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Legal Notes

Avoiding probate

Mary came to my office very shortly after her mom died. In her will, mom left her entire estate, which consisted of her car, a small checking account, a C.D. with about $50,000 and household furnishings, to Mary. Because Mary’s name was not on the bank accounts or on the title to the car, Mary needs to probate her mother’s estate to acquire those assets. If only Mary’s mother had come to see me before her she died, we could have entirely avoided the expense and time of probating her will.

Assets owned jointly, from houses to cars, from bank accounts to stocks, pass automatically to the named beneficiary without the need of probate. In that regard, consider owning assets jointly (or have the account be payable on death) with another person. You can also designate a beneficiary on your life insurance policy, your 401K and your IRA. Just be sure to update your beneficiary designation as circumstances change. My goal in my representation is to ensure that all assets that can be jointly owned are jointly owned, and all assets to which a beneficiary can be designated is so designated, so that all that is left when a person dies are the household furnishings (it has been my experience that families are usually capable of dividing the household furnishings without too much difficulty). The only time it gets more complicated is when the intended beneficiary depends on needs-based public benefits, which may be affected by the receipt of assets. Even then advance planning with the help of an attorney can allow for a worry-free transition.

What does it mean that Mary has to probate her mother’s estate? Probating an estate in Massachusetts usually takes a year or more because creditors have a year (after the death) in which to come forward to assert their claims. Probating an estate is time-consuming and it is expensive. To file the Petition at Court, send out the required certified letters and publish in the newspaper, the estate has easily spent over $500, never mind the attorney’s fees.

Another useful tool to avoid probate is the establishment of a trust. The assets and property in the trust pass on relatively quickly, especially when compared to the probating of an estate. However, the drafting of a trust can be expensive, and owning assets jointly or having the assets be payable on death may accomplish the wishes of the maker of the trust.

I advise my clients to sign the title to the car, but not to fill out any other information (the date, the mileage, the new owner, etc.). In the scenario above, Mary could have inserted all the necessary information on the title before her mother died and the car would be hers. There is a form that should also be signed (and not filled out) called a MVU-24. This form provides an exemption from the sales tax or use tax when a car is transferred as a gift.

The views expressed in this column represent general information. To address your particular and specific needs consult your own attorney. If you need help with referral to an attorney, contact the Franklin County Bar Association at (413) 773-9839 or the Worcester County Bar Association at (978) 752-1311.

Call Community Legal Aid at 413-774-3747 or toll-free 1-855-CLA-LEGAL (1-855-252-5342) during their intake hours (Monday, Tuesday, Thursday, and Friday from 9:30 a.m. to 12:15 p.m. and Wednesday from 1:30 p.m. to 4:15 p.m.). Apply for help anytime online by visiting www.communitylegal.org. Franklin County Office is located at 55 Federal St, Greenfield, MA. The office is no longer open for walk-ins. Services are free to people age 60 and older.