogether.