Dying Without a Will in Massachusetts
What Happens if You Die Without a Will?
This is really the question, isn't it? What happens if you do nothing about your estate plan and something happens to you.
Many people are afraid to ask this question, but it is very important.
The short answer is this: If you do not make a plan, and if you die without a will, Massachusetts estate law will create a plan for you. This is called "intestate succession." It will serve to put your assets in the hands of certain family members, but very often is not exactly what you want. Without a comprehensive estate plan, your family will also have to go through a more cumbersome process in the courts to distribute your assets. Finally, you will lose the opportunity to minimize or avoid estate taxes.
Many people are afraid to ask this question, but it is very important.
The short answer is this: If you do not make a plan, and if you die without a will, Massachusetts estate law will create a plan for you. This is called "intestate succession." It will serve to put your assets in the hands of certain family members, but very often is not exactly what you want. Without a comprehensive estate plan, your family will also have to go through a more cumbersome process in the courts to distribute your assets. Finally, you will lose the opportunity to minimize or avoid estate taxes.
What Assets Are In the Probate Estate?The assets that a court has to distribute upon your passing are called probate assets, or probate property. These include anything that is not already jointly owned or subject to a beneficiary designation. The most common non-probate assets are:
Who Inherits When There Is No Will?These probate assets make up your estate. Your estate will be divided according to Massachusetts intestate succession laws. "Intestate" means a person who does not have a will.
Generally, the law will distribute everything to your surviving spouse if you are married and have no children born from another marriage or relationship. If you have no spouse or children, your assets will be divided by closest family members, starting with parents, then siblings, then cousins. You can read more specifics about how state law divides property when a person dies intestate in other situations here. What Happens to My Child if I Die Without a Will?If you have minor children and die without a will, the other parent will become the children's sole legal guardian. If something happens to both parents, the court will have to appoint a guardian. This can take time and money, lead to family disagreements, and possibly result in something you would not have chosen.
Also, if your minor children inherit assets from you, someone will have to go to court to make arrangements for a trust or custodian to hold those assets. This is because a child under 18 cannot legally hold assets or money. You can avoid both of these problems by creating an estate plan. In your will, you can name a guardian for minor children. This will still need court approval, but the process will be much easier and simpler. Also, your children will know who their guardian will be and can be cared for by that person without unnecessary transitions. Many families also set up trusts for their minor children. This avoids the need to go to court. It also ensures that some assets are preserved for your children after your surviving spouse's death. |
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Probate Without a Will
To clear up a common misconception first, a will alone does not avoid probate, but it still makes a difference. Do you have to go through probate if you have a will? Yes. Does a will make the process easier and less expensive? Absolutely.
The probate process serves three important purposes: (i) to give someone the legal authority to conduct business on behalf of the estate; (ii) to determine what assets are in the estate; and (iii) to distribute those assets, either according to a will or according to intestate succession laws.
Your personal representative: this is a role that is sometimes called the executor. With or without a will, someone needs to be appointed by the court before even seemingly simple matters like selling property can be done. Even if you have given someone your power of attorney, that will not give them any authority to act once you are no longer alive. If you have a will that clearly identifies your personal representative, this process of appointment can take place within a month or two. If you do not have a will, and especially if there is disagreement among your family about who should serve in this role, that process can take quite a bit longer.
Determining the assets in the estate: In many ways this process is the same with or without a will. However, as you are preparing the will it is an opportunity to discuss with your family members what you own and where it is located. You can also create a memorandum to keep with your will that contains important information for your personal representative.
Distributing the assets: Aside from easing the process of appointing a representative, this is clearly where there is the biggest difference between the probate process with a will and the process without. If you want something different to happen to your assets than what the intestacy laws provide, it simply will not happen without a will. If you are unmarried and have no children, figuring out and finding who the living heirs at law are can be time consuming, hold up distribution, and create conflict among your relatives.
With or without a will, anything distributed through the probate process can take as long as a year to distribute. It is estimated that the cost of the probate process can eat up 3% to 8% of the assets available leave to your loved ones.
The right combination of wills and trusts in your estate plan can ensure that at least some funds get to your family without waiting for the probate process. It can also make the court process less contentious and ultimately less expensive.
The probate process serves three important purposes: (i) to give someone the legal authority to conduct business on behalf of the estate; (ii) to determine what assets are in the estate; and (iii) to distribute those assets, either according to a will or according to intestate succession laws.
Your personal representative: this is a role that is sometimes called the executor. With or without a will, someone needs to be appointed by the court before even seemingly simple matters like selling property can be done. Even if you have given someone your power of attorney, that will not give them any authority to act once you are no longer alive. If you have a will that clearly identifies your personal representative, this process of appointment can take place within a month or two. If you do not have a will, and especially if there is disagreement among your family about who should serve in this role, that process can take quite a bit longer.
Determining the assets in the estate: In many ways this process is the same with or without a will. However, as you are preparing the will it is an opportunity to discuss with your family members what you own and where it is located. You can also create a memorandum to keep with your will that contains important information for your personal representative.
Distributing the assets: Aside from easing the process of appointing a representative, this is clearly where there is the biggest difference between the probate process with a will and the process without. If you want something different to happen to your assets than what the intestacy laws provide, it simply will not happen without a will. If you are unmarried and have no children, figuring out and finding who the living heirs at law are can be time consuming, hold up distribution, and create conflict among your relatives.
With or without a will, anything distributed through the probate process can take as long as a year to distribute. It is estimated that the cost of the probate process can eat up 3% to 8% of the assets available leave to your loved ones.
The right combination of wills and trusts in your estate plan can ensure that at least some funds get to your family without waiting for the probate process. It can also make the court process less contentious and ultimately less expensive.
Estate Tax Without a Will
By not creating a plan, you may be missing opportunities to avoid or minimize estate taxes. In Massachusetts, your taxable estate will include retirement funds, life insurance, and other assets even though they pass automatically. This means that if you have a significant life insurance policy, equity in your home or other real estate, and retirement plans for you and your spouse, you may well exceed the $1 million threshold for the Massachusetts estate tax.
A taxable estate of $1 million will result in a tax liability of approximately $36,000. A taxable estate of $999,999 will result in zero tax liability.
Your estate planning attorney can help you combine wills and trusts and gift strategies that take advantage of tax exemptions to protect your family from this cost.
A taxable estate of $1 million will result in a tax liability of approximately $36,000. A taxable estate of $999,999 will result in zero tax liability.
Your estate planning attorney can help you combine wills and trusts and gift strategies that take advantage of tax exemptions to protect your family from this cost.
Ready to Get Started on a Plan?
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