The new Uniform Probate Code (“UPC”), which defines the rules of the Massachusetts Probate process, was enacted by the legislature in January, 2009; however, many of the Code’s changes only recently went into effect on July 1, 2011.
Among these changes, the UPC has significantly revised the rules of intestacy, which decide what happens to your estate when you die without a will. The new rules are meant to take into account the various forms of “blended” families that are a reality in today’s society and place greater emphasis on the distributions that will take place where children from previous marriages are involved.
If you die without a will, intestate distribution generally distributes your estate among your living relatives, including your parents, spouse, issue (i.e. children and grandchildren) and other relations including siblings, cousins, nephews, nieces, etc. in order of relation. The new Massachusetts Uniform Probate Code changes these rules for deaths occurring on or after July 1, 2011.
Under the UPC, if a person dies leaving a surviving spouse, and no surviving parents or issue, the surviving spouse takes the entire estate. However, if the surviving spouse has issue which are not of the decedent (i.e. the surviving spouse has children of a prior marriage) the surviving spouse would take the first $100,000 plus half the remaining estate, with the other half going to the decedent’s siblings or other kin.
If a person dies leaving a surviving spouse and issue, the surviving spouse takes the entire estate. However, if some of the decedent’s issue are not also issue of the surviving spouse (i.e. the decedent had children of a prior marriage) the surviving spouse would take the first $100,000 plus half the remaining estate, the issue take the other half.
As you can see, the new Massachusetts Uniform Probate Code changes the way intestate distributions are divided between a surviving spouse and non-marital children. Although this may be an improvement in some scenarios, it also creates another potential outcome to consider when drafting your will. For example, perhaps you would want your surviving spouse to take your entire estate even though she has children from a previous marriage. Or, perhaps you have decided you have already taken care of your own children from a previous marriage and don’t want to include them in your estate plan. Whatever your circumstances, there is no one-size-fits-all plan and failing to create a plan means these important decisions are out of your hands.
Call our office to discuss ways we can help you plan for the future according to your wishes, not those of the state.
