Probate Versus Probate Avoidance: How an Estate Plan Helps


03 Jun
03Jun

We all want to make sure that our families are looked after if we were gone, so it’s important to understand what happens to our assets. Without creating a comprehensive estate plan, your family will most likely end up in probate court to gain access to your accounts. It’s important to understand what happens throughout this process and how having a will may not be enough to avoid it. 

What is Probate?

 If you pass away without an estate plan (or, in many cases, even if you have a will), the Commonwealth of Massachusetts is tasked with ensuring that your assets pass to the right people through a process called probate. The Probate Court oversees this process to ensure that your property is properly split up among your creditors for debts and remaining assets distributed to the proper beneficiaries. In Massachusetts, this falls under the Probate and Family Court Department

Why Should You Avoid Probate?

 Probate is time-consuming, expensive, confusing, inconvenient, and emotionally draining for everyone involved. Successful probate requires attorneys and can lead to lengthy (and costly) court battles and contesting of wills. The good news is that it’s avoidable. 

How Estate Planning Helps

 Probate primarily deals with your assets – everything from bank accounts to houses and cars – and how it should be divided. Therefore, one of the primary goals of an estate planner is the ability to preserve as many assets as possible through probate avoidance and tax planning. 

Guardianship for Your Children

 For parents with minor children, the Probate Court may also need to appoint a long term guardian for their kids. This process is also lengthy and stressful, sometimes resulting in costly disputes between family members that take a toll on the family’s finances and the children’s emotional wellbeing. Nominating guardians is an essential piece of an estate plan that provides clarity and reduces the possibility of children ending up being raised by people that parents did not intend. 

Asset Planning and Management

 By crafting an estate plan that includes a revocable trust, you can avoid the probate process entirely. Revocable trusts allow you to control who gets your assets and when they get them. This is especially important if you have children under the age of 18 who aren’t legally old enough to take the title to assets that you intend to leave to them.  Your successor trustees will have immediate access to your assets without involvement with the court, and they will continue to manage assets for your children while they are young. You may also structure your trust to provide your children with asset protection into the future. 

If you’d like to learn more about how estate planning helps you and your loved ones, contact me at The Law Offices of Amanda L. Mulhall today. I work with young Massachusetts families to ensure they and their loved ones are prepared for unthinkable situations, including guardianship and incapacity planning