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  • Pamela E. Crohan, Esq.

Intestacy—What really happens to my money if I don’t have a will?

A common fear I hear from clients is “If I die without a will, the state will get all my money, right?”

No. The state will not trump your relatives as beneficiary if you die without a will. (While Massachusetts may be a priority creditor of your estate, and be due payment for a valid debt such as MassHealth, for our purposes we are referring to the value of your estate after all valid estate debts have been paid.)

Massachusetts law decides who gets what, if you die without a will and you have assets in your name alone, (without a beneficiary, joint owner, or in trust). Intestacy is the word when someone dies (the “decedent”) without a valid will, owning probate assets. In such a case, an “interested party” (certain relatives or creditors) petitions the probate court to administer the estate. There are specific filing and notice requirements, with time allowed for other interested parties to file objections. Once the court allows the petition and appoints a personal representative for the estate, the personal representative has to ascertain all probate assets, pay off debts (which may include a valid debt to the state), wrap up final estate issues, and finally make distributions as determined by the state statute (Massachusetts Uniform Probate Code, sections 2-102 and 2-103).

So who gets what? In Massachusetts, the law accounts for essentially all possible familial scenarios in making the determination, with an emphasis on the surviving spouse, and “descendants” (which most commonly refers to children /grandchildren):

Section 2-102 specifically addresses the share the surviving spouse is entitled to: The intestate share of a decedent’s surviving spouse is: (1) the entire intestate estate if: (i) no descendant or parent of the decedent survives the decedent; or (ii) all of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent; (2) the first $200,000, plus 3/4 of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent; (3) the first $100,000 plus 1/2 of any balance of the intestate estate, if all of the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has 1 or more surviving descendants who are not descendants of the decedent; (4) the first $100,000 plus 1/2 of any balance of the intestate estate, if 1 or more of the decedent's surviving descendants are not descendants of the surviving spouse.

Section 2-103 addresses the share of other relatives: Any part of the intestate estate not passing to the decedent’s surviving spouse under section 2-102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals designated below who survive the decedent: (1) to the decedent’s descendants per capita at each generation; (2) if there is no surviving descendant, to the decedent’s parents equally if both survive, or to the surviving parent; (3) if there is no surviving descendant or parent, to the descendants of the decedent’s parents or either of them per capita at each generation; (4) if there is no surviving descendant, parent, or descendant of a parent, then equally to the decedent’s next of kin in equal degree; but if there are 2 or more descendants of deceased ancestors in equal degree claiming through different ancestors, those claiming through the nearest ancestor shall be preferred to those claiming through an ancestor more remote. Degrees of kindred shall be computed according to the rules of civil law. If, in the rare circumstance there is not one person to take as described above, the statute only then provides for the Commonwealth to take possession of the estate funds:

Section 2-105 (no taker): If there is no taker under the provisions of this article, the intestate estate passes to the commonwealth; provided, however, if such intestate is a veteran who died while a member of the Soldiers’ Home in Massachusetts or the Soldiers’ Home in Holyoke, the intestate estate shall inure to the benefit of the legacy fund or legacy account of the soldiers’ home of which the intestate was a member.

As you can see, the statute primarily provides for the surviving spouse and/or children, while taking into account issues such as second marriages and deceased children. While, in my opinion and experience, the current statute is reasonable and follows a distribution plan that most individuals include in their estate planning documents, a properly executed Last Will and Testament is always preferred, as it provides for a more efficient process, and ensures your specific wishes are carried out on your terms.

Having a will is not only important to make sure that your assets go to your loved ones, it also helps cut down on expenses of probate and additional court proceedings to authorize your personal representative to take care of your estate.

The attorneys at Senior Solutions help clients with estate planning: including wiils, trusts, health care proxies and powers of attorney. We also assist Personal Representatives of Estates in Greater Boston and South Shore of Massachusetts in fulfilling their responsibliites under the law. Attorney Kathy L. McNair is also appointed as a Public Administrator in Suffolk County, for those that die without a will, without any known family. In addition, we frequently serve as the named Personal Representative of estates. Senior Solutions is an Elder Law and Estate Planning Law Firm serving the Boston, Massachusetts area. We meet with clients in either our Belmont or Hingham offices.

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