Some parts of modern adult life, like root canals and IRS audits, are both miserable and hard to avoid. Going through probate might not be quite as torturous as having teeth pulled, but it’s not something anyone does for fun. Avoiding probate is generally a goal of estate planning for good reason.
What is Probate?
In short, probate is the court process by which property is passed from a decedent (someone who has died) to the people who are entitled to inherit it. Determining who receives what is typically straightforward if the decedent left behind a will spelling out his or her wishes. If there is no will, it falls to the court to decide who gets what.
One of the first things that happens during probate is the appointment of a personal representative, formerly known as the executor. The personal representative may be named in the will, or a person who wants to act in this capacity may volunteer if there is no will. Either way, the personal representative must petition the probate court to get the authority to actually manage and distribute the assets in the person’s estate.
It’s a myth that having a will means avoiding probate. The personal representative still has to be approved by the court, even if the decedent named that person in the will.
What Constitutes Probate Property?
Only certain types of assets can be transferred through probate. Property must be in the decedent’s sole name at the time of his or her death. If the decedent co-owned a bank account with his spouse, for example, his share passes to the spouse upon his death – he can’t leave his “half” to someone in his will. Likewise, a house or other real property co-owned by spouses typically becomes the sole property of the surviving owner.
An exception is made for property held by tenants in common, an arrangement in which co-owners are each entitled to a share of the property. Each owner’s share passes to his or her estate at death and can then be inherited by a beneficiary, so this is one way in which joint property can be transferred through probate.
Assets held in trusts and certain accounts that are transferable upon death are not probate property because they are already set up to have named beneficiaries. The transfer of these assets doesn’t require the input of the courts.
Why Should I Avoid Probate?
The emotional toll is one of the primary perils of going through probate. The personal representative role is usually filled by a close relative of the deceased, who will then navigate a stressful legal process while grieving and managing other tasks like cleaning out the decedent’s home. Probate typically stretches on for months. Some cases last for more than a year. Beneficiaries don’t receive any money until the process is complete, which can be devastating if minor children or dependents rely on that money to cover living expenses.
Depending on the complexity of the estate, the process can also be expensive. It’s not uncommon for families to spend thousands on court filing fees and attorney fees. Hiring an attorney isn’t strictly necessary – personal representatives can represent themselves in court – but it’s useful because going through probate is confusing and can be overwhelming for grieving families. An attorney will usually require a retainer before beginning work. It can be reimbursed by the decedent’s estate, but that eats into the inheritance that the beneficiaries receive.
There’s a public element to probate that complicates some cases. Certain documents become public record, and some probate proceedings include hearings that require details of the decedent’s estate to be shared in open court. It’s not unheard of for distant relatives to make claims against a decedent’s estate after learning that probate is underway. Probate actions also have to be published in a newspaper, so creditors who have a claim against the decedent can find out that there’s money on the table.
Dealing with creditors is always a thorny part of probate. When a decedent leaves behind outstanding debts, creditors can stake a claim on any probate property. Here in Massachusetts, MassHealth can recover money from a member’s estate as reimbursement for what it spent on the person’s care. Massachusetts law allows MassHealth and other creditors to be paid back from a decedent’s estate before any heirs access any money. Sometimes creditors wipe out the balance of a probate estate and leave nothing for person’s beneficiaries.
How Can I Avoid Probate?
Thorough estate planning is the best way to spare your loved ones from going through probate – or at the very least, making sure the process is as painless as possible. Establishing trusts is one way to transfer assets to loved ones without inviting the court’s interference. Ultimately, your specific circumstances will determine what tools best serve your needs. Estate planning isn’t a one-size-fits-all process.
We know that these issues can be confusing, and that you might not know where to begin. At Ladimer Law Office PC, our attorneys specialize in estate planning and strive to take the worry out of this process. Contact us to get started.
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Ladimer Law specializes in estate planning. We protect our clients, their heirs, and their assets by listening closely, knowing the law, and executing estate plans that fit and evolve.