Avoiding Probate in Massachusetts Estate Planning

In the estate planning context, “probate” is the process by which a person’s Will is submitted, reviewed and approved so that its terms can be enforced.  Avoiding probate is possible only when all of your assets get distributed outside of your Will.  Why do people want to avoid probate?  First, probate costs money and time.  Families pay filing fees and attorney fees, and the process can take months.  More importantly, probate gives disgruntled family members a ready-made opportunity to challenge distributions, and it provides creditors greater opportunity to reach assets after death.  In fact, in Massachusetts, Medicaid can attach assets post- death only if those assets pass through probate.  Thus, particularly in my Massachusetts estate planning practice, most of my clients want to prevent their estates from exposure to probate.

In order to avoid probate, we need to understand the different ways in which title to assets can transfer after death.  A Will is not needed to pass assets post-death.  Assets can also pass by way of trust, contracts, beneficiary designations, and deeds.  Notably, all of these mechanisms will trump whatever is in a Will.  For example, if your life insurance or retirement policy names your spouse as a beneficiary, then that designation controls distribution of the death benefit, regardless of what your Will says.  Similarly, assets in Trust will pass by virtue of the Trust document without any regard to a person’s Will provisions.  Virtually all assets in a person’s estate – from basic checking accounts to brokerage accounts, 401(k), IRAs, life insurance policies, stocks, real estate and personal property – can be arranged for distribution by means other than a Will.

As a result, most Massachusetts estate planning clients can avoid probate with careful planning.  Doing so requires going beyond basic document drafting, and not allowing completion of a Will to dominate planning at the expense of probate considerations.  A good start is identifying and listing all assets at the beginning of the estate planning process, and discussing with an estate planning lawyer how each asset can be arranged to help ensure its post-death distribution without probate.