In my initial meeting with clients I often hear “we do not have any estate plan.” While they may not have a personalized estate plan that they have established, I always inform them that Massachusetts already has a plan in place for you. This plan is call Intestate Succession. Intestate succession presupposes the manner in which someone would want their estate to flow in the absence of a formalized plan. The problems with intestate succession are that they do not take into account the personalized needs of the decedent, or the goal of most people to minimize their need for a formal probate process.
Under the Massachusetts Intestate Plan, the surviving spouse would receive:
- The entire estate if
- No descendent or parent of the decedent survives the decedent; or
- Any living descendent is also a descendent of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent
- The first $200,000 plus ¾ of any balance of the intestate estate, in no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent.
- The first $100,000 plus ½ the balance of the intestate estate, if all the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has 1 or more surviving descendants who are not descendants of the decedent;
- The first $ 100,000 plus 1/2 of any balance of the intestate estate, if 1 or more of the decedent’s surviving descendants are not descendants of the surviving spouse.
Under the Massachusetts Intestate Plan, heirs other than the surviving spouse would receive any part of the intestate estate not passing to the decedent’s surviving spouse.
If there is no surviving spouse, assets pass in the following order to the individuals designated below who survive the decedent:
- to the decedent’s descendants per capita at each generation;
- if there is no surviving descendant, to the decedent’s parents equally if both survive, or to the surviving parent;
- if there is no surviving descendant or parent, to the descendants of the decedent’s parents or either of them per capita at each generation;
- if there is no surviving descendant, parent, or descendant of a parent, then equally to the decedent’s next of kin in equal degree; but if there are 2 or more descendants of deceased ancestors in equal degree claiming through different ancestors, those claiming through the nearest ancestor shall be preferred to those claiming through an ancestor more remote. Degrees of kindred shall be computed according to the rules of civil law.
In the above listed Intestate Succession plans, you can imagine the problems that can occur in the administration of an estate. What if the decedent owns only assets that are non-liquid in nature – the surviving spouse may be forced to sell assets to pay descendants or kin that would not have otherwise inherited under the intended plan. Having a proper estate plan in place is of the utmost importance.