Many families assume that if a home has been passed down for generations, ownership is clear. Unfortunately, that’s not always the case. If previous generations never probated their estates, your family’s real estate could be trapped in a legal mess—one that can take years and thousands of dollars to fix.
This issue is more common than you think. Families delay probate because they don’t think they need it, only to discover decades later that heirs are missing, ownership is unclear, and selling or transferring the property becomes nearly impossible.
So, what can you do to avoid this problem? Let’s break it down.
What Happens When You Don’t Probate an Estate?
Probate is the legal process of transferring ownership of assets after someone passes away. When this step is skipped, the deceased person’s name stays on the title, leaving ownership legally uncertain.
Over time, this can create serious complications:
- Missing Heirs – If family members have moved away or passed on, tracking down the rightful heirs can be a nightmare.
- Unclear Ownership – Multiple heirs may have fractional ownership, making it difficult to buy, sell, or transfer the property.
- Legal Roadblocks – If the property needs to be sold, a formal probate or court order may be required, delaying transactions.
- Increased Costs – The longer probate is delayed, the more complicated (and expensive) it becomes to resolve.
Real-Life Example: A Family’s Probate Nightmare
Recently, a client came to me with a major problem. Her family had owned two properties for generations, but no one had ever properly probated the estates. The property had been passed down informally through multiple generations:
- Her great-grandfather left the property in equal shares to his children (her great-aunts, great-uncles, and grandfather).
- Her grandfather left his share to her mother.
- One of her great-aunts also left her share to her mother.
Now, my client wanted to buy out her relatives and officially take ownership—but there was a huge problem. The family wasn’t sure who actually owned the property, not all of the previous probates had been completed, and some heirs were missing. Without proper probate, we couldn’t confirm who had the legal right to sell.
How to Avoid Estate Planning Disasters Like This
If you want to keep real estate in the family—or avoid the costly mess of untangling ownership—there are two key solutions:
1. Use a Trust for Estate Planning
A revocable living trust ensures that real estate passes directly to the chosen beneficiaries without probate. The trustee maintains control and can sell, transfer, or manage the property without court involvement. This avoids the delays, costs, and confusion of probate.
2. Probate Estates Immediately
If a trust isn’t used, filing formal probate as soon as possible is critical. Under the Massachusetts Uniform Probate Code (MUPC), informal probate does not legally determine heirs. If a property needs to be sold or transferred, a formal probate with a determination of heirs is often required.
By handling probate immediately, you:
- Ensure clear legal ownership
- Avoid missing heirs and legal disputes
- Prevent expensive delays in selling or transferring property
Key Takeaways: Don’t Leave Your Family a Legal Nightmare
- If a loved one passes away, handle probate right away to ensure clear title.
- If you want to keep real estate in the family, a trust is the best way to avoid probate entirely.
- The longer probate is delayed, the harder and more expensive it becomes to fix.
If you own property or have inherited real estate, make sure your family isn’t stuck in legal limbo. Talk to an estate planning attorney today to protect your legacy.
Need help? Contact our office to ensure your real estate and estate plan are in order!
