If you die without a will in Massachusetts, your assets will go to your closest relatives under state "intestate succession" laws. Here are some details about how intestate succession works in Massachusetts.
Only assets that pass through probate are affected by intestate succession laws. Many valuable assets don't go through probate, and therefore aren't affected by intestate succession laws. Here are some examples:
These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will. However, if you don't have a will and none of the named beneficiaries are alive to take the property, then the property could end up being transferred according to intestate succession.
To learn more about these types of assets, go to the How to Avoid Probate section of Nolo.com or read about Avoiding Probate in Massachusetts.
Under intestate succession, who gets what depends on whether or not you have living children, parents, or other close relatives when you die. Here's a quick overview:
|
If you die with: |
here's what happens: |
| children but no spouse | children inherit everything |
| spouse but no descendants or parents | spouse inherits everything |
| spouse and descendants from you and that spouse, and the spouse has no other descendants and someone other than that spouse | spouse inherits everything |
| spouse and descendants from you and that spouse, and the spouse has descendants from another relationship | spouse inherits the first 100,000, plus 1/2 of the balance descendants inherit 1/2 of your intestate property |
| spouse and descendants from you and someone other than that spouse | spouse inherits the first $100,000 of your intestate property, plus 1/2 of the balance descendants inherit 1/2 of your intestate property |
| spouse and parents but no descendants | spouse inherits the first $200,000 of your intestate property, plus 2/3 of the balance parents inherit everything else |
| parents but no spouse or descendants | parents inherit everything |
| siblings but no spouse, descendants, or parents | siblings inherit everything |
In Massachusetts, if you are married and you die without a will, what your spouse gets depends on whether or not you have living parents or descendants – children, grandchildren, or great grandchildren. If you don't, then your spouse inherits all of your intestate property. If you do, they and your spouse will share your intestate property as follows:
If you die with parents or other relatives, but no descendants. Your surviving spouse inherits the first $200,000 of your intestate property, plus 2/3 of the balance. The rest of your property goes to your parents or other relatives in the order established by Massachusetts law.
Example: Gerry is married to Joe, and her father is still alive. Gerry owns a house in joint tenancy with Joe, and Joe is also the named beneficiary of Gerry's retirement account. When Gerry dies, Joe automatically inherits the house and any remaining retirement funds; those things are not intestate property. Gerry also owns $500,000 worth of property that would have passed under a will if she had made one. Joe inherits $400,000 worth of that property -- that is, $200,000 plus 2/3 of the $300,000 balance. The remaining $100,000 worth of Gerry's intestate property goes to Gerry's father.
If you die with children or other descendants from you and the surviving spouse, and your surviving spouse has no descendants from previous relationships. Your surviving spouse inherits everything.
If you die with children or other descendants from you and the surviving spouse, and your surviving spouse has descendants from previous relationships. Your surviving spouse inherits $100,000 of your intestate property plus 1/2 of the balance.
Example: Bill is married to Karen, and they have two grown children. Karen also has a son from a previous marriage. Bill and Karen own a large bank account in joint tenancy, and Bill took out a life insurance policy naming Karen as the beneficiary. When Bill dies, Karen receives the life insurance policy proceeds and inherits the bank account outright. Bill also owns $400,000 worth of other property that would have passed under a will, so Karen inherits $250,000 worth of that property -- that is, $100,000 plus 1/2 of the $300,000 balance. The remaining $150,000 goes to Bill's and Karen's two children.
If you die with descendants who are not the descendants of your surviving spouse. Your spouse inherits $100,000 of your intestate property plus 1/2 of the balance.
Example: Barrett is married to Jed and also has a 12-year-old daughter from a previous marriage. Barrett owns a house in joint tenancy with Jed, plus $200,000 worth of additional, separate property that would have passed under a will if Barrett had made one. When Barrett dies, Jed inherits the house outright and $150,000 worth of Barrett's property. Barrett's daughter inherits the remaining $50,000 share of Barrett's property.
If you die without a will in Massachusetts, your children will receive an "intestate share" of your property. The size of each child's share depends on how many children you have, whether or not you are married, whether your children are also the children of your spouse, and whether your spouse has any children from a previous relationship. (See the table above.)
For children to inherit from you under the laws of intestacy, the state of Massachusetts must consider them your children, legally. For many families, this is not a confusing issue. But it's not always clear. Here are some things to keep in mind.
This can be a tricky area of the law, so if you have questions about your relationship to your parent or child, get help from an experienced attorney.
If you die without a will and don't have any family, your property will "escheat" into the state's coffers. However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won't go to the state if you leave a spouse, children, grandchildren, parents, grandparents, siblings, nieces, nephews, or cousins. (See Massachusetts General Laws, Chapter 190B § § 2-102 and 2-103.) If a veteran without heirs dies while a member of a Massachusetts Soldiers' Home, the property will go to the legacy fund for that home. (See Massachusetts General Laws, Chapter 190B § § 2-105.)
Here are a few other things to know about Massachusetts's intestacy laws.
To learn more about intestate succession, read How an Estate Is Settled If There's No Will.
You can find Massachusetts's intestate succession laws in the Massachusetts General Laws, Chapter 190B, Article II. If you want to read the law, you can search the Massachusetts General Laws from the website of the Massachusetts Legislature.
For more about estate planning, go to the Wills, Trusts & Probate section of Nolo.com.
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