Inheritance Without a Will in Massachusetts
When you are considering what you need for an estate plan, it is important to understand what will happen under state law if you do nothing.
What is Intestate Succession?
If you do not have a will you are considered "intestate." The laws in the probate code that determine who inherits from your estate are called intestacy laws.
In general, the intestacy laws favor your closest family first, beginning with your spouse, then children if you are not married to their other parent, then parents, siblings, and sometimes even cousins.
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Distribution of assets if you are married with children of the marriage
This is the most common and straightforward scenario. 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 all right on its face. 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. What many people overlook, however, is that time goes by and your spouse may re-marry and have other children. This could leave your children without the legacy you meant for them to have.
This also may not match your wishes when your children are adults. This is especially important if you have family assets that you want to make sure stay in the family. This could include interest in a family business, a family vacation property, or other real estate.
The most common way people address these issues is through a trust or living trust. In the trust you can allow the surviving spouse to use income from the assets but preserve 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
The first $100,000 and half of your probate 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 a few things.
First, 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 your spouse. This means already the bulk of your estate will go to a person who is not the biological or adoptive parent of your other child or children.
Second, though the intestacy laws will provide your children with an inheritance, if they are minors, they cannot receive an inheritance directly.
You can specify what you want to go to your children in your will. You can also set up a trust to hold and manage those assets until they reach whatever age you think they will be ready to manage the inheritance themselves.
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. If you have no surviving parent at the time of death, your assets will be divided among your siblings in equal portions. If you have no siblings or children, grandchildren, or great grandchildren of your siblings, your assets will be divided among the next closest group of relatives, usually your first cousins.
Once you move beyond parents and siblings into nieces and nephews or cousins, you can have a large number of people trying to divide up assets. This can get messy and increase the expense to your estate of dealing with the courts. That, in turn, only decreases what you can leave to your family members.
If you are unmarried and have children, they will receive all of your assets. But the same problems apply if you do not have an estate plan. I they are minors, the court will have no direction from you about who you want to raise them. They also will need a trust or conservator to manage their inheritance.
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