Legal Question in Elder Law in Massachusetts

Re: avoiding probate

If the will's maker intends to pass any assets which might end up in the probate estate into his or her trust, then the trust MUST be named in the will to receive those assets. The assets which are already in the trust before death don't get probated.

Since a deed which creates a life estate also transfers assets before death, there is no need to mention it in the will.

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Re: avoiding probate

If the house was properly funding into a living trust by deed during the lifetime of the settlor, it doesn't go through probate. Generally, this means that the trust, or a certificate, needs to be recorded at the registry, and a deed into the trust needs to be recorded as well. and that the trust itself is properly drafted to avoid probate.

if a "life estate deed" is properly prepared and recorded, this also avoids probate.

doesn't matter what the will says about real estate, if the testator properly conveyed that real estate during his or her lifetime.

note the repeated use of the word "properly". I've seen this screwed up a bunch of times.

Re: avoiding probate

The deed controls whether a property goes through probate or not.

The Will or Inter Vivos Trust issue is a two part matter, if the deed is not in the name of the trust, then the Will controls. For tax purposes, the House will be part of the estate for tax purposes.