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What is Probate?

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Massachusetts Family Legal Planning Attorney, Andrew J. Garcia

I am asked this question frequently. “Probate” is the court-supervised process of collecting and then distributing a deceased person’s assets (their personal property such as bank accounts and mutual funds, and their real estate).

It usually includes some of the following:

  • proving in court that the deceased person’s Will is valid (if they had a Will);
  • identifying and then preparing an inventory of the deceased person’s real and personal property;
  • paying the debts and taxes of the deceased; and,
  • distributing the property according to the terms of the Will, or if there is no will then according to state law.

Probate involves paperwork and usually court appearances by attorneys (although lawyers aren’t required). Court filing fees and attorney’s fees are paid from the property of the estate.

If the deceased person left a Will, an executor will have been named. The executor is the person named to identify and collect all of the assets of the deceased person and to see that the terms of the Will are carried out.

Probate generally involves two things: time and money.   Between court costs, filing fees, and attorney’s fees, probate can be expensive. It can also take months or even years to wind through the Probate Court.

Probate is also a public forum. This means that anyone can look at the files which contain information about the property of the estate and its value. They can also learn the identities of the heirs.

For all of these reasons, probate is a process that many people want to avoid. And, it can usually be avoided by using a living trust.

To learn more about the probate process or living trusts, contact Family Legal Planning Attorney, Andrew Garcia of Phillips & Garcia at agarcia@phillipsgarcia.com or call him at (508) 998-0800.