What is Probate?

Kristen R. Testaverde, Esq.

Clients, friends and family members often ask me to define the term “probate.”  Put simply, probate is a local transaction that happens in the local probate court.  For example, if the deceased’s permanent residence was in Norfolk County at his/her date of death, the probate of the estate of the deceased would take place at Norfolk Probate and Family Court. 

During the probate process, an executor of a will or an administrator of an estate is appointed.  Under the new Uniform Probate Code to be adopted in Massachusetts, this person will be referred to collectively as the “Personal Representative.”  That person will seek to be appointed and file the will and other necessary documents with the probate court. 

What is important to understand about the probate process is what assets will be part of the probate estate.  As probate can be a long and often expensive process, it is important to understand what assets will be tied up and what assets pass by operation of law (automatically at death by law).

An asset is subject to probate when the asset is held solely in an individual’s name and/or is passed on through the will.  For example, a bank account held solely in your name will be part of your probate estate.  Conversely, a bank accound held jointly with another person will pass automatically to that other person upon your death.  Your home is another example; a piece of real estate held individually will be subject to the probate process, but if you hold property as joint tenants or tenants by the entirety, the real estate passes to the other tenant without being part of the probate estate.  Life insurance can also pass outside of probate if a beneficiary of the policy other than the estate of the deceased individual is named.   Assets in a trust established and funded before death are not subject to probate, but assets that “pour over” from a will to a trust are subject to the probate process. 

Another important distinction is between probate and taxes.  As noted above, probate is a local transaction in the local probate court.  Taxes are governed by state and federal authorities.  All of a person’s assets at death, whether or not part of the probate process, are subject to taxation.  In short, avoiding probate does not avoid taxes, which is a common misconception.

Avoiding probate does have its benefits however, as avoiding probate avoids the publicity of the process (estate proceedings are public records with the court), the delays of the probate process, and the cost of estate administration.

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