What is probate? | Meredith Havard, Esq. | TEDxNewbury Street Women

Summary

Meredith Hav, a probate and estate administration attorney, explains the probate process and why estate planning is essential. Probate determines the distribution of assets after death, often causing stress and expense for families, especially if no estate plan exists. She discusses ways to avoid probate, such as creating a will or trust, and emphasizes the importance of proper asset management and beneficiary designations. Hav highlights how proactive estate planning can ease the burden on loved ones, reduce court involvement, and ensure that one’s wishes are honored, even in cases of incapacity.

Takeaways

• 😀 Probate is the court process that determines who owns assets after death and how they are distributed.
• 😀 The process includes appointing a personal representative who manages the estate and validates the will, or determines heirs if there's no will.
• 😀 Probate is required when assets are owned individually or have no designated beneficiary or survivorship rights.
• 😀 If assets are jointly owned or have a designated beneficiary, they pass directly to the surviving party without probate.
• 😀 The probate process can be lengthy, expensive, and public, often taking months or even years if contested.
• 😀 Probate can lead to disputes among heirs, creditors claiming debts, and the exposure of private information through court records.
• 😀 One way to avoid probate is through estate planning, including a will, trust, or joint ownership of assets.
• 😀 Estate planning documents, such as a will or trust, ensure assets are distributed according to your wishes and can name a guardian for minor children.
• 😀 If you pass away without a will (intestate), your assets are distributed according to state law, which may not align with your wishes.
• 😀 Estate planning is also crucial for incapacity, as you can designate someone to make medical or financial decisions for you through a healthcare proxy or durable power of attorney.
• 😀 While estate planning may seem overwhelming, it is a proactive way to ease the burden on your loved ones and ensure your wishes are followed after your death.

Q & A

What is probate?

Probate is the court process used to determine who owns a deceased person’s assets and how those assets should be distributed.

Why does probate cause fear or confusion for many people?

Many people misunderstand probate, and the process can feel overwhelming due to its complexity, required paperwork, expenses, public nature, and emotional timing after a loved one’s death.

What determines whether an asset must go through probate?

Asset ownership determines probate. Assets solely owned by the deceased with no beneficiary designation or rights of survivorship are probate assets.

Which assets avoid probate automatically?

Assets with joint ownership, rights of survivorship, or named beneficiaries—such as joint bank accounts or life insurance policies—pass directly to the surviving party and avoid probate.

What happens if someone dies without a will?

Dying without a will is called dying intestate. In this situation, state intestacy laws dictate who inherits the assets, which may conflict with the deceased's wishes.

What are the main probate options in Massachusetts?

Massachusetts provides three primary probate methods: voluntary administration, informal probate, and formal probate. The appropriate method depends on asset types, real estate ownership, and whether a will may be contested.

Why is probate often time-consuming?

Probate can take months or even years due to court backlogs, potential disputes, required notices, inventorying assets, addressing creditors, and handling unexpected issues like missing heirs or unknown accounts.

Why might someone want to avoid probate?

Avoiding probate helps reduce stress, expense, delays, public disclosure of private matters, creditor exposure, and the potential for will contests or unwanted heirs stepping forward.

How can estate planning help avoid probate?

Estate planning tools—such as wills, trusts, joint accounts, and beneficiary designations—allow assets to pass directly to intended recipients, reducing or eliminating the need for probate.

What estate planning documents help in case of incapacity?

A durable power of attorney and a healthcare proxy allow individuals to name trusted people to make financial and medical decisions if they become incapacitated.

What is the role of a personal representative in probate?

A personal representative, sometimes named in the will, is responsible for managing the estate, securing assets, paying debts and taxes, filing required documents, and distributing assets.

Why is reviewing asset ownership important when planning an estate?

Ownership determines whether assets must pass through probate, so reviewing titles and beneficiary designations ensures assets pass as intended and reduces complications for loved ones.

What challenges do families face when a loved one dies without estate planning?

Families may struggle to locate assets, determine whether probate is necessary, pay expenses, or resolve disputes without guidance from estate documents, adding stress during an already emotional time.