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The Heritage Law Center, LLC Blog

How Can I Avoid Probate?

POSTED ON: June 3, 2013

Avoiding Massachusetts probate is often the goal of my clients who have been through the process before: they know best the headaches and expense involved. But how can one avoid becoming mired in the Massachusetts probate process? There are several steps you can take to keep your assets out of the probate court and in your loved ones’ hands.

When someone in Massachusetts dies, their assets are frozen and their family and other heirs must go through a court process called probate. This is true whether the deceased had a will or not. The probate process involves filing the will (if there is one) and other documents with the court, thus becoming a public document. There are various filing fees to be paid and typically the family will hire an attorney to help navigate the process unless the estate is very small.

The attorney then gives notice to all living heirs and creditors and publishes a public notice in a local newspaper. Creditors have up to a year to make claims against an estate, leaving assets in the estate in legal limbo until the case can be closed. All the while, attorney fees are mounting.

Some assets, however, can avoid probate by simply filling out the right paperwork. IRA’s, certain pension funds and bank accounts can all avoid probate by having a designated beneficiary listed with your financial institution. In this case, those assets will automatically become the property of your beneficiary after proof of your death has been given.

Other assets, like you home and other real estate, will need to go through probate unless they have been transferred to a trust during your life. All assets held in trust avoid the probate process whether the trust is a ‘living’ revocable trust or an irrevocable trust. The key here, obviously, is to plan ahead.

To avoid probate on your estate, contact your financial institutions and ask for beneficiary designation forms. Also, contact an estate planning attorney to determine if a trust is in your best interests and what kind will offer you the best results.