413-781-2820 413-781-2820

Should You Avoid Probate?

A lot of people want to avoid probate without realizing what it is or that it has benefits.  Thorough estate planning involves a careful evaluation of whether avoiding or minimizing probate is desirable.

Probate refers to a court process for overseeing the appointment of the personal representative, the determination of the validity of a decedent’s will, identifying heirs of the estate, locating and gathering assets held in the name of the decedent, notice to creditors of the estate, and other property issues arising at death.

A few advantages of probate:

Legal notice.  The publication required in probate gives creditors one year (in Massachusetts) from the date of death to make claims against the estate.  For estates facing creditor problems, the deadline offers finality and protection.

Court oversight.  Judicial involvement of the administration protects interested parties from possible mishandling of the estate by the personal representative.  Many people can trust a family member acting as personal representative to administer the estate properly.  In some situations, however, inventory and accounting requirements provide much needed order and transparency.

The major disadvantages generally associated with probate are public disclosure of assets in the decedent’s name and the expense of the probate process.

Disclosure.  While assets in a decedents name often must be disclosed, life insurance proceeds, joint assets and IRA and 401(k) benefits, which often make up the bulk of a decedent’s assets, are normally not disclosed because joint property and property passing under contract by beneficiary designation are not probate assets.

Cost.  There is a cost to probate.  However, under the Massachusetts Uniform Probate Code, in effect since March 2012, the probate process is streamlined to allow less formal, more user-friendly administration options.  As a result, the cost of probating an estate in Massachusetts often is much less than in many other states and should not be the reason for deciding whether or not to avoid probate for a Massachusetts resident.