Your Will does not avoid probate - clarifying a common misconception
There is a common misconception that a Will is written to avoid probate - unfortunately, that is not the case and I think the confusion may stem from a misunderstanding of the difference between a Will and a Trust. To be clear: your Will is designed to provide a set of instructions to the probate court in the hopes of streamlining the estate administration process. In other words, your Will is intended to be used for probate, not to avoid it.
So what can I do to avoid probate?
You have a few options, but the most common solution is to set up a living trust. Trusts come in all shapes and sizes, but most clients just need a standard revocable trust (not to be confused with an irrevocable trust) to get the job done.
It’s also important to understand how your assets are titled. For example, if your home is owned jointly by you and your spouse, then (in most cases) it will avoid probate on the first spouse’s death, but will go through probate on the second spouse’s death if they leave it as is. Financial accounts are a little different because, unlike real estate, they allow you to name death beneficiaries (also known as pay on death or transfer on death designations). The same applies for life insurance policies, which have a death benefit that can be paid directly to a beneficiary without requiring court involvement.
What do you typically recommend to avoid probate?
If your children are all responsible adults, there are no family conflicts, and you have a modest estate (for example, no estate tax issues), then you’ll likely be fine naming your children as the death beneficiaries of your financial accounts and/or life insurance policies directly.
For real estate and businesses, the living trust (as mentioned above) is your best solution for passing the property to the next generation without probate or court involvement.
If you would like further clarification as to what goes through probate (and is directed by your Will) and what goes through your trust (and therefore avoids probate), then please feel free to give me a call at 781-202-6368 or email me at JLento@PerennialTrust.com.
I’m always happy to help,
Joseph M. Lento, J.D.
Your local estate planning attorney
Perennial Estate Planning
477 Main Street
Stoneham, MA 02180
