In Massachusetts, the term “probate” refers to the process of transferring property after a person has died. This legal process is overseen by a Family and Probate Court, and generally must be completed within three years of the death. However, not all types of property must go through probate.
To understand why, first we must look at the meaning of the term “estate.” After a person dies, all his or her property becomes known as that person’s estate. If the person left a will, the probate court determines if the will is valid and then oversees the process as the property in the estate is distributed according to the terms of the will. Typically, this work is performed by an executor or personal representative who is named in the will or appointed by the court.
However, there are types of property where ownership is transferred automatically, through some other means. For example, a deed to real estate can transfer on death to a designated survivor without becoming part of the estate, and therefore does not have to go through probate. Life insurance policies and retirement accounts typically name a beneficiary who will receive these assets upon the bearer’s death, and so these assets are not part of the estate. Property that is held in a trust can also avoid being part of an estate.
It’s not necessarily bad for property to go through probate, but there are advantages to avoiding it. Property that is not in an estate is not subject to state or federal estate taxes, and it doesn’t get tied up in the probate process, which can take months. All that time can cost money, and many of the court fees come out of the estate, leaving less for the heirs.
For these and other reasons, estate planning attorneys often talk to their clients about strategies for avoiding probate when possible. A skilled estate planning lawyer can talk to interested people about their options.