By Elizabeth A. Caruso, Esq.
Myth or fact? I have a will, so my family is all set and doesn’t need any other documents to stay out of probate if I die.
This is a myth!
One of the top questions I get when I start a meeting with a new client is, “I have a will, my family won’t have to go to probate, right?” Most people are very surprised to learn that a will actually guarantees that your family will have to go to probate. Many people believe that having a will is enough to ensure their estate is handled smoothly after they pass away. While a will is an important part of any estate plan, it does not avoid probate. Understanding the difference between a will and a trust can help families save time, reduce costs, and maintain privacy during an already difficult time.
A will is a document that provides instructions for how your assets should be distributed and who will manage that distribution. It may also designate guardians for minor children. However, because a will only takes effect after death and must be validated by the court, the assets governed by the will generally must go through probate.
Probate is the court process of validating a will, paying debts, and distributing assets after someone dies. While probate ensures legal oversight, it can also be time-consuming, costly, and public. In Massachusetts, a probate often takes years to complete. Court fees, legal expenses, and administrative costs can also reduce the value of the estate that ultimately goes to beneficiaries.
A properly funded trust, such as a revocable trust, allows assets to pass directly to beneficiaries without going through probate. When assets are titled in the name of the trust during your lifetime, the successor trustee can distribute them according to your instructions after your death without court involvement.
This provides several key benefits:
- Avoids probate: Assets held in the trust transfer without the need for court permission.
- Saves time: Beneficiaries often receive assets much faster.
- Reduces costs: Avoiding probate can minimize legal and court fees.
- Maintains privacy: Unlike probate, trust administration is not a public court process.
- Provides continuity: If you become incapacitated, a successor trustee can manage trust assets without court intervention.
A comprehensive estate plan often includes both a trust and a will. The trust holds and distributes most assets, while the will (often called a “pour-over will”) acts as a safety net for any assets not transferred into the trust during your lifetime. Creating a trust is not only about asset distribution; it’s about making things easier for the people you care about. By minimizing court involvement and administrative burdens, a trust can help your loved ones focus on what matters most during a difficult time.
If you already have a will, an elder law attorney can review your estate plan to ensure your wishes can be carried out as efficiently as possible.
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.
