I’m Paul Bernstein, an attorney with the Bernstein Law Group. And for over 25 years, we have helped families in Massachusetts protect and plan for what’s most important to them. Today, we’re going to talk about one of the things clients have asked us about over the last several decades, and that’s probate court avoidance.

What is probate court?

Before we get to the top three reasons, let’s talk about what probate court is. Probate court happens when someone passes away. It is the governmental process that transfers ownership of property to the rightful heirs. Probate court does other things as well, but for today, that’s what we’ll be focusing on.

I had a colleague that had a somewhat different definition. He defined it as a lawsuit that you file against yourself for the benefit of disgruntled heirs, creditors and attorneys. That may or may not be true or have some validity to it. But let’s now talk about the top three reasons why people would want to avoid the probate court process and certainly don’t want their family to have to go through it


1. It takes time

The first reason is time. What do I mean by time? Well, just to get started in the probate court process and get someone appointed as the personal representative, the new term for executor in Massachusetts, can take a good month and a half to two months.

And that’s assuming no one comes out of the woodwork, contesting the appointment or arguing against the person getting appointed as a personal representative. That’s the first component of time. The other component of time is how long the actual process itself can take. There have been many cases we’ve worked with and that we’ve heard of that took years to get through.

2. A very public process

It’s also a very public process. And that’s the second issue. People talk about the public nature of probate court. Anyone can go to any probate. And they can ask to see any probate court file and these files will contain a lot of personal information.

You can find out not only who’s inheriting what, but also the value of those assets. There are unscrupulous people out there that look at most of the court filings at the courthouse. And the reason is that they’re looking for opportunities to go after the beneficiaries and try to possibly get at their inheritance. So the public nature is another reason to avoid probate.

3. The high cost

The third, and certainly not the least reason is the cost. We never know how much a probate court process will cost. We use a rule of thumb when we talk to our clients. We say, assume it’s going to be about 3% of the value of the property going through probate court. That’s for court costs and attorney fees, and possibly executor fees.

Massachusetts doesn’t state what an attorney and an executor can charge. They just say it has to be a reasonable amount. Some states have set amounts that can range from 3% to 4%. So you never know how much it’s going to cost, but often it can be a significant expense. So those are the three top reasons that we hear from clients of why they would want to avoid the probate court process.

What most people prefer

We often ask our clients whether they want to have a family controlled process if something happens to them, or a court controlled and government controlled process. Most people we talked to prefer the former, the family controlled process. They want it to be as easy as possible: private, cost effective, and moving at their pace, not the court’s pace.

If you have any further questions or want to reach out and talk, don’t hesitate to contact us. We’ll be happy to talk to you.

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