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Wait, if I have a Will I still have to go through Probate?

A frequent question we are asked is “why do we still need to go through probate if the person signed a Last Will and Testament?”

First, it’s important to distinguish what probate is.  Probate is the process by which any asset individually owned by someone when they pass away is passed to their beneficiaries after payment of any claims or expenses.  “Individually owned” means that there was no beneficiary listed on the account, there was no surviving joint owner, and that the property was not owned by a trust.  Therefore, probate is not required for every individual who passes away, especially not for those people who arrange their ownership in a way that avoids probate.

Why You Need To Keep Your Beneficiary Information Up-To-Date

A Will only applies to property passing through probate.  The Will directs where that property goes.  A Will cannot control property that is outside of probate.  So for example, if you have a Will that says everything goes to first my spouse, then my children, but your life insurance policy still lists your mother as the beneficiary, your mother will receive the life insurance benefits even though your mother isn’t even named in the Will.  (This actually touches on a huge common mistake in estate planning where your beneficiaries are not lined up because of out-of-date or missing beneficiary designations).

If you do not have a Will, and you do have property passing through probate, the state has a backup plan called intestacy.  Intestacy is the state’s prediction of what they think someone’s Will would say if that person signed a Will (but what might be right in most cases may not be right in all cases).  So, for example, if a married individual survived by a spouse and children doesn’t sign a Will, the state says that the spouse is automatically the beneficiary of the estate (assuming that the children are also children from that spouse and that spouse doesn’t have other children not related to the decedent). 

Why You Need A Will

So, if you want everything to go to the people who benefit from intestacy does that mean you don’t need a Will?  No.  Every state is different but the two big reasons someone would still benefit from a Will is that the Will allows the Personal Representative to serve in that role without a surety bond — making it easier for them and less expensive to start the process.  Second, if the estate includes real estate, the Will can avoid the necessity of a License to Sell which is what you need to sell real estate out of an Estate (unless you have a will giving the Personal Representative the Power to Sell). 

Wills can also be used for other purposes like exercising a power of appointment held in a trust or designating guardians if you are survived by a minor child.  In larger estates where a federal estate tax or Massachusetts estate tax may be payable, a Will can direct how that tax burden is paid and which assets should be used to pay the tax bill. 

Probate FAQs/Wills FAQs

Some of the other common questions people ask about probate and Wills include the following:

Why Would I Have Both A Will And Trust?

Depending on the situation, establishing a living revocable trust may be a better option than just relying on a Will alone.  Assets that pass directly to the trust can avoid probate and the trust can establish terms for how those assets are managed, which can be especially important when you have young children as beneficiaries and the trust manages assets until they are older.  But even if you set up a revocable trust, you would still want to have a Will in place that acts as a backup transfer device stating that if there is any asset that ends up going through a probate process, transfer that asset to your trust to be administered along with all the assets in the trust. 

Are Probate Records Public?

Another frequent concern of people is privacy, and we are frequently asked “are probate records public?”  Probate records are public documents that are registered, and in Massachusetts, the documents are frequently available online — making them very accessible.  If you don’t want your assets, the value of those assets, or who you choose to leave those assets to, publicly available, a trust may be a better option for you.

Why Probate A Will?

Lastly we are asked, “Why probate a Will?”  Hopefully, this article has given some insight to why a Will is submitted to probate, but another reason is that a document labeled “Last Will and Testament” is not actually a functional Will until after someone has passed away, a petition is submitted to probate court, the Will is reviewed by the Court to ensure that it was executed properly, interested parties (family members) are given a chance to contest the Will, and lastly, the court issues an order or decree stating that the document is recognized as the individual’s last Will and Testament.  For if you write out a Will, but fail to have it properly witnessed, or you sign it while you are mentally incapable of understanding what is taking place, or the only reason you signed the document is because you were under the undue influence of someone, even though that document is labeled your Will it may never be recognized in Court as a valid Last Will and Testament.

We are always here to answer your questions about wills, trust, estate tax planning, estate planning, probate and more, so don’t hesitate to reach out for estate planning and probate help!