The quick answer is that not all estates have to go through probate in Massachusetts. It depends on the assets, how they are owned, and what estate planning has been done.
What is Probate?
Probate is a court-supervised proceeding that takes place after a person has died (also known as a decedent). In this process, a will is verified, assets still titled in the name of the decedent are identified and appraised, and debts and taxes for the estate are paid. The remaining property is distributed according to the will or the Massachusetts law of intestacy if there was no will or trust. The assets involved in this process are referred to as probate assets because they require a probate court order to pass title from the decedent to the beneficiaries.
Probate can be either formal or informal. The most common procedure is likely an informal probate, which means they involve an administrative process without any court involvement or court hearings. People often want to avoid probate because it can take a long time, possibly as long as 12-18 months, and be expensive (e.g., executor’s fees, accounting fees, court fees, attorney’s fees, appraisal costs, etc.). The general rule is that an estate has to file for probate within 3 years of when the decedent died.
An executor is the person named in the will who will manage the estate. If there’s no will, an administrator is appointed by a court to manage a decedent’s estate.
What Assets Have Go Through Probate
Probate is about transferring property and ownership after someone has died. There are assets that have to go through probate and assets that don’t need probate. It depends on the type of asset that the decedent owned and how it was titled. Certain assets can pass straight to beneficiaries (so no probate) because the law says they can.
Assets titled only in the name of the decedent, typically go through probate. Here’s a list of assets that must go through probate:
- Any real property like buildings and land that are solely held in the decedent’s name or held as tenants in common. The decedent’s share passes to their heirs or as outlined by their will.
- Personal property like furniture, family heirlooms, and cars (as long as only the deceased person’s name is on the car’s title). Transferring ownership of a vehicle outside of probate can be done if there’s a surviving spouse. The Massachusetts Registry of Motor Vehicles will issue a new title in the surviving spouse’s name, which is needed in order to sell the vehicle or transfer ownership to someone. When there’s no surviving spouse, the vehicle would have to go through probate.
- Bank accounts held only in the decedent’s name
- Life insurance policies and brokerage accounts that list the deceased person only or the estate as the beneficiary
Assets that Don’t Have to Go Through Probate
- Assets in a trust. If a person created a living trust, the assets in the trust wouldn’t have to go through probate. That’s because the trust legally owns the assets. When the creator of the trust dies, the instructions in the trust direct the distribution of the assets.
- Property held in joint tenancy with rights of survivorship. This is when two or more people own an equal interest in a property. Upon the death of one owner, their interest in the property automatically transfers to the other owner(s).
- Joint accounts. Bank and brokerage accounts held in joint name avoid probate. When an account owner passes away, the accounts automatically transfer to the other joint owner.
- Assets with POD or TOD provisions. Massachusetts allows payable-on-death designations (POD) on bank accounts where you’ll name a beneficiary. While living, you remain in full control of your finances. Ownership only transfers when you pass away. Similarly, designating beneficiaries on stocks, brokerage accounts, or bonds makes them transfer-on-death (TOD) accounts. Funds are directly transferred staying out of probate.
- Assets with a beneficiary designation. Life insurance, brokerage accounts, and retirement accounts that list a beneficiary other than the deceased’s estate avoid probate and go straight to the named beneficiary.
Small Estates Can Avoid Probate
When the value of an estate’s probate assets is $25,000 or less (excluding the value of one car) and the estate doesn’t have any real property, the estate can go through a limited version of probate called voluntary administration. This process is much faster than regular probate.
If you’re responsible for an estate that has to go through probate, an experienced Massachusetts estate planning lawyer can help. Our team can work with you throughout the process to make it as easy for you as possible. Contact us today to schedule a confidential, no-cost consultation.
