“Probate” is a distressing term in some circles, but it is not as scary a process as it is sometimes made out to be. At Surprenant & Beneski, we advise clients with diverse backgrounds, lifestyles, and income levels about when probate is required and when it can be avoided. In this blog, we will clarify under what circumstances probate is needed if there is a surviving spouse. First, let’s clarify how probate is defined and the purposes it serves.
Probate is the legal process by which a deceased person’s will is validated and their estate is properly distributed to their heirs and designated beneficiaries, once any debts and/or taxes owed by the deceased are paid off.
Why Some Clients Want to Avoid Probate
Because probate can be a lengthy, expensive procedure, especially for high-net-worth or complex estates, many people seek ways to avoid it. In addition, some clients are uncomfortable with the fact that probate is a public process.
Specific reasons why people seek to sidestep the probate process include:
- Cost: Probate can be expensive. Because it is a legal process, it involves court costs, attorney fees, executor fees, and other related costs.
- Time: Probate can be a prolonged process, lasting anywhere from a few months to several years, particularly when it involves an estate with multiple properties that are in various states or countries, or if there are serious disputes. If the process is prolonged, the surviving spouse may be left without their rightful inheritance for months or years.
- Privacy concerns: As mentioned previously, probate is a public process. That means anyone can access the records and see what assets the deceased owned and who inherited them. For some individuals, the prospect of public scrutiny of one’s finances is unsettling. Their estate planning attorney can help them put their assets in a living trust to avoid probate.
Each of the above factors can increase the pervasive stress that surrounds the loss of a loved one. Avoiding probate may be one way a surviving spouse can lessen the load.
The Pressing Question: Is Probate Necessary with a Surviving Spouse?
Massachusetts state law answers this question equivocally since probate may or may not be avoided depending on how the couple’s assets were owned and titled as in the following examples:
Jointly Owned Assets
If bank accounts, real estate, or other assets have been held jointly with the right of survivorship, these assets will typically pass directly to the surviving spouse without probate.
Assets with Designated Beneficiaries
Assets like life insurance policies, retirement accounts, and other financial products that allow the holder to name a beneficiary can also bypass probate as long as the beneficiary designations are up-to-date.
Assets Held Solely in the Deceased’s Name
However, if the deceased spouse owned assets solely in their name without a designated beneficiary, then those assets will most likely have to go through probate, even if they will be inherited by the surviving spouse.
Fortunately for Massachusetts residents, our state allows the probate process to be simplified for smaller estates. If the estate in question is $25,000 or under (excluding the value of one vehicle), the surviving spouse will be able to deal with probate more quickly and economically.
Working With an Accomplished Estate Planning Attorney Gives You an Edge
Estate planning is about activating present resources, monetary and legal, to ready your family for the future. Working with a knowledgeable legal team like Surprenant & Beneski gives you the advantage of our years of experience and insight as you focus on not only the pleasures and potentials of the future but on its possible pitfalls. Let us assist you in taking steps now to ensure that funds will be there for you and your spouse when needed most.