What happens if you don’t have a will?

February 5, 2020

Did you know that, according to the AARP, about 60% of Americans don’t have a will? What happens to those estates in the unfortunate, but inevitable, event of death?

If you die without a will or have a will that doesn’t distribute all of your probate assets, intestate succession rules determine how your individually-owned property – bank accounts, investments, and real estate – is distributed.

An estate plan replaces Massachusetts’ intestate succession rules with YOUR  wishes as to who receives your assets and when.
Without a will in Massachusetts:
If you die leaving… Then …
Parents, but no spouse or descendants Parents inherit everything
Spouse, but no parents or descendants Spouse inherits everything
Spouse and one or more parents, but no descendants •   Spouse inherits first $200,000 and ¾ of the remainder

•   Parents inherit the rest

Spouse and descendants, all of whom are also your spouse’s descendants, and your spouse has no other descendants Spouse inherits everything
Spouse and descendants, at least one of which is not a descendant of both you and spouse •   Spouse inherits first $100,000 and ½ of remainder

•   All of your descendants inherit the rest


For example, if you were married with children, and your spouse has additional children who are not yours, the intestate succession rules would require that a $600,000 probate estate be divided into:

  • $350,000 for your spouse
  • $250,000 divided evenly among all of your children; or

if at least one parent is alive, and you’re married with no children, the intestate succession rules would require that a $600,000 probate estate be divided into:

  • $500,000 for your spouse
  • $100,000 to your parent(s).

(And if your parents don’t spend the money, it will eventually be distributed through their estate to whomever they designate.)

A will allows you to control the probate process by:

  • Specifying to whom your assets are distributed,
  • Appointing a personal representative to carry out your wishes,
  • Reducing the cost of probate, and
  • Choosing a guardian for your minor children.

There are also mechanisms that evade state control of your assets:

  • Assets with a contracted beneficiary like a retirement account, life insurance policy, or pension can pass directly to a designated beneficiary. If you don’t designate specific beneficiaries, many of these contracts automatically choose them for you, most commonly a spouse, children, or parents.
  • Assets you own as a joint tenant, usually a house or bank account, pass directly to the remaining joint owners.

An estate plan can coordinate these mechanisms to make sure your assets are efficiently delivered to your heirs. In addition to controlling who receives your assets and the process by which they are distributed, an estate plan can also prepare you for a potential disability by including not only a will, but also a power of attorney, a health-care proxy with instructions, and a HIPAA release. If you have significant assets, minor children or the potential need for someone else to manage your assets, you and your heirs may also benefit from a trust.