Probate is a very expensive and time consuming legal process which is required if someone passes away with assets owned in their individual name. The process applies regardless of whether someone dies with or without a Will. The probate court appoints a Personal Representative and then oversees the settlement of debts/expenses and the transfer of remaining assets to the lawful beneficiaries. Avoiding probate in Massachusetts should be one of your estate planning goals as the probate process can be expensive and time consuming.
Probate Time & Cost
In Massachusetts, a formal probate takes a minimum of one year. It can extend 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, if the decedent owns property in multiple states, the family will likely face multiple probate filings.
A Matter of Public Record
Probate files are open to the public (as are most court proceedings). This makes information on the decedent’s assets and wishes accessible to anyone who is curious or interested. It also creates an 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. If you or your heirs are concerned about privacy, then it’s best to avoid probate.
Avoiding Probate in Massachusetts
A major and common misconception is that 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 probate in Massachusetts is a fundamental component of all good trust planning.