The Massachusetts Intestate Statute
A Summary of What Happens when No Will Exists

When a person dies without a Will the Massachusetts Intestate Laws decide how and to whom the deceased’s “probate property” will be distributed. Probate property is essentially property that has no other means of being transferred after your death, other than by going through a court supervised probate proceeding.

For example, if a house is only in the name of the deceased there is no means for it to be transferred to a beneficiary other than to go through a Probate Court proceeding. If that same house is owned “jointly with rights of survivorship” with another person, upon the deceased’s passing it will automatically be transferred to the other joint owner. Jointly owned property, trust property, and property that has a beneficiary designation (such as life insurance or an IRA) are all examples of “non-probate” property.

The Default Estate Plan

The Massachusetts Intestate Laws, which are found in G. L. ch. 190, essentially provides a default Will for about 50% of the population who never get around to making their Will. The Intestacy Laws make certain assumptions about the way in which an individual generally would like his or her property distributed (whether these assumptions are right or wrong) and attempts to allocate it among the closest relatives by blood and by marriage. As you will see below, this rarely is appropriate and can create serious problems for your loved ones.

Spouse and no other Relatives

Under the Massachusetts Intestacy Laws, if the decedent has no children, and no other relatives, but leaves a spouse, the spouse automatically inherits the entire estate. For most people this will likely be okay. For others, however, perhaps they would have liked to have left at least some property to a good friend or perhaps even a favorite charity.

Spouse and Issue

The Massachusetts Intestate Laws state that if the decedent leaves a spouse and “issue” (i.e. children, grandchildren, great grandchildren, etc.), the property is divided 50/50 between them (50% is shared between the issue and 50% goes to the spouse). This often can cause the following major problems.

First, if the children are young, your property will go to them outright and be subject to the control of his or her Guardian. Perhaps your concern might be with your current spouse but more likely it will be with whoever he or she might marry in the future. It is worth noting, that this problem can be resolved by using either a Revocable Living Trust or a testamentary trust to protect the child's property.

Second, at the time of death, many children are grown up, independently wealthy and do not need any of the decedent’s property. The spouse, on the other hand, in the wake of the first spouse’s death might have lost a substantial portion of income and might need medical care. While one would hope that the children is this case would help provide for his or her parent’s wellbeing, this is often not the case. For example, the children might be in serious debt, might get sued, a divorcing spouse might go after their assets, they might have a substance abuse problem, or they simply might no longer be getting along with the surviving parent.

Spouse and a Relative

If there is a spouse, and any other relative, regardless of how remote, the spouse receives the first $200,000 from the estate and then splits the remaining balance 50/50 with that relative. The preferential order in which the relatives will inherit will be to the deceased’s (1) parents; (2) siblings and their issue; and then to the (3) next of kin (next closest relative). This is again likely to create a major problem because this scenario provides the possibility that, for example, a fourth cousin that you have never met will be entitled to a substantial amount of assets.

When the State Inherits Property

Finally, if you die with no spouse, no children, and no other relatives, then all of your property goes to the state of Massachusetts. Even if there are no other relatives who could inherit from your estate, you still could have left your assets to a favorite charity or favorite friend.