Does Having A Will Avoid Probate?
There is a common misconception that having a valid will allows a decedent to avoid probate. This is completely false.
When someone dies without a will, they are considered “intestate”. The Massachusetts Uniform Probate Code includes several formulas for determining the division of assets when someone dies intestate. These formulas are based on the assets of the estate, and whether the decedent left a surviving spouse, children, grandchildren, parents, distant relatives, etc.
The primary benefit of a will is that it avoids using these intestacy formulas. Instead of a formula determining who inherits an estate, the will states who will inherit. This is a huge advantage over intestacy, because it allows the decedent to set forth their intended beneficiaries.
However, whether someone dies intestate (without a will) or testate (with a will), their estate still has to go through probate.
What is Probate?
Originally, the term probate referred to the legal process for determining the validity of a will presented to the court. This led to the courts tasked with jurisdiction over the administration of decedents’ estate to be called “probate courts”. In Massachusetts the court probate court also has jurisdiction over domestic relations cases, and is called the Probate and Family Court. Now, the term probate refers to the process of administering an estate in the probate court.
The process for probating an intestate estate and a testate estate are essentially the same. Someone, usually a close family member, must submit a Petition to the Probate and Family Court. The Petition will typically request that the Court determine the proper beneficiaries of the estate (by applying the will, or the intestacy formulas), and officially appoint someone as the Personal Representative (formerly called Executor or Administrator) of the estate. Depending on the complexity of the estate, the remainder of the administration may be relatively simple or complex.
So What’s the Matter with Probate?
If you listen to talk radio, you’ve probably heard advertisements proclaiming the horrors of the probate process. While these commercials are somewhat hyperbolic, probate does exert a cost, in time, energy, and money.
First, probate is slow. Even if a decedent’s family is prompt about administering an estate, it’s probably going to be a few weeks before they can file a probate petition. Then once the petition is filed, it could be a few more weeks before the Probate Court issues a Citation. A citation is the Court’s written instructions for serving notice on interested parties. It involves sending copies of the citation in the mail, and publishing the citation in a local newspaper. The citation typically allows a period of time for interested parties to object to the petition, usually around a month. Then, once the objection period has expired, it could take the Court several more weeks to approve the petition.
As you can see, just getting permission to administer an estate can easily take three months, or more. Then, creditors of an estate have one year from the decedent’s date of death to file claims against the probated estate. That means that the Personal Representative cannot safely make distributions until a year has passed.
And this illustration is for an estate that goes smoothly, which seldom happens. Ensuring a snag free probate will require either a considerable amount of the family’s energy in researching the process, or hiring an estate attorney at considerable expense.
The fees for probating an estate run into the hundreds, even without hiring an attorney. The court fees in Massachusetts are around $400, and the newspaper publication fees are around $200, depending on the specific paper.
The good news is that probate can be avoided with relative ease.
How Can I Avoid Probate?
The best method for avoiding probate is to establish a revocable trust during your lifetime. Think of a revocable trust as a “will substitute”. It essentially allows you to designate the beneficiaries of your estate, but is not subject to the probate process. Instead, your trust will nominate someone to take over as trustee upon your death, so that they can immediately manage and administer your legacy for your loved ones.
In addition to avoiding probate, revocable trusts have a multitude of other estate planning advantages over simple wills. When done correctly, revocable trusts can double the amount of assets that a married couple can pass free of estate taxes, and can protect the beneficiaries’ inheritances from their future lawsuits, creditors, divorces, etc.
If you are interested in revocable trusts, avoiding probate, or estate planning in general, please contact an specialized estate planning attorney. A bit of planning now will safe a lot of money and frustration in the future.