7. What is “probate” and how do I “avoid” it?

The term “probate” refers generically to the administration of an estate under the supervision of the Probate and Family Court.

In addition to the practical matters of marshaling assets, paying debts, and making distributions, the personal representative (formerly known as an executor or administrator) for a probate estate must attend to significant court-related obligations, including providing notice to the appropriate persons, filing an estate inventory, and filing at least one probate account. The process can be complex, time-consuming, and expensive.

This process is required, however, only with respect to one’s probate estate. By minimizing the assets in your probate estate, you can “avoid probate,” i.e., simplify or minimize court supervision. One’s probate estate includes everything that has not passed to a survivor pursuant to joint ownership or a beneficiary or transfer-on-death designation. Thus, one spouse’s interest in a home held jointly with the other spouse will pass automatically to the surviving spouse apart from the deceased spouse’s probate estate, as will retirement account benefits and life insurance proceeds when the spouse is the named beneficiary. To keep other assets, such as investment accounts or listed securities, out of your probate estate when you die, you need to get them out of your name when you are alive. To achieve this, you can transfer your assets into a trust, often referred to as a “living trust,” that names you and your spouse as beneficiaries during your lifetime and your spouse and children as beneficiaries after your death.

HAVE QUESTIONS ABOUT AN ESTATE PLAN?

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Sandy S. - Estate Settlement Client