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Elder Law Myth Busters


by Elizabeth A. Caruso, Esq.

Myth or Fact? I have a Will so my family is all set and won’t have to go through probate.

This is a MYTH.

In Massachusetts, if you have a Will, also known as a Last Will and Testament, that distributes all your assets, you are guaranteeing that your family will have to go through the probate process. This is because a Will only tells the Probate Court how you want your assets to be distributed, but it does not give anyone the power to actually distribute them. That power is granted by permission from the Probate Court. 

In your Will you can name a Personal Representative, formerly called an Executor or Executrix. This is the person who would be in charge of administering your estate. After you pass away, your Personal Representative petitions (or seeks permission) the Probate Court to have the authority to gain access and collect your assets and distribute them out to your beneficiaries as you have dictated in your Will. This process of seeking permission from the court can be quite time consuming. If you have real estate in your Will, you are potentially adding the necessity of additional court permission, which adds even more time. Your Personal Representative will also need additional specific permission in order to distribute the assets to your beneficiaries.

An important concept to keep in mind when doing your estate planning is that your Will only controls what is in your name alone when you pass away. This means that if you own real estate, bank accounts, or the like, jointly with a spouse, child, sibling, etc., those jointly held assets are going to automatically pass to the other person(s) after you pass away. Additionally, if you have beneficiary designations on bank accounts, retirement accounts, life insurance, annuities, etc., those assets will pass to the named beneficiaries automatically by contract.

Having assets in a trust can also transfer your assets to your beneficiaries without the need of Probate Court interference. Trusts are an alternative way to own property that cannot, or you do not want to, be held jointly or a beneficiary cannot be added to. It is very popular for people to transfer their real estate into a trust to avoid potential extra Probate Court scrutiny and cost.  There are several different types of trusts, and an elder law attorney can explain these differences and help you choose what type of trust would work best for your situation and estate planning goals. For many people, transferring property to a Trust does not change their day-to-day lives in any way, but comes with the added benefit of knowing that your loved ones will not have to go through a lengthy probate process to receive your assets after you pass away.

Elizabeth A. Caruso, Esq. is an attorney at Legacy Legal Planning, LLC, in Norwell, Massachusetts. She has been practicing estate planning, probate, and elder law on the South Shore for over a decade. If this article has sparked questions for you, please feel free to reach out via phone 781-971-5900 or email elizabeth@legacylegalplanning.com to schedule a time to discuss your unique situation.