Probate is a legal process where an individual gets appointed (usually a spouse or family member) and gets given the power to identify ad gather a decedent’s assets, pay any taxes or debts owed by the deceased, and transfer remaining assets to those that will inherit them. This is all based on the decedent’s existing will, or according to Massachusetts law if there’s no will.
Some assets don’t need to go through probate, which is good news! Property that can avoid probate gets transferred to those that inherit it a lot quicker.
Common Assets that go Through Probate
Probate is required only for property that was:
- Solely owned by the deceased person (such as a car or real estate titled in that person’s name only)
- Tenants in common – a share of property owned (example: the deceased person owned an interest in a warehouse with his brother as an investment)
This property is most commonly known as the probate estate. The executor named in the will is responsible for opening a case in probate court and driving it to its conclusion.
If there’s no executor named in the will, or there’s no will, an executor will get appointed by the probate court. The executor can hire a probate attorney to help them with the court proceeding, and money from the estate can pay the attorney’s fees.
Assets that Avoid Probate
It isn’t always necessary for probate court proceedings, as other assets can get transferred without probate to their new owners.
Examples of assets that are common and aren’t required to go through probate include:
- The deceased person owned assets in joint tenancy with others, which passes the assets to the surviving owner automatically
- The deceased person owned assets in tenancy by the entirety with their spouse, which passes the assets automatically to the surviving spouse
- Pension benefits or life insurance proceeds that are payable to a named beneficiary
- Assets that get held in a revocable living trust
If the deceased person was married and owned most of their assets jointly with their spouse or planned to avoid probate, it won’t be necessary to proceed with probate court.
Joint Property Ownership
Joint property ownership is property which is owned by more than one person. There are three primary forms of joint property ownership, namely:
- Tenancy in common
- Joint tenancy
- Tenancy by the entirety
Tenancy in Common
Tenancy in common is the most common form of joint property ownership. Co-tenants equally own a share of a piece of property and equally share the maintenance costs.
Joint tenancy is also known as “joint tenancy with right of survivorship.” Joint tenancy ownership means that the deceased person’s interest will automatically get transferred to the other joint tenant if one dies. This makes the last surviving joint tenant the outright owner of the property.
A joint tenancy usually gets created by married couples wanting to avoid probate. A joint tenancy will automatically transfer from the decedent to the surviving spouse while avoiding probate court.
Tenancy by the Entirety
Tenancy by the entirety is only available to married couples who won pieces of property together. For the tenancy by the entirety to be valid, the couple needs to be married when they purchase the property and must remain married. If a couple is engaged when they purchase a property, they can’t purchase as tenants in entirety. If a couple gets divorced after being tenants in entirety, they become tenants in common.
A tenancy in entirety is similar to a joint tenancy because if one co-tenant dies, the surviving spouse automatically gets transferred the deceased’s interest. A person can’t change or sever the tenancy by transferring interest to another person.
Creditors are allowed to collect a spouse’s debts from the property’s interests, as long as the spouse is still alive.
Simplified Probate Options to Be Aware Of
There are two simplified probates available in Massachusetts.
The first is when no real estate got left by the spouse, and the property in the estate is not worth more than $25,000, minus the vehicle’s cost. The executor can be any interested person and gets authorized by the court. They will then need to complete the following process:
- Gathers property
- Pays debts
- Notifies the Massachusetts Division of Medical Assistance of the death
- Distributes the remaining property
This process is known as Voluntary Administration.
Secondly, there’s a simple process available if the entire estate’s value, fewer encumbrances and liens, don’t exceed:
- the exempt property’s combined value
- the costs of the probate
- the family allowance
- last illness
- funeral expenses
The exempt property is a property that a creditor can’t take even if there’s a debt the estate can’t pay. A personal representative gets appointed by the court, who can immediately distribute estate assets with the court and file a closing statement.
Should You Hire a Probate Attorney?
If you’re unsure of the legal processes of probate and don’t know if you can avoid probate as a spouse, get in touch with a probate attorney in Massachusetts. They understand the law and guide you in the right direction, ensuring that all processes run smoothly.
We Can Help You Sell Your Home in Probate
If you have ended in probate court and couldn’t avoid it, we can help you sell your home. We are real estate experts in the Massachusetts area and will have your best interests at heart, ensuring the correct processes get followed. We want you to grieve and not worry about how to sell your house.
We will buy your home for cash, with no obligations, no matter what condition your home is in! If you’d like to get an obligation-free cash offer, contact us today.
If you need guidance regarding where you stand in the probate process, we can get an experienced real estate agent to contact you to discuss all your options.
Call or text us on 781-309-7085 or email us so we can call you back.