Tips to Keep Your Home Out of Probate

You may have heard stories before of homes that are “stuck” in probate.  But what does this mean?  What is probate, and should you avoid it?  If you are interested in learning the answers to these questions, then read on!

Probate property is any property that is held in your sole name at death.  After you pass away, probate is the process through which your assets are transferred to your named beneficiaries (if you have a will) or to your heirs (if you pass away without a will).  In the case of your home, the way it is titled on your deed determines whether or not your home is a probate asset.

So what are some examples of ways to title your home that will not avoid probate?

1. Your sole name.  If your deed has your name only, and your pass away, your home becomes a probate asset.

2. Multiple names as tenants in common.  Unlike “joint tenants,” ownership as “tenants in common” does not include the right of survivorship.  For example, let’s say that you and your sibling have equal ownership in a home that you inherited from your parents, as tenants in common.  If you die, your fifty percent share will go to your beneficiaries or heirs, and not to your sibling.  This means that your 50% share must go through probate.

Here are some ways to title your home that will avoid probate:

1. Joint tenants with right of survivorship.  This title allows a property to pass directly to the other person(s) named on the deed.

2. Tenants by the entirety.  This type of ownership functions similarly to joint tenants, but is a special title only allowed for married couples.  Tenants by the entirety ownership also takes advantage of certain asset protection rules created specifically for married couples.

3. Title in the name of a trust.  The are various types of trusts, many of which allow your assets to bypass the probate process.  If your title is in the name of the trustee of your trust, your home can avoid the probate process.  Please note: simply having a trust does NOT mean that your house will avoid probate, your house must be placed into the trust before you pass away.  If you have questions regarding a specific trust, please consult an attorney.

Okay, so now you know ways to title your home to avoid probate, but why should you care?  Probate is a long and costly process.  Most probates in Massachusetts take an a minimum of one year.  Any assets that must go through probate are inaccessible to the heirs or beneficiaries for months after you have passed away, and real estate cannot be sold right away either.

Now that you understand the basics of how probate works for real estate, ask yourself: Is my home titled to avoid probate?

If you have questions regarding keeping your home out of probate, please contact Lauren E. Miller, Esq. of Ladimer Law Office PC at (508) 620-4565 or at lmiller@ladimerlaw.com.  The above article is for informational purposes only and should not be construed as legal advice.  No attorney client relationship is created by reading this article.  This article should not be used as a substitute for competent legal advice from a licensed attorney in your state.