The Heritage Law Center, LLC Blog

Why Your Trust May NOT Avoid Probate

POSTED ON: August 8, 2011

The time and expenses involved with probate in Massachusetts often lead clients to seek ways to avoid it by consolidating their estate in a trust. I’ve spoken before about the beneficial attributes of using trusts in estate planning and Massachusetts probate, and they are in fact one way to keep assets out of probate. However, no trust is a silver bullet and without a backup plan your heirs could easily find themselves in Massachusetts probate court.

A trust, revocable or otherwise, is analogous in some ways to a car. Without gas, a car is a pretty useless vehicle. Likewise, a trust is only useful in relation to what you put in it. For example, say a person has a house, a boat, some stocks and bonds and various items of personal property. They put their house and stock into a revocable trust, but leave out their boat and bonds. They have a will that leaves these items and their personal property to members of their family so they assume everything is all set and that they will avoid probate.

Unfortunately, this is a plan doomed to fail. A trust can only protect what is in it, i.e. the house and stock. These items will avoid probate and be passed on to whoever is named as a beneficiary in the trust documents. The rest of the items, although disposed of by Will, will have to be probated before they can be distributed to the heirs. In this case, if the client’s main objective in establishing a trust was to avoid probate they would be sorely disappointed.

When you think about it, the reality is that it would be close to impossible to put all of your possessions into a trust. We gain possessions throughout our lives and have no time to be constantly revising trust documents to make sure we have every angle covered. Plus, with trusts the devil is in the detail and one forgotten item could put your heirs right back into probate court—where you hoped they would never be.

How then can a trust help avoid probate completely? By working in conjunction with a pourover will. When a trust and pourover will work together, everything in your estate is able to be placed into the trust upon your death. Whatever you want to put in trust while you are alive will already be protected. When you pass, the pourover trust kicks in and instructs that everything remaining in your estate should “pour over” into the trust. This is a failsafe way to make sure nothing is forgotten or gets let out of the trust. Your heirs can then receive their inheritances through the terms of the trust while avoiding the pains of Massachusetts probate.

If you are interested in avoiding probate in Massachusetts, call the Heritage Law Center now to discuss how we can help.