The grieving process after losing a loved one is made even more complex by the added challenge of probating an estate. Estate administration raises numerous questions from the start, including how expenses will be covered, which beneficiaries will receive an inheritance, and how access to the deceased’s accounts will be obtained.
The probate process can be a complicated and lengthy one, especially in Massachusetts where a probate case must remain open for a minimum of 12 months to allow creditors to make claims against the estate.
Despite the difficulties, not all estates require probate.
The need for probate is determined by various factors, including the type of assets owned by the deceased and how they are titled, whether there are joint owners or beneficiaries, and the value of the assets. Assets that are titled solely in the name of the deceased may require probate, while others that have joint owners or beneficiaries may pass directly to them without the need for probate.
Not all estates need to go through probate
Some Massachusetts estates need to be probated, and others don’t. What accounts for the difference?
This question actually gives way to a fundamental question: What is probate?
Probate administration in Massachusetts and other states is a process that focuses on a number of matters relevant to property, the rights of heirs, estate debt, taxes and related issues.
If you have some familiarity with the process you might note that a key purpose of probate is securing a court’s confirmation that a will is valid. Beyond that, though, the probate process focuses upon several additional matters. As noted in a Massachusetts government website discussing probate essentials, those centrally include these considerations:
- Dealing with property distribution when asset transfer (regarding realty, a life insurance policy, savings/retirement accounts and so forth) is not by right of survivorship or otherwise passed directly to another party by operation of law
- Handling creditors’ claims
- Filing estate tax returns
- Appointing a personal representative when necessary
No probate process is the same. Some estates that are probated can be settled comparatively quickly and easily. Others, conversely, can be fraught with complexity, especially when heirs emerge to make competing claims to estate assets.
Assets that don’t need to be probated:
The probate process, which is managed by the court, involves distributing a person’s assets after covering all outstanding expenses of the estate. It’s important to note that not all assets need to be probated and some examples of such assets include:
Jointly held assets:
Some assets don’t need to go through probate, such as joint holdings. A common example of this type of asset is a bank account held by more than one person. Upon the passing of one joint holder, the asset will automatically pass to the surviving joint account holder. Another example is real estate held by spouses as tenants by the entirety, which will pass to the surviving spouse automatically. Additionally, if real estate is held with another individual and states “right of survivorship,” it will also pass automatically to the other owner.
Assets with designated beneficiaries
Retirement plans and life insurance policies often have a named beneficiary. These assets will bypass the probate process and will directly go to the individual specified as the beneficiary.
Assets held in a trust
Assets held in trust are not subject to probate as legal ownership of these assets is retained by the trust. Upon the passing of the creator of the trust, the distribution of the trust assets is determined by the trust instructions, bypassing the need for probate court intervention. The named Trustee can immediately access these assets without undergoing the probate process.
An Estate and Probate Attorney can simplify the process
An experienced estate administration attorney well versed in the probate process can play a key role in helping estate principals effectively work through probate issues and legally close an estate.
In some instances, proven legal counsel can play a beginning-to-end role in probate that closely attends to all important points. At other times, a probate attorney can provide assistance on matters that are selectively raised by a client.
For proven guidance on the Massachusetts probate process, individuals can turn to the experienced estate administration lawyers at the Law Offices of Kimberly Butler Rainen. If you have any questions or concerns regarding probate, our legal team is here to assist. Give us a call to confidentially discuss your estate planning and probate needs. You can also follow this link to set up an appointment.