Intestate Distribution in Massachusetts

There are many commonly held fallacies about what happens to the property of someone who dies without a Will, referred to as dying “intestate.” Does the state decide? Does the spouse decide? Does the state get the property? The actual answers are simpler, and more intuitive, than you may expect. This article will provide a general introduction to the laws of “intestate succession” in Massachusetts (for those dying on or after March 21, 2012, the effective date of the current law), with future articles delving further into the specifics of intestacy.

Who Takes?

The first and foremost question is often, who is entitled to the decedent’s real and personal property? The Massachusetts Uniform Probate Code (“MUPC”) sets forth a specific guide to distribution based on descent that attempts to mimic what most people would have likely intended in disposing of their property. But remember, intestate succession is “one-size-fits-all” and does not account for the decedent’s actual intent or the nature of relationships between family members. Moreover, intestate succession applies to any property not disposed of by a Will, and therefore may apply if a valid Will does not fully distribute an estate.

In short, property is left to the decedent’s heirs in varying amounts depending on whether the heir is a spouse, a descendent (including children), a parent, a parents’ descendant (i.e. siblings, nieces and nephews), or other kin. The size of an heir’s intestate share depends, in large part, on the degree of familial relationship between that heir and the decedent. Thus, it should come as no surprise that, where a decedent is survived only by his spouse and their young child, the surviving spouse takes the entire state. In contrast, where a decedent has no spouse or living children but is survived by many grandchildren and great grandchildren, each of those heirs will receive only a fraction of the estate.

Descendants (i.e. children, grandchildren, etc.) take “per capita at each generation,” meaning that each living member of a particular generation who stands to inherit will takes in an amount equal to all other members of that generation who also stand to inherit, as opposed to a share based upon the number of members of that particular “branch” of the family. For example, Grandmother dies survived only by three grandchildren: Ann, Beth, and Cam. Grandmother’s daughter, Wanda, mother to Ann and Beth, predeceased Grandmother. Grandmother’s son, Xavier, father of Cam, also predeceased Grandmother. “Per capita at each generation” provides that Ann, Beth and Cam, each take an equal one-third share in Grandma's estate, as opposed to Ann and Beth each taking a quarter through Wanda, and Cam taking half through Xavier.

The MUPC addresses all family structures and provides a distribution scheme that attempts to address the needs and concerns of various heirs. Those distribution schemes are too numerous to summarize here. We invite you to contact us with specific questions.

Does the Property Ever Go to the State?

In very limited and unusual circumstances, the decedent’s property will pass, or “escheat”, to the Commonwealth. However, in order for this to occur, a decedent must die intestate, without a living spouse, living children (including any descendants), parents, siblings (or their descendants), grandparents, aunts and uncles, cousins, or “next of kin” as “computed according to the rules of civil law.” MUPC § 2-103(4). Then, and only then, will the property escheat to the Commonwealth (or, possibly, directly to The Soldiers’ Home, a state-funded care facility for veterans).

For more answers about the laws of intestacy, or to file for appointment of a Personal Representative of an intestate estate, please feel free to give us a call today.