The adoption of the Massachusetts Uniform Probate Code (MUPC) in Massachusetts has created many changes in the rules and procedures of estate administration. One of the main changes in the area of probate is the split between the formal and informal probate processes. Where there was once just probate, there are now two forms of estate administration and the use of either one will depend largely on the size of the estate and the complexity of its administration.

As the name indicates, informal probate is the less complicated form of estate administration under the new law. It allows for the administration of a will and the distribution of assets according to that will with little to no court intervention in the process. On the other hand, formal probate is used when the probating of a will is more complex, the estate is relatively large, or there are issues that need to be decided by a probate judge. Because of the added court participation, formal probate is usually a longer and more costly route.

One of the benefits of the MUPC is the ability to shift from one form of probate to the other. If a complication arises in the administration of an estate in informal probate, it can shift to formal probate in order to remedy the situation and then return to informal once it is resolved. Likewise, if an estate starts in formal probate and all issues involved have been settled, the estate can be moved into informal probate for the duration of the administration of the estate.

This part in the series will focus less on what is in a decedent’s probate estate and more on what isn’t.

As a general rule, anything devised through a will, or given through intestate distribution is considered the probate estate, but there are certain transfers that avoid this distinction. These transfers include:

1. Trusts – trusts made during the decedent’s lifetime can be used as instruments of probate avoidance and any asset or property placed in the name of that trust can be transferred according to the wishes of the decedent. For more information regarding trusts please refer to the Trusts Series of this blog.
2. Marital Property – generally, property owned jointly with a spouse will automatically transfer directly to the surviving spouse without the need to pass through probate.
3. Payable on Death Accounts (PODs) – accounts containing POD provisions will be automatically transferred to the beneficiary named in that provision once proof of death of the original owner of the account is furnished to the financial institution.
4. Life Insurance Proceeds – much like PODs, life insurance proceeds will automatically be paid to the named beneficiary as soon as proof of death of the insured is furnished.

These represent just a few examples of the types of transfers and will-substitutes that automatically avoid probate. The utilization of these instruments, as well as other estate planning tools can be a powerful way of avoiding the probate process.