The Heritage Law Center, LLC Blog

MA Intestacy: What Happens if I Don’t Have a Will?

POSTED ON: January 7, 2011

If you want to control the distribution of your estate it is extremely important that you have a valid will. If you die without a valid will, you are said to have died “intestate” and your property will be distributed by the courts according to the Massachusetts intestacy laws. This may create distributions that are against your wishes or better judgment but, obviously, it will be a little too late to complain about it. In addition to having the courts decide “who gets what” from your estate, your heirs will also have to bear the added expense of probating your estate, having an administrator appointed and making multiple court appearances.

In Massachusetts, if you die without a will the laws of intestacy distribute your assets as follows:

1. If you are survived by a spouse and children, your spouse takes your entire estate if all of your children are of your surviving spouse.

2. If you are survived by a spouse and children but either you or your spouse also has children from another relationship, your spouse takes the first $100,000 plus ½ of any balance of the estate.

3. If you leave a spouse and a parent but no children, your spouse takes the first $200,000, and 3/4 of the remainder of the estate. Your next of kin will split the balance.

4. If you are survived by a spouse only, with no children or other relatives, the surviving spouse takes all.

5. If you leave children but no spouse, the children will take the entire estate in shares divided equally among those in the same generation.

6. If you are survived by your parents, with no spouse or children, the parents take equal shares of the estate.

7. If you leave no spouse, children or parents, shares of your estate then proceed to the brothers and sisters or descendants of deceased siblings divided equally among those in the same generation.

8. If you are survived by no one listed above, whoever is the next closest to you in kinship takes all.

9. If you are survived by none of these relations, the estate passes to the commonwealth.

The effect of an intestate distribution can have negative consequences not only in terms of you losing control but also in how it may affect your loved ones. For example, if you are married without children, your surviving spouse will not receive your entire estate if you leave a surviving parent. If your parents have taken steps to plan for elder care, a sudden distribution to them could have drastic effects, including causing them to become disqualified for Medicaid benefits.

Also, if you are survived by children then they will receive some portion of your estate when they turn eighteen. Having children receive large sums of money at such a young age is almost always a bad idea. Proper estate planning can help give their inheritance structure and delay when they will receive the whole distribution, while intestacy can not.

Further, some provisions of the Massachusetts laws of intestacy are set to change July 1, 2011. The amended laws will introduce an entirely new category of people into the laws of intestacy: “surviving descendants of the surviving spouse.” This means that if your spouse had children when he or she married you, these children are now in line to inherit an intestacy share. Perhaps that is ok with you or perhaps they have already been provided for in other ways. In any case, without a will the choice will be out of your hands.

Making a Massachusetts will is a relatively quick and inexpensive process. If drafted correctly, your valid will prevents the laws of intestacy from deciding the distribution of your estate and can provide security that the ones you love are taken care of according to your wishes.

Quit procrastinating! Contact a Massachusetts estate planning attorney today to discuss how creating a will can protect you and your family.