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What kind of assets are subject to the probate process?

Let us say that you only have a couple of years left before retirement. Your children are out on their own, and your spouse is already making post-retirement vacation plans.

You should be happy, but you feel unsettled. Perhaps the time has come to prepare your will and get some peace of mind. However, making a will means going through probate, except for certain assets.

How it works

In the state of Massachusetts, creditors can lay claim to what is owed to them out of your estate for 12 months following the date of your death. Because of this rule, your probate cannot end before 12 months have passed. The personal representative you name will have no authority until the court issues a formal appointment.

Assets that go through probate

Any assets that belong to you alone, meaning for which beneficiaries are not named, must go through probate. These will likely include cash or any cash accounts, personal property, real estate and assets held as tenants in common.

Assets excluded from the probate process

Assets that will not be subject to probate include the proceeds from your life insurance policy; accounts with named beneficiaries, such as your IRA or 401(k); investment accounts with Transfer on Death or TOD designations; trusts; and joint ownership assets with right of survivorship.

Avoiding delays

The naming of beneficiaries is an important task. You can likely name an alternate who would receive the property if a primary beneficiary cannot do so. If you fail to name a beneficiary for a particular account, the funds in the account will go into your estate for eventual distribution, although this will cause delays.

Seeking help

The purpose of probate is the settling of your estate, no matter what its size, and the distribution of the remaining assets according to your instructions. Just as an attorney will help you prepare your will, you can rely on legal guidance to help your personal representative manage the probate process.

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