As estate planning attorneys serving Gloucester, Rockport, Manchester by the Sea, Beverly, and all of the North Shore, we know one of the most common goals for our clients is to avoid probate. Probate in Massachusetts can be time-consuming, public, and costly. A revocable trust is often promoted as the primary way to achieve this, and while it can indeed help, the truth is more nuanced. The effectiveness of a revocable trust depends on how it’s established and whether it’s properly funded.

Under Massachusetts law, probate is the legal process of proving a will and settling an estate. If you have a revocable trust, the assets placed into the trust during your lifetime generally do not go through probate. However, if assets remain outside the trust at your death, those assets may still need to pass through the Probate and Family Court under Massachusetts General Laws Chapter 190B (the Massachusetts Uniform Probate Code).

How A Revocable Trust Works To Avoid Probate

A revocable trust—sometimes called a living trust—is a legal entity you create during your lifetime to hold ownership of assets. You can change or revoke it at any time while you are alive. When properly funded, meaning your assets are retitled in the trust’s name, those assets will pass directly to your named beneficiaries without going through probate.

Massachusetts General Laws c. 203E, § 101 confirms that a trust is valid if it is created by a competent settlor, has a trustee, has identifiable beneficiaries, and complies with state law. Because the trust—not you personally—owns the assets, those assets do not become part of your probate estate when you die.

When Probate May Still Be Required Even With A Revocable Trust

Even if you have a revocable trust, probate might still be necessary in several situations:

• Unfunded or Partially Funded Trusts: If you create a trust but fail to transfer all your intended assets into it, any property still titled in your individual name will require probate.
• Pour-Over Wills: Many people have a pour-over will, which transfers any remaining assets into the trust at death. This still requires a probate proceeding under M.G.L. c. 190B, § 3-301, though the process is typically simpler.
• Contested Estates: If disputes arise about ownership or validity of certain assets, the court may become involved even if a trust exists.
• Beneficiary Designations: Assets like life insurance or retirement accounts that do not name the trust as beneficiary may pass outside the trust and could trigger probate if no living beneficiary exists.

The Importance Of Proper Trust Funding

The key to making a revocable trust work is ensuring it is fully funded during your lifetime. This means changing titles and ownership of real estate, bank accounts, brokerage accounts, and certain personal property so they are held by the trust. For real estate in Massachusetts, this involves executing and recording a new deed transferring the property to the trustee.

We frequently see situations where a client created a trust but left significant assets out of it. Without a will, these assets are distributed under Massachusetts intestacy laws in M.G.L. c. 190B, § 2-101 and following, which may not reflect your wishes.

Why You Still Need A Will With A Trust

Even with a fully funded revocable trust, you should still have a will. The will serves as a safeguard for any assets not in the trust and allows you to name guardians for minor children. A pour-over will directs any unfunded assets into your trust, ensuring they are distributed according to your instructions.

In our practice across Essex County, we ensure that wills and trusts work together to protect your estate. The trust avoids probate for assets it owns, while the will captures anything left behind.

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Frequently Asked Questions

Does A Revocable Trust Automatically Avoid Probate In Massachusetts?
No. A revocable trust will only avoid probate for assets that have been properly transferred into the trust during your lifetime. Assets left in your own name at the time of death may still require probate.

What Happens If My Trust Is Not Fully Funded?
If your trust is unfunded or only partially funded, any assets remaining in your personal name will become part of your probate estate. Your will—or, if none, the Massachusetts intestacy laws—will determine how those assets are distributed.

Do I Still Need A Will If I Have A Revocable Trust?
Yes. A will is important even if you have a trust. It serves as a backup to transfer assets not already in your trust and allows you to name guardians for minor children.

Can Real Estate Be Placed Into A Revocable Trust To Avoid Probate?
Yes. Transferring Massachusetts real estate into your trust is a common way to avoid probate for that property. This requires a new deed transferring ownership to the trustee.

Are Retirement Accounts Placed In A Trust?
Retirement accounts typically pass by beneficiary designation, not through a trust. However, in some cases, the trust may be named as the beneficiary if it fits your planning goals.

Does A Revocable Trust Protect Assets From Creditors Or Medicaid?
No. Because you retain control over a revocable trust, the assets are still considered yours for creditor claims and Medicaid eligibility purposes. Asset protection requires other planning tools.

What Is The Probate Process If I Have A Pour-Over Will?
A pour-over will still goes through probate, but its sole purpose is to transfer unfunded assets into the trust. This can simplify the process compared to estates with no trust.

How Long Does Probate Take In Massachusetts Without A Trust?
Probate in Massachusetts can take several months to over a year, depending on complexity. A properly funded trust can significantly reduce or eliminate this delay for many assets.

Can My Trust Be Contested?
Yes. While less common than will contests, trusts can be challenged on grounds such as lack of capacity or undue influence. Proper drafting and execution help reduce this risk.

Is A Revocable Trust Public Record In Massachusetts?
No. Unlike probate, which is a public court process, the terms of a trust generally remain private, providing confidentiality for your estate plan.

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Call Troy Sullivan For A Free Consultation

At The Sullivan Firm P.C., we create estate plans that actually work for families in Gloucester, Rockport, Manchester by the Sea, Beverly, and throughout the North Shore. A revocable trust can be a powerful way to avoid probate in Massachusetts, but only if it’s set up and funded correctly. We ensure your trust is tailored to your needs, fully compliant with Massachusetts law, and coordinated with your other estate planning documents.

Call The Sullivan Firm P.C. Today At 978-325-2721 For A Free Consultation. Our Gloucester office serves clients throughout Essex County, and we are ready to help you protect your assets, simplify estate administration, and give your family peace of mind.