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Estate Planning Basics: 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.  The good news is that the laws will distribute your assets to different people in your family, depending on a variety of circumstances, so you do not need to worry that the state will take your stuff.  The bad news is that this very often is not what you want or what your family needs, and your family will also have to go through a more cumbersome process in the courts to distribute your assets than they would face if you have a comprehensive estate plan. ​

​But you have to start with the facts, so we have tried to lay out here what happens if you do nothing, if you are (i) a married couple with children; (ii) a married couple with children who are not all children of your spouse; or (iii) unmarried, with or without children.  How the state will distribute your assets may or may not match what you want to happen.  If that is the case, give us a call so we can get you on the road to peace of mind.
Distribution of Assets If You Are Married With Children
​Let's start with the most common scenario: you are married with children, and all your children are also the children of your spouse.  Most likely, you and your spouse jointly own your home and primary bank accounts, which will pass automatically to your spouse.  If you have life insurance, the insurance proceeds will be paid out automatically according to your beneficiary designations.  If you have retirement accounts, like life insurance, you can also make beneficiary designations, and these funds will distribute to those people without the court's involvement.  If you die without a will, your spouse will get 100% of the rest of your assets.​ 

This looks okay on its face- after all, if you and your spouse have young children you understandably trust that if something happened to you, your spouse would take care of the children.  But what many people overlook is that time goes by- your spouse may re-marry and have other children; also what happens when your children are adults?  There is nothing in the law that preserves assets for them after they have grown up.  This is especially important if you have family assets that you want to make sure stay in the family- interest in a family business, a family vacation property, etc.​  The most common way people address this is through a trust or living trust that allows the surviving spouse to use income from the assets but preserves the underlying assets for the children after the last parent dies.
Distribution of Assets if You Are Married and Have Children Who Are Not Also Your Spouse's Children
As with the prior example, real property and bank accounts that you own jointly with your spouse will go to your spouse automatically without being in your will- no problem. Your life insurance proceeds will distribute automatically according to your beneficiary designations- also something you can take care of without an estate planner.

As to the rest of your assets, the first $100,000 and half of the remaining assets will go to your spouse, and the remaining half will be equally divided among all of your children. Again, the law tries to be fair and to approximate what you would want in your estate plan, so this may not sound so bad. But remember that (i) what is by far the largest part of most people's estates- your home, your life insurance policies, and any retirement savings that you have listed your spouse as beneficiary for- will pass to a person who is not the biological or adoptive parent of your other child or children; and (ii) if your children are minors at the time, they cannot receive an inheritance directly, without someone setting up a trust vehicle to manage that inheritance until they are adults.

There is really no way to sugarcoat it- if you have children that are not either the biological or adopted children of the person you are married to, you need a will, and likely also a living trust, as part of your estate plan.
Distribution of Assets if You Are Not Married
If you are unmarried with children, all of your estate will pass to your children in equal portions.  If you are unmarried without children, your estate will pass to your parents in equal portions, or if neither of your parents are alive, to your siblings in equal portions.  If you have no siblings, the court will look for your nearest surviving relatives, usually first cousins.

If you have no children, this may not be that different from what you would want in terms of distribution of your assets.  What a will can provide you even in this instance is a clear set of directions for your family, so they do not have to spend time and money in the probate court establishing who has a right to receive what.

If you have children, especially if any of them are minors, there are key things the law will not accomplish for you if you do not have an estate plan.  First, the court will have no direction from you about who you want to become guardian for your minor children.  You should know that in all cases the court will appoint someone to be a guardian- the law will not let your children slip through the cracks like that- but without a will you lose the ability to name that person, as well as any other criteria that are important to you in raising your children (religion, education, etc). 

Second, a child under the age of 18 cannot receive money directly, and someone will have to set up a trust for your children to receive the inheritance.  You have the opportunity through your estate plan to set up a trust yourself, in which you can not only create a vehicle for your children to inherit, but also choose a trustee and set whatever guidelines for use and distribution of the funds that you think is in the best interests of your children.
Beyond Distribution of Assets: What it Means to Your Family If You Pass Without a Will
Even if the plan the state makes for you in terms of who gets your assets more or less matches your wishes, there are important things that a will, or a combination of wills and trusts, can do for you and your family members.  

Estate taxes: by not creating a plan, you may be missing opportunities to avoid or minimize the estate taxes that your heirs will have to pay.  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.  As careful plan that combines wills and trusts with an annual family gifting strategy that can takes advantage of any available tax exemption for gifts.

Probate process:  if you do not have a will, your family members will have to go through the probate process to distribute your estate.  This will include asking the court to appoint a personal representative, and if you have minor children, asking the court to decide who will be their guardian and how any assets they inherit will be held and managed until they become adults.  These are both things you can designate in your will.  If you also use trusts in your estate plan, you can reduce or even eliminate in some cases the need to involve the probate courts.  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.

Your own disability or incapacity: an elder law or estate plan should also account for what happens if you or your spouse become incapacitated, or if either of you need long term or nursing home care.  A durable power of attorney allows you to identify someone to make financial and legal decisions if you are incapacitated, and a health care proxy allows you to identify someone to make medical decisions for you.  Depending on where you are in life, you may also want to consider the use of an irrevocable trust to protect your assets in the event that you need long term care or nursing home care.

    questions about your estate? contact us

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Read more on the slnlaw blog:
  • Starting the new year right: estate plan resolutions to consider in the new year.
  • What you should consider when naming an executor  or personal representative in your will.
  • Reasons a will alone may not be enough to accomplish your goals.
  • Estate planning tips for new empty nesters.
  • Ways your estate plan goals may change after Your children graduate ​
  • What happens to all your online information and accounts after you pass? ​Addressing your digital footprint in your estate plan 
  • ​Understanding the difference between asset protection and estate planning
  • Understand how an  inheritance can  change your own estate plan ​
  • Think you don't have to worry about estate taxes? Ready why you may be ​richer than you think under the Massachusetts estate tax laws. ​
  • Your best estate plan works best if your family understands it.  Read about how to ​talk about your estate plan with your family 
  • Once you have a plan in place, learn about the ​5 major life moments  that may give you a reason to review and possibly revise your estate plan.
  • ​6 Mistakes to Avoid in your estate plan.
  • Learn about how you can reduce your estate tax burden by taking advantage of a tax exemption with annual family gifts
  • How often should you review your estate plan?
  • Learn how to make the most of your first estate planning session. 
  • Issues women should consider in addressing their estate plans.
  • Learn about some unintended consequences to your family if you die without a will in Massachusetts. ​​
  • Elder law: how to talk to your aging parents about their estate plans.
Ready to Get Started on a Plan?
We are ready to help you  put a comprehensive plan in place that meets all of your needs and your family's needs.  We have a simple process for getting you from wherever you are now to executed and final documents and your peace of mind.  It starts with an initial consultation, which is absolutely free.  You can use the button below to schedule your consultation, simply give us a call at  781-784-2322, or fill out our web form.
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Testimonials
​
"Slnlaw did a fantastic job.... Their attorneys were very friendly and knowledgeable, and I never felt pressured to purchase any service. I would definitely recommend them!"  Michael S.

"It was a pleasure working with Emily Smith-Lee... She willingly shares her expertise and always listens to her clients' concerns. Emily's caring demeanor puts people at ease immediately. The outcome of my experience was quite favorable. I would highly recommend them."  Camille B.

"SLN Law was prompt, courteous and very professional.  Emily responded quickly to my request, was very knowledgeable on the topic I needed help with and provided reasonable, sound advice.  I would definitely recommend this law firm to others and would use them again, if needed."  E.C.


​"From my first conversation with Emily, I knew I had picked the right law firm to handle my Estate Plan after having procrastinated for some time before I decided it was time to get my estate in order. Previously, I spoke with a couple other lawyers and I did not feel comfortable with their approach prior to calling Emily. Jenna did an excellent job in assessing what I wanted to accomplish and completed my will, trust and other documents in a very short time. I am so happy I made the right choice in choosing slnlaw as my estate team.."  Evelyn W.


Read more on our reviews page ​​
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(781) 784-2322

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​Sharon MA 02067

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  • Home
  • About
    • Slnlaw Offices
    • Attorneys >
      • Emily Smith-Lee >
        • 2018 Lawyer of the Year
      • Jenna Ordway
      • Rebecca Rogers
      • Aileen Konanez
      • Jack Thaler
    • Directions
    • Fees, Billing and Payment
    • Privacy Policy
    • Publications and Interviews
  • Reviews
  • Blog
  • Contact
    • Free Consultation
  • Employment Law
    • Employee Compensation and Classification >
      • Equal Pay Act
      • Independent Contractor Law
      • Massachusetts Minimum Wage Law | Minimum Wage in MA
      • Overtime Law
      • Wage and Hour Laws
    • Employment Termination >
      • Employment Discrimination
      • Employee Illness and Disability
      • Severance Agreements
      • Discrimination and Harassment Lawsuits
    • Sexual Harassment >
      • Sexual Harassment Resources
    • Non Compete Agreements >
      • Non Compete Lawsuit
      • Non Compete Review
      • Cease and Desist Letter
  • Business Law
    • Alternative Dispute Resolution
    • Business Contract Basics
    • Civil Suit Defense
    • Legal Issues for Start Ups
    • Small Business Membership
  • Estate Planning
    • Estate Planning FAQs
    • Massachusetts Estate Tax
    • Dying Without a Will
    • What Estate Planning Documents Do I Need
    • Holographic Wills
    • Estate Planning for Children with Special Needs
    • Codicil to a Will >
      • How to Make an Estate Plan
    • Estate Planning Resources