What Happens When You Can’t Take It with You?

As of 2020, up to 60% of Americans had not created a will. While it may seem like a hassle that can be put off for another day, tomorrow is never guaranteed, and the hassle of dying intestate (without a last testament) is far greater than investing in the peace of mind that a will brings.

Without a will, everything and everyone that depends on you—real estate properties, minor children, and even your pets—faces an uncertain future.

Assets Unaffected by Intestate Succession

A will is only one of many tools in the estate-planning toolbox. These include, but are not limited to, living trusts, life insurance proceeds, retirement accounts, transfer-on-death securities accounts, payable-on-death bank accounts, and real estate held in joint tenancy or tenancy by the entirety.

These assets will pass either to the named beneficiary or the surviving co-owner.

While it is unlikely that you would forgo a will and focus on these more specialized tools, it is worth noting that assets sequestered by these financial instruments need not be mentioned in your will because they have already been provided for.

Who Counts as Kin?

If you die intestate, the Commonwealth of Massachusetts will seek to first establish who the personal representative for your estate. If none is named, or the named person is unavailable or unwilling to serve, this is usually the spouse of the deceased. If no spouse is available, the court will determine who will serve and collect the reasonable fee from the value of the estate. This is a time that long-lost friends and relatives may insert themselves into your last affairs.

Once a personal representative has been determined, Massachusetts law outlines who counts as close kin and in what order of precedence these relatives should inherit, often with complicated rules.
When reading the rules, keep in mind that Massachusetts gives equal weight to legally-adopted and biological children (so long as parental rights have not been relinquished) as well as to full-blood siblings and half-siblings. Grandchildren do not automatically inherit unless their parent, the decedent’s child, is deceased themselves.

Some of the rules are fairly straightforward:

• If you have children but no spouse, children inherit everything.
• If you die with a spouse but no descendants or parents, spouse inherits everything.
• If you and your spouse have descendants together, and your spouse has no descendants by any other partner, your spouse inherits everything.
• If you die with at least one of your parents still living, but have no spouse or descendants, your parent(s) will inherit everything.
• If you die with siblings but no spouse, descendants, or living parents, your siblings will inherit everything.

For spousal inheritance, the rules are somewhat complicated by the presence of other surviving relatives. You cannot excuse putting off your will with the false assumption that your spouse will ‘just inherit everything anyhow.’

• If you have a spouse and descendants, but those descendants are by someone other than your spouse (i.e., prior marriage or relationship, children born out of extramarital affairs), your spouse will inherit the first $100,000 of your intestate property and half the remaining balance. Your descendants will inherit the remaining half of your intestate property.
• If you and your spouse have descendants together, and your spouse has descendants from another relationship, your spouse inherits the first $100,000 of your intestate property and half of the remaining balance. Your joint descendants will inherit the remaining half of your intestate property.
• If you have a spouse and living parents, your spouse will inherit the first $200,000 of your intestate property and two thirds of the remaining balance. Your parents will inherit the remaining third of your intestate property.

As you can see, the law values blood or legal ties over emotional ones. Not only would you face the uncertainty of who would care for your children or beloved pet, but you would also face the possibility of your estranged siblings taking custody of them, or of your troubled child inheriting more money than would be good for her.

Need Help?

If you are ready to make your passing easier for your family by laying out your wishes, or if you need to updated your estate plan, give our office a call. Our experienced estate law attorneys can help you identify your assets, prioritize your charitable giving, and ensure that your wishes are carried out in an orderly and earnest manner.