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 very often is not 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.

Dying Without a Plan: The Basics
  • Who Gets Your Assets Without a Will
  • What Happens to Minor Children Without a Will
  • Your Disability or Incapacity
  • Estate Taxes Without a Will
  • Probate Process Without a Will
​There are some things you can do without a will. If you and your spouse own your home jointly, the surviving spouse will automatically take title. The same is true for joint bank accounts.

Many accounts also allow you to designate a beneficiary. Retirement accounts typically have beneficiary designations. Many other banks and financial institutions will allow you to fill out a "payable on death" designation.

Life insurance proceeds will also pay out according to your designations.

Probate assets are all of the other things that you own that need to go through probate before distribution. This includes personal property, any collections of value you have, interests in a business, and any cash, investments or real estate that you own in your own name.

These assets make up your estate. Your estate will be divided according to Massachusetts intestacy laws. "Intestate" means a person who does not have a will.

You can read about how state law divides property when a person dies intestate in more detail here. 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.
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.
Many people do not understand that estate planning is not just about death.  If you do not have a plan and are too injured or ill to make decisions, your doctors and your family will have to scramble to figure out how to make medical and financial decisions.  They may have to go to court to get someone appointed, wasting time that could be precious for important decisions.

Fortunately, the solution is simple.  Your estate plan should include a health care proxy, which names a person you trust to make medical decisions if you are unable to.  It should also include a power of attorney, which names a person you trust to make financial or business decisions, access your bank accounts, etc. 

Finally, 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.
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.
if you do not have a will, your family members will have to go through the probate process to distribute your estate, no matter how big or small.  Anything distributed through the probate process can take as long as a year to distribute.  Also, absent clear direction in your will, your family could end up in destructive and expensive disputes about your property and your wishes.  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.

Free Estate Planning Resource

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