Planning for Life

The Rules in Massachusetts if You Don't Have a Will

Posted by Harry S. Margolis on January 3, 2012

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By Harry S. Margolis


When Massachusetts adopted its own version of the Uniform Probate Code (MUPC) in 2012, it changed what happens to your estate if you die without a will, which is technically called dying "intestate." The results depend on whether you're married, have children, or have living parents. The rules are very specific. Here are a few examples:

  • You die leaving a spouse, no children, but surviving parents: Your spouse will take the first $200,000 plus 3/4 of the rest, and the last 1/4 will go to your parent or parents.

  • You leave a spouse and children from a prior marriage: Spouse takes first $100,000 plus 1/2 of the rest, and the remaining 1/2 goes to your children.

  • You leave a spouse and children you had together: Everything goes to your spouse.

Per Stirpes vs. Per Capita

Another interesting change is what happens if you pass away without a spouse, but with surviving children and grandchildren. Massachusetts switched from the old per stirpes method of distributing estates to what is called per capita at each generation. The easiest way to explain this difference is through an example:

You had three children, who we will call A, B and C, but B and C passed away before you. B had two children, who we will call B1 and B2, and C had three children, who we will call C1, C2 and C3.  Let's also assume that your estate after all expenses totals $900,000 to be distributed to your heirs.

Under the old per stirpes method of distribution, your estate would be divided into three equal shares of $300,000 each, with one share going to A, one share to B's children, with B1 and B2 receiving $150,000 each, and one share going to C's children, with C1, C2 and C3 receiving $100,000.

To a lot of people, this doesn't seem fair, since you're related equally to all of your grandchildren. Why should some get a larger part of your estate than others?

The result is per capita at each generation, which is part of the MUPC.  Under this approach, A would still receive his 1/3 share, but all of your other grandchildren would share the other 2/3rds ($600,000) equally, each receiving $120,000.

These rules only apply for those who die without a will. If you don't like them, you'll need to create your own will or trust.

Topics: Estate Planning, will in massachusetts, Massachusetts Uniform Probate Code

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