Passing Without a Will

One question we always get asked is what happens if I die without a will? And that is a really good question. Most people just assume that when they pass without a will their estate will just be divided up without any problems. Unfortunately, it is far more complicated. First lets go over some basic vocabulary so that our discussion about wills makes more sense.

A person who passes with a valid will in place is testate and the person who created the will is the testator. A person who passes with no will is intestate.
* Note that a person who has passed can also be referred to as the decedent

The person appointed by the court, or in a will, to manage the estate of the decedent is the Personal Representative (previously known as an executor or administrator prior to the adoption of the Massachusetts Uniform Probate Code)

Descendents are the children or grandchildren of the decedent.

Intestate Distribution is the statutory scheme provided by law that dictates how an estate will be distributed when the decedent passes intestate.

In 2012 Massachusetts adopted the Uniform Probate Code, or in short MUPC. One thing the MUPC did was change the rules of intestate distribution in Massachusetts.

First, lets look at what happens if a spouse survives a decedent:
*If the decedent has a surviving spouse, but is not survived by parents or descendents then the surviving spouse takes the whole estate. However, there is an exception. The exception is in a case where the surviving spouse has descendents from a prior relationship. If the exception applies then the surviving spouse takes the first $100,000 plus half of the remaining estate, and the other half of the estate goes to the decedent’s nearest heirs.

Next lets look at how shares are divided to descendents:

*The MUPC changed the way shares of an estate are divided to descendents. Under the MUPC shares to descendents are divided under what is known as a distribution per capita at each generation. For instance take this example: There are four descendents, A, B, C, and D and each was supposed to get $25,000 as a share of the estate. Descendents A, B, and C each have one child and D has two children, all grandchildren of the decedent. Prior to the distribution of decedent’s estate, A passes away. Prior to the MUPC, A’s share of $25,000 would have passed in whole to his child, however, under the new MUPC, A’s share is divided equally between all of the grandchildren.

Many clients have informed us that they do not like the new distribution schemes under the MUPC, however, the easiest way to avoid these new schemes is just to have a valid will in place. To reemphasize, the MUPC distribution scheme only applies to decedents who pass away intestate so avoiding these schemes is a simple fix, have a valid will in place that expresses your wishes and simplifies things for the loved ones you leave behind. Consult with a local estate planning attorney who can help you create a valid estate plan. Many attorneys, such as Levine and Piro, offer free consultations. Contact us now to schedule a consultation, Saturday appointments are available upon request.