What Really Happens to Your Estate if You Die Without a Will in Massachusetts?

Dying without a Will is called dying “intestate”. What this means is that your intentions as to who inherits your assets, who administers your estate, and who acts as guardians for any young children are determined by the Commonwealth of Massachusetts. It is often said that if you don’t have an estate plan, the Commonwealth has one for you. And as of January 2nd, 2012, the Commonwealth has an updated plan for you! That’s when the last phase of the Massachusetts Uniform Probate Code (MUPC) takes effect.

It’s estimated that nearly 65% of Americans don’t have a Will. Fred is a healthy, vibrant sixty-five year old man. He exercises three times and week, and has made a conscious effort to eat well since his recent diagnosis of diabetes. After speaking with many close friends, Lenore, Fred’s wife, insists that they both create Wills. Fred insists that he is perfectly healthy, wishing to leave the issue of estate planning until he experiences further health problems. What if Fred was to die without a Will?

If Fred dies in 2012, or later, without creating a Will or using some legal method to transfer his assets, Massachusetts law, specifically, the rules of intestacy, determine what happen to your property. After payment of debts, expenses, administration and funeral costs, your property will be distributed to your heirs according to a predetermined legal formula. The problem is that the formula that the Commonwealth uses may not end up being how you would like your estate divided. If no relatives can found to inherit your assets, they are taken by the State.

Intestacy distribution, under the MUPC, specifies that if Fred dies leaving a spouse with no children and his parents are also deceased, his spouse receives everything. But, the same scenario if Fred’s father is still alive at his passing, Fred’s wife and father will each inherit from Fred’s estate.

What if Fred passed with a spouse and minor children? Then his spouse would inherit everything, regardless of whether his parents were still living. However, if one of his children was from a previous relationship, the current spouse and ALL of Fred’s children are heirs together and inherit a portion of his estate.

Despite the changes under the MUPC, Massachusetts Wills still have a spousal elective share clause, which means you can’t disinherit your spouse in your Will. In most cases the surviving spouse can elect to get the first $100,000 or $200,000 of the estate, plus a portion of the remaining property, instead of what their spouse left in their Will.

The rules of intestacy may appear confusing and difficult to apply given your unique situation. It is always best to determine how you would like your assets to pass through a properly executed Last Will & Testament, or even a Trust. In this way, you can ensure that family members you are not close with do not end up inheriting through your estate. You may also provide for step-children in the case of blended families.

The best way to truly ensure that your family is protected and that your estate is distributed the way you want it is to consult with a knowledgeable attorney’s office, like Vickstrom Law, who specializes in Estate Planning.


  1. Herbert Bouley says:

    When my wifes 89 year old mother died in December we were surprised to find out she had no will. Her husband died long ago and her 6 children are all adults. I assume by default all 6 would share equally. Correct?

  2. Herbert Bouley says:

    BTW wifes mother lived and died in Mass

  3. Herbert, That may be correct, so long as there are no creditors that would take before her heirs, in the case her children.


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