By Elliott Topkins, Esquire
12/15/11
You will be interested in knowing that Massachusetts has recently adopted new probate procedures, which generally streamline and make more “user-friendly” the rather lugubrious process of dealing with the Probate and Family Court. In the past decade the Norfolk Probate and Family Court has moved from sharing space with the Registry of Deeds in Dedham to a modern facility near the 128 Train Station in Canton.

Despite these improvements, I would advise that people take steps to avoid probate, because it adds delay and extra costs, which are many times unnecessary. A long time ago, a lawyer named Norman Dacey created a stir with his book “Avoid Probate,” which was based upon creating oral revocable trusts for your assets, with yourself as the trustee, and your spouse or kin as successor trustees. While revocable trusts are good vehicles for avoiding probate, the oral variety has proven fraught with peril and resulted in litigation and hard feelings that can be avoided with proper planning and a written instrument.

I am going to list some tried and true ways of avoiding probate which you may wish to explore:

Revocable Trusts (written and executed). A properly drafted revocable trust can save not only the expense of probate but Massachusetts and Federal taxes. There are two essential elements which are important.

You need to have people in your family, or friends you can trust, to take care of your assets.

Once you establish the revocable trust, you need to go through the exercise of transferring your assets out of your personal accounts into the trust.

Grantor Irrevocable Trusts. This type of instrument is particularly effective for the elderly. Placing real property into a well-drafted irrevocable trust does not make any practical difference in terms of your current situation. You may still deduct real estate taxes that you pay to the town of Milton and if you have a mortgage, you may still deduct the mortgage interest. The advantage you obtain is that when you die, the Probate Court does not have any jurisdiction over you property. Your trustees can sell or distribute same in accordance with your wishes without “going through probate.”

Joint savings and checking accounts. Joint accounts with right of survivorship will permit you to avoid probate. Your property passes directly to your spouse or child and can be used for funeral expenses, or to pay bills you owe at the date of your death. Joint accounts are a good way to provide for people you care about without having the whole world see what you left to whom in your will.

There are many people who do not have any family members or friends whom they can use as trustees or joint tenants. These people get protection from probate, because there are rules and procedures in probate to protect against fraud and abuse.

On the other hand, if you have the right people on your side, avoiding the rigors of probate remains the best option.

For your information, I advise people concerning probate on an almost daily basis. Call my executive assistant, MaryBeth McCarthy, at (781) 849-5906 if you wish to arrange for a no-obligation initial meeting in your home or in my Braintree office.

(Mr. Topkins is an attorney with Topkins & Bevans, Braintree Executive Park, 150 Grossman Dr., Braintree, MA 02184. His blog can be found at http://realtorsresourceblog.com. His telephone number is 617/596-3184 and his e-mail address in etopkins@topbev.com.)