What passes outside probate in Massachusetts?

Property titled to a trustee during the owner's life; life insurance and accounts payable to a named beneficiary — the lawful beneficiary of a life insurance policy is entitled to its proceeds against the creditors and representatives of the person who effected it (G.L. c. 175, § 125); and property held with a right of survivorship. Each passes under its own instrument, not under the will.

Does avoiding probate avoid the estate's creditors?

Not as such. The trustee of a trust whose assets are subject as a matter of substantive law to the decedent's creditors answers only an action commenced against the trustee or the personal representative within one year after the death, in the manner the section provides (G.L. c. 190B, § 3-803(b)); after the death, and subject to the settlor's right to direct the source from which liabilities are paid, the property of a trust that was revocable at the death is subject to the settlor's creditors, the funeral expenses and the statutory allowances to a surviving spouse and children to the extent the probate estate is inadequate (G.L. c. 203E, § 505(a)(3)). Whether and how a creditor reaches particular non-probate property is a question for a licensed Massachusetts attorney of your choosing.

Does a trust avoid the surviving spouse's rights?

Within six months after the probate of the will, the surviving spouse may file in the registry of probate a writing waiving the will's provisions and claiming a portion of the estate — one third of the personal and real property where the deceased left issue; $25,000 and one half of the rest where the deceased left kindred but no issue — with only the income for life of any amount above $25,000 in either case (G.L. c. 191, § 15); the estate of homestead continues for a surviving spouse and minor children who occupy the home as their principal residence (G.L. c. 188, § 7). How those rights bear on a particular trust is a question for a licensed Massachusetts attorney of your choosing.

How to Avoid Probate in Massachusetts

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Why people avoid probate

Probate in Massachusetts is a court process: it can take months, the filings become a public record, and it adds administrative cost. Passing assets outside probate can be faster, more private, and simpler for your family — though it takes planning while you're alive.

Common ways Bay Staters avoid probate

A funded revocable living Trust

Assets retitled into a revocable living Trust pass to your beneficiaries outside probate, while you keep full control during life. “Funding” — actually transferring assets in — is what makes it work.

Beneficiary, POD & TOD designations

Retirement accounts, life insurance, and many bank and brokerage accounts let you name a beneficiary (or “payable-on-death” / “transfer-on-death”), so they pass directly to that person without probate.

Joint ownership with survivorship

Property owned with a right of survivorship passes to the survivor at death, outside probate. How the deed or the account is titled decides it.

A deed to the trustee

Real property reaches a trust by a deed to the trustee or by the owner's declaration that the owner holds it as trustee (G.L. c. 203E, § 401); property so titled passes by the trust's terms at death, outside probate, and a deed to the trustee of a trust for the grantor's benefit does not end the grantor's existing homestead (G.L. c. 188, § 10). Whether it fits depends on your facts and is a question for a licensed Massachusetts attorney.

Small-estate options

When the estate is only personal property — a motor vehicle and other personal property worth no more than $25,000 — an interested person may, after 30 days from the death and with no petition for a personal representative filed, settle it as voluntary personal representative on a sworn statement filed with the court (G.L. c. 190B, § 3-1201) — simpler than a full administration.

The catch: it all depends on titling

A plan only avoids probate for the assets actually titled or designated correctly — a Trust that isn't funded, or an account with no beneficiary, can still end up in probate. Coordinating titling across everything you own is where mistakes happen. This page is general information, not legal advice; a free role check can show you where you stand, and a Massachusetts attorney can review your titling.

General information about Massachusetts law, not legal advice.

Frequently asked questions

What passes outside probate in Massachusetts?: Property titled to a trustee during the owner's life; life insurance and accounts payable to a named beneficiary — the lawful beneficiary of a life insurance policy is entitled to its proceeds against the creditors and representatives of the person who effected it (G.L. c. 175, § 125); and property held with a right of survivorship. Each passes under its own instrument, not under the will.
Does avoiding probate avoid the estate's creditors?: Not as such. The trustee of a trust whose assets are subject as a matter of substantive law to the decedent's creditors answers only an action commenced against the trustee or the personal representative within one year after the death, in the manner the section provides (G.L. c. 190B, § 3-803(b)); after the death, and subject to the settlor's right to direct the source from which liabilities are paid, the property of a trust that was revocable at the death is subject to the settlor's creditors, the funeral expenses and the statutory allowances to a surviving spouse and children to the extent the probate estate is inadequate (G.L. c. 203E, § 505(a)(3)). Whether and how a creditor reaches particular non-probate property is a question for a licensed Massachusetts attorney of your choosing.
Does a trust avoid the surviving spouse's rights?: Within six months after the probate of the will, the surviving spouse may file in the registry of probate a writing waiving the will's provisions and claiming a portion of the estate — one third of the personal and real property where the deceased left issue; $25,000 and one half of the rest where the deceased left kindred but no issue — with only the income for life of any amount above $25,000 in either case (G.L. c. 191, § 15); the estate of homestead continues for a surviving spouse and minor children who occupy the home as their principal residence (G.L. c. 188, § 7). How those rights bear on a particular trust is a question for a licensed Massachusetts attorney of your choosing.

General information about Massachusetts law, not legal advice.