What IS probate, anyway?

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Attorney Lauren E. Miller
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By Attorney Lauren E. Miller, Fletcher Tilton

Any asset held solely in your name at death without a named beneficiary is a probate asset.  Probate is the process through which the assets solely in your name are transferred to your heirs upon death.  The probate process typically takes around one year and begins by filing a petition with the probate court in the county where the decedent resided.  If the decedent executed a will, the will is filed along with the petition. If it is allowed by the judge, the will governs the ultimate disposition of the probate assets.  If the decedent did not execute a will, the Massachusetts intestacy statute governs the disposition of the assets.

A common misconception is that having a will is a way to avoid probate.  There are indeed ways to avoid probate, but having a will is not one of them because wills are intended to go through probate and govern only probate assets.  Conversely, assets that avoid probate are not governed by the will.  One way to avoid probate is to add a beneficiary designation to an asset.  Some examples of assets this can be done with are bank accounts, life insurance, and retirement accounts.  Probate also can also be avoided by executing and funding a trust.

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With the courts as overburdened as they are, probate can be a frustrating, time-consuming and expensive process.  In addition, probate can feel overwhelming for those who are trying to settle the estate of a loved one while still grieving their loss.  Structuring assets during your lifetime so they avoid probate upon your death is a gift to those loved ones you leave behind.

Miller can be reached at [email protected] or 508-459-8044.