When someone dies without a will or trust in Massachusetts, they have not opted out of estate planning. They have just let the state do it for them. And the state’s plan almost certainly does not match what they would have chosen.
Dying without a will is called dying “intestate.” It happens to roughly 6 in 10 American adults, and the consequences ripple through families in ways that are predictable, preventable, and often devastating.
Massachusetts Intestate Succession
The Massachusetts Uniform Probate Code (M.G.L. c. 190B, §§ 2-101 through 2-103) sets out a rigid hierarchy for distributing assets when there is no will. The formula depends entirely on who survives you.
If you are married with children, and all children are also your spouse’s children: Your spouse inherits everything.
If you are married with children from a different relationship: Your spouse receives the first $100,000 plus half of the remaining estate. Your children split the rest.
If you are married with no children but your parents are alive: Your spouse receives the first $200,000 plus three-quarters of the balance. Your parents receive the remainder.
If you are unmarried with children: Your children inherit everything in equal shares.
If you have no spouse, children, or parents: The estate passes to siblings, then nieces and nephews, then grandparents, then aunts, uncles, and cousins. If no relatives can be located, the entire estate escheats to the Commonwealth of Massachusetts.
Who Gets Left Out
The intestacy formula is rigid. It does not account for relationships that fall outside legal definitions:
- Stepchildren receive nothing unless legally adopted, as we explain in our article on stepchildren’s inheritance rights.
- Unmarried partners are completely excluded, regardless of how long you have lived together or how intertwined your lives are.
- Close friends or anyone outside the family tree are not recognized.
- Charities or organizations you cared about receive nothing.
- Children from whom you are estranged inherit the same share as children you are close to.
- Stepgrandchildren, godchildren, and other non-legal relationships are invisible to the formula.
The law does not consider your wishes, your relationships, or your values. It follows a formula.
What Assets Go Through Intestate Succession?
Not everything you own is subject to intestate succession. Only assets that would pass through probate are affected. These are generally assets held solely in your name with no beneficiary designation and no joint ownership.
Assets that typically avoid intestate succession include:
- Life insurance with a named beneficiary
- Retirement accounts (401(k)s, IRAs) with named beneficiaries
- Bank accounts with a payable-on-death designation
- Property held as joint tenants with right of survivorship or as tenants by the entirety
- Assets held in a living trust
Everything else, including real estate in your name alone, individually held bank accounts, personal property, and vehicles, passes through probate according to the intestacy formula.
The Probate Process Without a Will
When there is no will, the probate court must determine who has the legal authority to manage the estate.
Under M.G.L. c. 190B, the court appoints a personal representative. The surviving spouse typically has first priority, followed by other heirs.
The process involves:
- Filing a petition with the Probate and Family Court in the county where the deceased lived
- Inventorying and appraising all assets
- Notifying creditors and paying valid debts
- Filing state and federal tax returns
- Distributing the remaining assets according to the intestacy formula
In Massachusetts, probate can take anywhere from 9 to 18 months for a straightforward estate. If there are disputes about who qualifies as an heir, if real estate is involved, or if the estate is large enough to trigger estate tax, the process takes longer and costs more.
The Financial Cost of Dying Without a Plan
Probate expenses in Massachusetts typically consume 3 to 5% of the estate’s value. Those costs include court filing fees, personal representative compensation, attorney fees, appraiser fees, and publication requirements.
For an estate worth $500,000, that could mean $15,000 to $25,000 in costs that a simple revocable living trust could have avoided entirely.
Beyond direct costs, intestacy creates indirect financial harm. Assets may need to be sold to fund distributions. Real estate may sit in limbo while the probate process plays out. And family members may spend their own money on legal fees to resolve disputes.
Minor Children Face Additional Complications
If both parents die without a will, the court decides who raises your children. Massachusetts law gives the Probate and Family Court authority to appoint a guardian under M.G.L. c. 190B, Article V. That guardian may or may not be the person you would have chosen.
Additionally, minor children who inherit assets outright will have those assets managed by a court-appointed conservator until they turn 18. At 18, they receive the full amount, with no restrictions on how they spend it.
A trust can delay distributions, set conditions, and protect the inheritance from youthful decision-making. Intestacy cannot.
The Estate Tax Risk
Massachusetts imposes an estate tax on estates exceeding $2 million. The federal exemption for 2026 is $15 million.
Without proper planning, married couples risk losing the first spouse’s state exemption entirely because Massachusetts does not offer portability. This means a couple with $4 million in combined assets could face a tax bill that proper trust planning would have eliminated.
What You Can Do About It
The solution is straightforward. Create an estate plan that includes, at a minimum:
- A will that names your beneficiaries and a guardian for minor children
- A revocable living trust to avoid probate and maintain privacy
- Updated beneficiary designations on all insurance policies and financial accounts
- A durable power of attorney for financial decisions during incapacity
- A health care proxy for medical decisions during incapacity
- For married couples, tax planning trusts to preserve both state estate tax exemptions
These documents are not complicated to create, and they do not require enormous wealth to justify. They require a conversation about what you want and a few hours with an attorney who understands your family’s situation.
At The Law Offices of Kimberly Butler Rainen, we help families throughout Massachusetts build estate plans that reflect their actual wishes, not the state’s default formula.
If you have been putting this off, consider this your reminder. Contact us today.