Like most people, you are probable aware of the need to have an estate plan in place. Although there is a long list of reasons why having an estate plan in place is beneficial, one of the most common – and important – reasons is to prevent you from dying intestate. Dying intestate simply means dying without at least a Last Will and Testament in place directing the distribution of your estate assets. To truly understand the importance of creating your estate plan it helps to know what happens to your assets if you die intestate in Massachusetts.
The Probate Process — Testate vs. Intestate Estates
When a person dies, his or her estate must go through the legal process known as probate. Probate serves several important functions, including:
- Authenticating a Last Will and Testament if one was left behind
- Identifying and locating the decedent’s estate assets
- Notifying creditors of the estate and allowing them the opportunity to file claims against the estate
- Ensuring that estate taxes are paid
- Distributing the estate assets to beneficiaries and/or heirs of the estate
When a decedent left behind a Will the estate is referred to as a “testate” estate. If no Will was left behind the estate is an “intestate” estate. Probating an intestate estate is often more difficult and more time consuming for several reasons. First, all legal heirs to the estate must be determined and located. Sometimes, this can take a significant amount of time if there are no immediate survivors such as a spouse or children. Second, in an intestate estate the decedent did not appoint an Executor which means a Personal Representative must be appointed by the court. If more than one person volunteers, or if no one volunteers, it can be problematic. Finally, it is often necessary to sell estate assets in an intestate estate in order to create the required intestate distribution of assets. This can result in additional expense and time during the probate process.
When You Die Intestate, Who Will Get Your Assets?
When a decedent dies intestate, the state intestate laws of the state in which the decedent was a resident at the time of death determines what happens to the decedent’s estate assets. In other words, if you die intestate, the Commonwealth of Massachusetts decides who gets your assets. The Massachusetts intestate succession laws will distribute your assets as follows:
If you die with:
- Children but no spouse – your children inherit all your assets
- Spouse but no descendants or parents – your spouse inherits everything
- Spouse and descendants – spouse inherits half and descendants inherit the other half
- Spouse and parents but no descendants – your spouse inherits the first $200,000 plus half of the balance and your parents inherit the other half of the balance.
- Parents but no spouse or descendants – parents inherit everything
- Siblings but no spouse, descendants, or parents – siblings inherit all assets
If you die without leaving behind a spouse, descendants, parents, or siblings, the law requires the court to look for more distant relatives such as grandparents, aunts, uncles, and cousins. If, after a diligent search, the court is unable to locate any living relatives, your estate assets will “escheat” to the state. In other words, the Commonwealth of Massachusetts will get your assets.
If you die intestate, you effectively give up the right to decide what happens to your estate assets. If you promised a friend, favorite niece, or even a charity something when you die, that promise will go unfulfilled. You also give up the right to decide who oversees the probate of your estate as well as the right to prevent family heirlooms or other assets from being sold during the probate process. If any of these decisions matter to you, the only way to ensure that you get to make them is to make sure you do not die intestate.
If you have additional questions or concerns related to what happens when you die intestate in Massachusetts, contact the experienced Massachusetts estate planning attorneys at DeBruyckere Law Offices by calling (603) 894-4141 or (978) 969-0331 to schedule an appointment.
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