Wills Don’t Avoid Probate!

Death is a natural part of life. It will happen, and we don’t know when. Unfortunately, in my line of work I’ve seen too many times when someone passes away too soon.

I had a mom come to me when her husband passed away unexpectedly at 40 years old. They had twin daughters who had just turned 7. The couple hadn’t gotten around to doing an estate plan with an attorney. The husband had gone online and done a Will. He thought he was doing the right thing, but it only caused extra work after he passed away.

Why? Because having a Will does not avoid the Probate Court’s intervening in your estate: the Will is the document that gets filed at the Probate Court. He hadn’t structured his assets in a way to avoid probate. This meant that his wife couldn’t access some of his accounts. His assets were frozen, and she had two little kids who she was now raising by herself.

How Does the Probate Process Work?

Assets in a decedent’s SOLE name at death cannot be accessed until the Probate Court appoints someone to be the Personal Representative of the Estate (formally called the Executor/Executrix here in Massachusetts).

What Does “SOLE Name at Death” Mean?

It means that there is no joint owner, no other name on the account, no beneficiary, and no trust holding the account.

Lots of people think “oh there’s not much in that account” but the amount doesn’t matter, only how the account is titled.

Back to my client, I was heartbroken when she came to me. I was able to help her navigate the Probate Process, but it was a nightmare! Her husband’s online document didn’t educate him on the Probate Process so there were some hiccups. (When you do a Will online you don’t speak to a barred attorney in your state.) When we filed the Will at the Court (YES! THE WILL GETS FILED AT THE PROBATE COURT) the online Will named his brother, who lived in another country, as guardian of his two girls – not the surviving mom!

So, this poor mom was not only grieving the loss of her husband, she also had limited access to his accounts AND she had to jump through hoops to ask the Court NOT to appoint a guardian ad litem (lawyer appointed by the Court to represent the minors’ interest in the probate matter), as is required by law. There are much easier ways to handle this type of situation!

If your head is spinning with all the legal jargon, that’s ok. My goal with this email is not to scare you, but to show you what actually happens with your assets when you pass away. Understanding the process and being educated on the rules is empowering. When you know how something works, you can take action to avoid the negative consequences. Death is one of the hardest emotional things we deal with as humans. Make it easier for your family so that can focus on the healing process and less on the legal process.

Don’t have an estate planning attorney? Contact us today to make sure you know that your assets will be passed down according to your wishes! Ladimer Law can be reached at admin@ladimerlaw.com or at 508.532.8689.