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Intestacy and Estates

The importance of estate planning and the benefits of preparing a Will have been discussed in our previous blogs. Proper estate planning and a carefully drafted Will can ensure that your last wishes are carried out as you intend, wish and instruct. But let’s not kid ourselves, facing one’s mortality is hard. Many of us find it difficult to think of the end of our life and estate planning is often on the bottom of the “to do” list. A recent article from reported that nearly six out of ten Americans do not have estate planning documents. This is true across all socio-economic classes.  If you are part of that nearly 60% group of Americans without a Will, what happens to your possessions when you pass away? In Massachusetts, if you pass away without a Will, this is commonly known as dying “intestate”. Any assets or property you own at death will be probated in the county you resided in at date of death (if you lived in Essex County your estate will be probated as intestate in the Essex County Probate Court, if you lived in Middlesex County then it would be in the Middlesex County Probate Court and so on). Distribution of your property would be determined by statute and given to your closest legal heir(s) in a proportion as determined by Massachusetts intestacy law.

commerce-acts-books-477966-mThe Massachusetts intestacy statute is contained in the Massachusetts Uniform Probate Code (the “MUPC”).[1] The MUPC sets forth how your property will be distributed according to the makeup of your surviving family members. Many people believe that the Massachusetts intestacy statute simply divides the property in an estate equally among the surviving relatives, but the determination of “who gets what” is more complicated than that.

If the deceased was married, the portion of the decedent’s estate the decedent’s surviving spouse is entitled to depends on whether or not there are or were children; and in some circumstances, further affected by whether or not the decedent has a surviving parent. If there are no living children and no surviving parents of the deceased, a surviving spouse will get the entire estate. There is a second situation where the surviving spouse gets the entire estate: if all of the children of the decedent are also children of the surviving spouse and the surviving spouse has no other living descendants that are not descendants of the decedent. It gets even more complicated depending on whether or not there is surviving spouse, parents, or children or brothers and sisters of the deceased.  Here are a couple of examples:

If there is a surviving spouse and any of the descendants of the decedent are not descendants of the surviving spouse, the surviving spouse is entitled to the first $100,000 of the estate and ½ of the any remaining balance of the estate. The surviving descendants of the decedent take the remainder, if any.

If there is no surviving spouse the estate passes in the following order:

  1. to the decedent’s descendants;
  2. if there is no surviving spouse or surviving descendants then to the decedent’s parents;
  3. if there is no surviving spouse, surviving descendants, or surviving parent then to the decedent’s siblings or their descendants; or
  4. if there is no surviving spouse, surviving descendants, surviving parent, or surviving siblings or their descendants then to the next of kin.

The intestate distribution may be further complicated if there are heirs who predeceased the date of death of the person whose estate is to be probated intestate. Determining the proper distribution of estate assets under the Massachusetts intestacy statute can be a complicated endeavor. Careful review of the Massachusetts intestacy statute and skilled legal assistance can help navigate the complexities of the intestate distribution rules. Perhaps the best choice is to preplan and prepare a Will and other relevant estate planning documents.

[1] The effective date of the MUPC was March 31, 2012.

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