By Elizabeth A. Caruso, Esq.
What is probate?
When people talk about estate planning, they often say that you want to “avoid probate,” but what does that mean? In order to answer this question, you first need to understand what probate is. The Probate Court is the court in Massachusetts that handles the distribution of money from estates and domestic relations issues. Probate is the process of the Probate Court approving a will as valid or approving a petition to determine a decedent’s heirs at law if they did not have a will. Both procedures get you to the same place – a court-approved way to distribute money after someone has passed away.
The reason why many people say to “avoid probate” is because the process can be long and drawn out and the filings can be confusing to the average person. After filing the initial petitions to tell the court the decedent did or did not have a will, the court issues a citation that has to be published in the newspaper and mailed out to all interested parties. This process can take a few months. This processing time and notice to others is what people are usually trying to avoid. Time is money, and if there is real estate involved in the estate, then there can be some serious carrying costs associated with the timing of the court process. Additionally, noticing other people of the probate process opens it up to their potential meddling and objections, further delaying the approval of the petitions. Once you have gone through these initial steps and the court has approved the petitions, the court issues Letters of Authority that authorize someone to act on behalf of the decedent’s estate and start the actual process of cashing out and distribution assets. There is potential for additional court filings if real estate needs to be sold.
Just because someone died does not necessarily mean their assets have to go through probate. If assets were titled jointly with someone else, or if there are named beneficiaries, then those assets will not have to go through the probate court in order to be cashed out. Additionally, completing your estate plan and utilizing trusts can also help “avoid probate.”
An elder law attorney can help you to review your unique situation and best advise you as to how you can avoid a lengthy and public probate process. Elder law attorneys will walk through the assets you own and review different ways you can achieve the goal of “avoiding probate.”
About the Author: Elizabeth A. Caruso, Esq. is an attorney at Legacy Legal Planning, LLC, in Norwell. She has been practicing estate planning, probate, and elder law on the South Shore for more than a decade. If this article has sparked questions for you, please feel free to reach out via phone 781-971-5900 or email elizabeth@legacylegalplanning.com to schedule a time to discuss your unique situation.
