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Probate Avoidance - Legal Services


What is probate?

Probate is a very expensive and time consuming legal process which is required if someone passes away with assets owned in their individual name. It applies regardless of whether someone dies with or without a Will. In this process, the probate court appoints the Personal Representative and then oversees the settlement of debts and expenses and the transfer of the remaining estate assets from the person who has died to the lawful beneficiaries.

In Massachusetts, a formal probate takes a minimum of one year, but can extend out much longer due to common delays with the probate court, minor or incompetent beneficiaries, litigation surrounding the estate, or any number of other issues outside of the control of the beneficiaries. During this time, legal fees, executor fees, and court costs continue to accumulate.

Additionally, probate files are open to the public. Not only does this now make a decedent’s assets and wishes available to anyone who is curious or interested, but it also creates the opportunity for disinherited heirs and creditors to come forward and seek a share of the estate. Furthermore, creditors and predators will know exactly how much each beneficiary is receiving.

Finally, if the decedent owns property in other states, the family will likely be faced with multiple probate filings because the probate process would need to occur in each state in which the decedent owned assets.

How do I avoid probate?

A major misconception we encounter is that people believe having a Last Will and Testament avoids probate. On the contrary, a Will, to be implemented and effective, must be probated. At Simmons & Schiavo, much of our practice is devoted to providing guidance and advice to create estate plans designed to avoid the probate process by using trusts and other planning strategies. Avoiding the court system is a fundamental component of all good trust planning.