How to Avoid Probate Pitfalls in Massachusetts

Probate is often viewed as a daunting and complex process for families who have recently lost a loved one. In Massachusetts, the probate process involves validating a Will (if one exists), inventorying the decedent's assets, paying any debts and taxes due, and finally, distributing the remaining assets to the proper beneficiaries. Although it seems straightforward, at times there are complications that can lead to delays, unexpected costs, and family disputes. Knowing how to navigate the potential pitfalls of probate can make a significant difference during an already emotionally grueling time after the loss of a loved one.

Common Probate Pitfalls in Massachusetts

1. Lack of a Valid Will

One of the most common issues that leads to probate complications is the lack of a valid Will. If you die without a Will, Massachusetts intestacy laws outline how your assets will be distributed. For a full overview of Massachusetts Intestate Succession Laws, you can read our legal blog here. These intestacy laws are based solely on the decedent’s lineal descendants. It has nothing to do with the decedent’s wishes or relationships whatsoever. For example, let’s say you have no spouse or children, your parents are deceased, and you have one long-lost brother that you no longer communicate with. You have several friends that you see regularly that you would want to receive your assets if you passed. Unfortunately, if you died without a Will under this scenario, your brother is your only legal heir under Massachusetts intestacy laws, and he would inherit your entire estate in this scenario. This is why creating a Will and an all-encompassing estate plan is paramount to ensuring that your wishes come to fruition after you die.

Even when a Will exists, if it is not properly executed in accordance with the rigid execution requirements as codified in M.G.L.c §2-502 (signed by the Testator and witnessed by two disinterested individuals), it could either be invalidated by the court or contested, which will delay the process even further and potentially spur litigation. This is primarily an issue when people attempt to create a DIY Will through an online platform. While these are generally much cheaper alternatives, they do not account for Massachusetts-specific laws or the satisfaction of the execution requirements. Similarly, Massachusetts prohibits Holographic Wills. A Holographic Will is one that is handwritten by the Testator, and not witnessed. Any Will that is not signed in the presence of two witnesses, such as a Holographic Will, will not be accepted by any Massachusetts Probate Court. Click here to read our full legal blog outlining the top mistakes people make when creating their Will and how you can avoid them.

The best and only way to ensure that your Will is legally sound and tailored to your specific needs is to work with an experienced estate planning attorney. At Lane, Lane & Kelly, LLP, we specialize in personalized estate planning services that are customized to the unique needs of our clients across the Greater Boston area and all throughout the South Shore of Massachusetts. Contact us today to get started with your own unique estate plan.

2. Owning Assets in Your Individual Name Without Named Beneficiaries

Probate assets are those that are titled solely in the decedent’s name. These assets must go through the probate court process before they can be distributed to the legal heirs, or the beneficiaries (devisees) named in the decedent’s Will. Examples of probate assets include:

• Property titled solely in the decedent’s name (e.g., real estate or vehicles).
• Bank accounts (checking, savings, retirement accounts, brokerage accounts, etc.) solely in the decedent’s name without a Pay-On-Death (POD) designation.
• Personal possessions and tangible property such as jewelry, art, or furniture. For a detailed overview outlining the difference between tangible and intangible property and its importance to your estate plan, read our full legal blog here.

In a strategic effort to keep assets out of the probate court, it is highly recommended to own certain assets as joint tenants (with rights of survivorship), or to name POD beneficiaries on your financial accounts. If you own your own home, it is advisable to hold title with your Spouse as tenants by the entirety (available only to married couples in Massachusetts) to ensure that upon the death of either spouse, the surviving spouse will own the home outright. For a full overview of the different ways to hold title to property in Massachusetts, you can read our legal blog post here.

We also recommend creating a Revocable Living Trust as part of your estate plan if you own your own home. This ensures that upon the passing of you and your spouse, your home stays out of the probate court and gets distributed exactly as you wish, based on the terms of the Trust document. Utilizing a Revocable Trust also keeps the contents of the trust and your ultimate distributions completely private, whereas all documents filed with the probate court become public record, available for anyone to see. Click here to read our full blog post outlining all of the benefits of including a Revocable Trust as part of your comprehensive estate plan.

For any of your bank accounts, such as checking accounts, savings accounts, or retirement accounts that you own individually, it is crucial to name what is called a POD beneficiary. Without a named POD beneficiary, your account will go through the probate process and be tied up for potentially several months or upwards of a year before it can be distributed to the proper beneficiaries. In comparison, if you name a POD beneficiary on your accounts, all that beneficiary has to do is provide the financial institution with a death certificate, and the contents of the account can be distributed immediately. Naming POD beneficiaries not only keeps these assets out of probate, but it significantly streamlines the distribution of your assets to your intended beneficiaries.

Not only is it imperative to name POD beneficaries on all of your accounts, but it is also crucial to keep these designations up to date in the event of any major life changes. A recent Massachusetts Superior Court case outlined this warning loud and clear in a recent decision in Charles Schwab & Co, Inc. v. Kamio, et al. Click here to read more about this case and its legal implications. 

3. Failing to Appoint the Right Personal Representative

Your Personal Representative is fiduciary named in your Will that is responsible for carrying out and administering your estate, and ensuring that everything is distributed correctly. If you appoint someone who lacks the time, organization, or willingness to carry out these duties effectively, it can cause delays, errors, and even legal issues. When selecting your Personal Representative, just remember that you are making a PACT with them. PACT is an acronym that we use to help guide clients through the factors to consider in selecting a Personal Representative:

• P: Proximity – The proximity and closeness of the person to you, your home, your banks, and your beneficiaries, the better the person will be in their capacity as Personal Representative. This includes not only geographical proximity, but also the closeness the person has to you and your estate from an emotional standpoint.
• A: Ability – Their competence and willingness to handle the tasks involved in managing your estate. To avoid delays, make sure you select an individual that is  competent with general finances and banking. Bonus points for selecting someone that has previously been involved with large-scale transactions (such as buying or selling a home). This is especially important if you own real estate, as your Personal Representative will have to facilitate the sale of your property.
• C: Character –Consider their trustworthiness, making sure that you select someone that consistently acts with integrity. Remember that your Personal Representative will have to act with a fiduciary responsibility, which is a high ethical standard. This means they will be obligated to act in the best interests of your estate, rather than their own personal interest. Make sure that you select someone that you know is capable of making these types of difficult decisions.
• T: Temperament – Their maturity and steadiness to handle the duties and any potential conflicts effectively. You need to select someone that is capable of putting their emotions aside when making important legal and financial decisions.

It is crucial to appoint not only someone that you trust as your Personal Representative, but also someone that is willing to take on the fiduciary responsibilities and duties that come with carrying out your estate. In some cases, families may benefit from hiring a professional or a probate attorney to serve in this role, especially when the estate is large or complex

4. Not Accounting for All of the Decedent’s Assets

A common mistake is failing to track down and inventory all of the decedent's assets, including real estate, bank accounts, investment portfolios, personal property, and digital assets. Missing assets could lead to incomplete distributions, legal challenges, or claims from creditors after the probate process has already ended. Part of the probate court filings include what is called a “Bond” form (MUPC Form 801). In this form, you must provide an estimated value of any real estate owned by the decedent, and an estimated value of the personal estate of the decedent. The type of probate filed with the court (formal, informal, or voluntary) can also be dependent based on the value of the decedent’s assets. Failing to adequately estimate these values can have repercussions on the estate as well as on the value of the Bond guarantee required from the Personal Representative.

Make sure that you work with an experienced probate attorney, such as the ones at Lane, Lane & Kelly, LLP, to ensure that a thorough search is conducted of all potential assets of the decedent. An attorney can also assist in obtaining any necessary appraisals and valuations for assets such as real estate, jewelry, artwork, etc. This is often an easily looked element of the probate process, but it must be done properly to avoid issues down the road.

5. Tax, Debt, and Creditor Mismanagement

The current Massachusetts estate tax exemption is $2 million, and the current federal exemption as of 2025 is $13.99 million which is up from $13.61 million in 2024 (and is scheduled to further increase to $15 million in 2026 under the One Big Beautiful Bill Act (OBBBA), signed into law in July 2025). Massachusetts probate will necessitate additional state tax filings if the total value of the estate exceeds the $2 million dollar state exemption, and/or an additional tax filing if the estate exceeds the federal exemption. This makes estate planning crucial for anyone that comes close to these thresholds, as they can work with an experienced attorney to lower their taxable estate, or potentially avoid any estate tax altogether.

Along with taxes, all of the decedent’s debts must be settled before distributions to any legal heirs or beneficiaries in a Will can be made. It is the job of the Personal Representative to pay any outstanding debts. This can include even simple creditor claims such as outstanding cell phone bills, electric bills, or credit card bills. Another reason it is beneficial to utilize a Revocable Trust and keep assets out of probate is due to the public nature of the probate court. All court filings are a matter of public record, available for anyone, including creditors, to see.

A required element of filing probate is providing adequate notice by publishing in a local newspaper informing the public that the decedent has passed away. When this happens, creditors are notified and they have 12-months from the date of death to make a claim and attach it to the estate. Mishandling any tax payments or outstanding creditor claims can lead to legal complications, tax penalties, and other financial issues that subsequently reduce the value of the total estate that the beneficiaries receive. A Personal Representative should work closely with an attorney to ensure that all tax forms are filed correctly and timely to avoid any penalties, and that all debts and creditor claims are appropriately managed.

How a Probate Attorney Can Help Avoid Probate Pitfalls

A probate attorney’s expertise is invaluable in guiding families through the complexities of probate in Massachusetts. Here's how a trusted attorney at Lane, Lane & Kelly, LLP can help:

• Legal Guidance: An attorney ensures that all probate documents are filed correctly and on time, helping to avoid delays, mistakes, and unnecessary costs.
• Asset Management: An attorney can assist in locating and inventorying all of the decedent's assets, ensuring nothing is missed.
• Tax and Debt Compliance: An attorney can assist in filing any necessary estate tax forms and paying any outstanding creditor claims, ensuring that all tax and debt obligations are met before asset distributions are made.
• Efficient Distribution: By ensuring that all legal and financial matters are handled properly, an attorney can help streamline the distribution of assets to the rightful beneficiaries in the most timely and efficient manner.

Navigating probate in Massachusetts can be complicated, but avoiding common pitfalls with the help of a skilled probate attorney can make the process much smoother. Whether it’s filing the necessary court documents, inventorying assets, or managing debts, hiring an experienced legal professional ensures that your loved one’s estate is handled efficiently and competently.

By working with the experienced attorneys at Lane, Lane & Kelly, families can rest easy knowing that the estate of their loved one will be handled with the utmost care and compassion. If you need assistance navigating the probate process or you just lost a loved one and are in need of legal guidance, our team is ready to help. Our firm has been helping Massachusetts families navigate the probate process across the Commonwealth since 1938, providing trusted legal guidance when they need it most. Contact us today to find out why we were voted as the Best Law Firm on the South Shore of Massachusetts!

This blog is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By reading this blog you understand that there is no attorney client relationship between you and Lane, Lane & Kelly, LLP.