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What Happens if You Die Without a Will?

You are Married And Have Children From Another Relationship​​

As with the prior example, real property and bank accounts that you own jointly with your spouse will go to your spouse automatically- no problem.  Your life insurance proceeds will go to whoever you have designated- also something you can take care of without a separate legal document like a will or a trust.

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, 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 trust, as part of your estate plan.

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, that money will be paid to whoever you have designated as a beneficiary.  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 Road to Peace of Mind Estate Planning

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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.

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 an estate plan, and if you die without a will, the laws of the Commonwealth of Massachusetts will create an estate 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 too lay out here what happens if you do nothing.  If that looks like what you want, then you are all set- if not, give us a call so we can get you on the road to peace of mind.

(781) 784-2322
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