What Does “Intestate” Mean?
The word “intestate” might sound somewhat daunting and foreign, like most vocabulary associated with estate planning, but it is actually a rather straightforward concept. The estate of someone who dies is considered intestate if the person dies without a will. A will is generally used in order for a decedent during his or her life to draft an estate plan that will dictate how they want their assets distributed after their death. In the absence of these written instructions, the state will use the intestate succession statutes enacted by the Massachusetts legislature in order to determine how the decedent’s estate will be distributed. So, in short, intestate means that someone has died without a will. Instead of their own preferences controlling the distribution of their assets, the state’s intestate succession statutes will govern.
Massachusetts Intestate Succession Laws
Massachusetts has intestate succession laws that govern how a decedent’s estate will be distributed in the event that an individual dies without a will, their will is determined to be invalid, or their will cannot be located. Under these statutes, immediate family are favored, and friends and non-marital relationships are not considered. If the decedent had children but no living spouse, their entire estate will pass to their children. In the event that the decedent had a spouse and the decedent and their spouse only had children with each other, the spouse would inherit the entire estate. If either the decedent or the spouse, however, have children from another relationship, the estate will be split between the spouse and the children to ensure fairness. In these situations, the decedent’s spouse would inherit the first $100,000 of the decedent’s estate, plus half of whatever remains, with the other half going to the decedent’s descendants. If the decedent has both a spouse and parents but no children, the spouse will inherit the first $200,000 of the estate in addition to 75% of everything else that remains of the estate. The remaining 25% of the estate will go to the decedent’s parents. If the decedent has parents, but no spouse or children, the parents will inherit the entire estate. Finally, if the decedent has siblings, but no spouse, parents, or children, their siblings will inherit the estate.
Avoiding Probate
Whether a decedent has a will or not, their estate will have to go through probate if they own any asset in their own name and that assets does not have a transfer on death or pay on death designation. If, however, (i) assets have been transferred to a trust during life or at the time of death or (ii) an asset is co-owned with another individual at passing (for example, a suriving spouse puts her children on her bank accounts as joint owners), these assets will bypass the probate process. If you do not want your assets to be distributed in accordance with the Massachusetts intestate succession statutes, it is important that you plan accordingly and either create a valid, written will that meets all state requirements for enforcement, or create an alternative estate plan with the help of an attorney that may involve a living trust and/or joint ownership of assets. Trusts allow you to skip probate by transferring your assets out of your ownership and into the ownership of the trust so that they are no longer part of your estate. Adding co-owners with survivorship rights to other assets, such as bank and retirement accounts, will transfer the asset automatically to the co-owner upon your death. Because these assets are no longer the property of the decedent, they will not need to be settled or distributed in probate.
Contact Fisher Law, LLC, in Boston, Massachusetts
If you are ready to develop a comprehensive estate plan or require assistance with an estate planning matter, contact the Norwood estate planning lawyers at Fisher Law, LLC to schedule a consultation.
Source:
malegislature.gov/Laws/GeneralLaws/PartII/TitleII/Chapter190B/ArticleII/Section2-102
