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The Heritage Law Center, LLC Blog

Avoid Double Probate on Your Vacation House

POSTED ON: August 3, 2011

The probate process can be expensive and time consuming for your heirs; it can also be a real emotional drain. Imagine then, putting them through the probate process twice! That is just what can happen if you own out of state property and have not planned ahead to avoid probate.

One of the main concerns clients often have when discussing their estate plan is how they can keep their property out of probate. Perhaps they have been through the probate process after a loved one passed or have simply heard friends or family complaining about the high costs and long waits associated with the probate system.

However, people in Massachusetts who die intestate, i.e. without a Will, must have most of their property go through probate in order to be distributed to beneficiaries. In fact, even those who have a Will, without further planning and the use of trusts, will have to put much of their property through probate.

When someone dies in Massachusetts, any property they owned individually (i.e. not jointly owned property like a house or property with a designated beneficiary like life-insurance) will have to go through probate. However, Massachusetts probate only affects Massachusetts property. That means that property owned outside of the state—like a vacation home or investment property—will have to go through probate separately in whatever state it is in. This is called ancillary probate, and it will often require a separate probate case, with additional legal fees and waiting periods before any heirs can inherit. Obviously, this is not an ideal situation.

If property is put into a trust, however, it will avoid probate completely and pass to whomever is named in the trust documents or accompanying Will. Even out of state property can be put into a trust, thus avoiding the need for ancillary probate out of state. The type of trust that is often used for this purpose, due to its flexibility, is the revocable trust. As its name implies, it can be changed or canceled at any time by the person who created it. Assets that are put into the trust can be taken out whenever necessary and beneficiaries can be added or changed easily.

If you own property out of state, it would be wise to establish a revocable trust now so that your heirs and loved ones can avoid the pains of probate not once, but twice. Call our office today to discuss how we can help you set up a revocable trust.