I want to avoid probate … right?

Probate is another one of those words many have heard and it’s probably something you’re told you want to avoid, but not many people have experienced or truly understand what it entails even if they know what the term means.

Probate is the legal word for the Court process of handling the assets and obligations of a person when they pass away. Assets in a person’s individual name (without having a beneficiary designation) have to go through probate to transfer to the beneficiaries

So – what does probate entail? Probate can be formal (with lots of Court oversight) or informal (with little or no Court oversight). The process for both formal and informal probate begins with an application for administration. Informal is always preferred over formal for the simple fact that there is less cost, less oversight, and a shortened process. That being said, when there is conflict sometimes Court oversight is required to effectively move the process along.

After an application for administration is filed and accepted by the Court, a Personal Representative is appointed. The Personal Representative (other states call this person an executor) is the person who will put in the work to settle the estate: publishing notices; informing creditors; filing an inventory; compiling and liquidating the assets; paying last expenses, outstanding bills, and administrative costs; and filing any needed tax returns.

After the work is complete and an accounting of the process put together, the Personal Representative can distribute the assets according to will. Or, if no estate planning was done, according to the state’s intestacy laws.

I just went over a simplified version of the probate process. A typical probate can last about a year. A contested process can take years. There are also costs associated with probate – Court costs, attorney’s fees, and accountant’s fees on top of the ordinary costs of administration. Finally, probate is a public process, which means creditors are more likely to come forward; beneficiaries are more likely to contest; and strangers are more likely to learn about your business.

It is important to sit down and plan your estate. Deciding not to have a plan, is still a plan. Be mindful of what your actions (or inactions) mean and what the process will entail after you are gone.

Also, you cannot obviously force our loved ones to make their own plans. If you find yourself in a situation where you are facing probate for a friend or family member: Don’t panic. The best thing to do is talk with an experienced Massachusetts probate attorney.