One of the main goals in setting up a will or a trust for most families is to help the remaining family members to avoid probate after you are gone. Probate can be a tedious and costly process, and if you can help your family avoid it and have assets dispersed to them directly, it can save them time and costs during an already trying time.
Each state has ways of accomplishing this goal. Read below to learn more about how this is handled in Massachusetts.
What is Trust?
Creating a trust is similar to the process of creating a will. It is a document created before your passing that helps direct the surviving family members to where your assets will be transferred to. This document can be nearly all-encompassing, including vehicles, property, bank accounts, and more. A trustee is named to help transfer assets to the beneficiaries upon your death, allowing surviving family members to avoid probate in most cases.
What if Assets are Held Jointly?
Generally, a “right of survivorship” is included when assets are titled jointly. This inclusion means that the property is transferred to the surviving owner when one of the joint owners dies. Though it will require proper documentation to prove that the surviving owner now holds those assets, you can avoid probate as the property is set up to transfer to the survivor.
Massachusetts views this in two ways. Joint tenancy refers to two owners listed on assets, property, bank accounts, etc. Once one of the owners, or tenants, passes, the ownership is automatically transferred to the surviving joint tenant.
Tenancy by the entirety refers mainly to married couples being viewed as one entity in ownership. While both parties are alive, both parties must sign off on transferring or selling the assets listed in tenancy by the entirety. If one of the parties dies, the surviving party now solely owns those assets. One main benefit to tenancy by the entirety assets is they are better protected in most cases if creditors pursue debt attached to them or if one of the parties files for bankruptcy.
When is Probate Unavoidable?
There are some instances when the probate process is unavoidable for families. Some examples may be when the decedent owes creditors, and assets must be liquidated to satisfy the creditors. If taxes need to be filed and paid after death, this can be another example of when probate isn’t always avoidable.
Another example can be if there is a question regarding the will’s validity. Going through probate may be necessary to establish the will’s validity to proceed with disbursing assets and paying off creditors as necessary.
If there isn’t a trust or will that labels a survivor of certain assets, those assets will need to be transferred, meaning probate is necessary. This can mean that anything from stocks and bonds to bank accounts, real estate, and personal property in which only the decedent’s name was listed as the owner must go through the probate process.
What are Other Ways to Help Avoid Probate in Massachusetts?
Jointly-held assets are best, as most of them can be transferred to the surviving spouse with minimal effort. As most paperwork is already in place before either of the joint owner’s passing, with documentation provided upon death, assets are transferred automatically.
Other things to consider are Payable on Death “POD” or Transfer on Death “TOD” options. Several bank accounts and other investment tools allow these options. Some examples are regular bank accounts, certificates of deposit, stocks and bonds, and more. Listing someone as TOD or POD can save the headache of probate upon the owner’s death.
Can a Joint-Owner Override the Will?
Generally speaking, if assets are held jointly, the joint owner can override the will’s wishes. This can mean that had the estate gone through the probate process, it may put heirs in a better position when following the will’s wishes.
For example, if a joint owner is listed on all assets, but a will is valid with instructions regarding the equal division of the assets, in some cases, the joint owner will have more than their share or all of the ownership/value of those assets.
How Can an Attorney Help Me?
As you can see from the information above, it is crucial to have proper documentation with thorough explanations as to what to do with all assets upon death. By working with an experienced attorney, you can work together to determine your ultimate priority and have peace of mind that it is worded correctly to ensure that your wishes are followed upon your death.
Working with clients for several years, we have come across a wide range of issues or obstacles that you may not have even thought of. We can work with you to ensure loopholes or confusion don’t exist for your family. Your assets are part of your legacy, and we understand the need to protect something you have worked your whole life for.
It is not always an easy conversation to have, but it is a necessary one. Let’s be proactive and work together to protect what is yours long after you are gone. Contact our office today at (781) 606-9002 to speak with one of our trusted and established attorneys. We look forward to working with you and your family.