What happens if you die without an estate plan?
Creating an estate plan is not an easy subject to broach, especially with someone who is young and healthy. Human nature allows us to always think we have time. Unfortunately, life is unpredictable, and as such, people can be caught off guard and die without ever executing even a simple will. If that is the case and you die without an estate plan (intestate), the Commonwealth of Massachusetts will determine how your assets are distributed.
Given the aforementioned, the Massachusetts Uniform Probate Code (MUPC) sets forth the procedure for administering an intestate estate. Before assets can be distributed, a petition must be filed in the probate court of the county in which the deceased resided, along with a request for an administration. This can be formal or informal. The court then appoints an administrator or personal representative to identify and gather the assets and liabilities of the estate and report them to the court, sometimes referred to as an accounting. This process can be very lengthy and costly. The court may also direct the personal representative to sell real property, wind up any business concerns, pay final debts, and file final income and estate tax returns. The ultimate cost will depend upon how much work the personal representative must perform to administer the estate.
Once the final accounting is complete, the MUPC establishes the parameters for distribution of the intestate estate’s assets. The decedent’s surviving spouse has priority under the MUPC.The decedent’s surviving spouse takes the entire estate when the decedent has no surviving children or surviving parents. Additionally, if the decedent left surviving children who are also children of the surviving spouse, then the spouse will get the entire share. Lastly, the surviving spouse will get the entire share if the surviving spouse’s children (the decedent’s step-children) do not survive the decedent.
A surviving spouse’s share can be reduced if the decedent had other family members. The surviving spouse’s share will be reduced if the decedent had surviving parents, but no children. In that case, the surviving spouse will take the first $200,000, plus 3/4 of the balance of the estate. The remainder will go to the decedent’s surviving parents. The surviving spouse’s share will be $100,000, plus 1/2 of the remaining balance if all of the decedent’s children are children of the surviving spouse and the surviving spouse has at least one child that is not also a child of the decedent. The surviving spouse will be awarded the same amount if the decedent has at least one child who is not a child of the surviving spouse.
If the decedent dies without leaving a spouse, the decedent’s descendants get first priority. Next, if there are no children or grandchildren, then the surviving parents have priority. If there are no surviving parents, then the decedent’s siblings get priority. If the decedent dies without siblings, then the next of kin will get priority.
A Knowledgeable Estate Planning Attorney Can Help Avoid Unintended Results
Attorney Troy Sullivan, an experienced and knowledgeable estate planning on Boston’s North Shore, can help you avoid the unintended results, and potentially exorbitant costs to your family, of dying intestate. Call The Sullivan Firm, P.C. today at (978) 325-2721 to learn how careful estate planning can expedite or even avoid probate and dispose of your estate in the manner in which you want.
What Happens in Massachusetts When a Will Cannot Be Found?
In Massachusetts, a lost or misplaced will can present many problems for the family of the deceased. Losing a will may create lengthy and costly litigation among family members who each claim the estate of the deceased. Contentious litigation may drive a wedge through the family and could prevent the deceased’s true intentions from being carried out. As an estate planning specialist, Attorney Troy Sullivan can work with you to draft an effective estate plan and ensure that your wishes are carried out. This will save everyone who has suffered the loss of the deceased from the stress and effort of attempting to prove what the person would have wanted.
Even though a will cannot be found, it can still be probated, although it is not a simple process. Under the Massachusetts Uniform Probate Code (MUPC), the proponent, or the party asking a court to probate a will, has the burden of proving the contents of the will. According to the MUPC, a formal petition for probate must be accompanied by the original, signed will or by an authenticated copy if the original will is not already on file in the courthouse. If the petition is not accompanied by the will or authenticated copy probated in another jurisdiction, then the petition must include the language of the will along with a statement that the will is “lost, destroyed, or otherwise unavailable.”
Trying to recreate the contents of a lost document is obviously fraught with problems such as inaccurate recitation of the will contents, fraud, or misrepresentation. Unless all the potential heirs agreed that the petition accurately recited the will contents, one or more of the potential heirs likely will file objections to the petition.
The potential heirs who object to the petition for the probate of a lost will have the upper hand under Massachusetts law. The law presumes that a lost will has been destroyed by the deceased with the intent of revoking it. The presumption may be rebutted by evidence to the contrary. The proponent of the lost will must prove by a preponderance of the evidence, i.e., satisfying the burden that the alleged facts are more likely than not, that the deceased had a will or access to the will and did not destroy the will with the intent of revoking it.
Whether the evidence offered by the proponent of the lost will is sufficient is dependent on the specific and unique facts of each case. Factors that a court can consider when determining if it is likely that the deceased did not intend to destroy or revoke the will are:
· Whether there is evidence that the lost will was executed with the formalities required to execute a will;
· Whether a copy of the original will was found;
· The competency of the decedent and the timeframe between when the will was originally signed and the date of death.
As with any lawsuit, the judge will also consider the credibility of the witnesses when they testify to determine truthfulness, bias, and motivation to lie. If, based upon the court’s analysis of all of the facts, the proponent fails to rebut the presumption that the decedent destroyed the lost will, then the decedent’s estate will pass according to Massachusetts’ intestate succession laws.
The testator can keep the will in a bank safety deposit box or in a fireproof safe in the home. A recommended practice is to notify trusted family members where the will is being kept for safe keeping and making certain your family has access to that location in the event of the death of the testator.
Contact a Trusted Estate Planning Attorney for Further Information
A trusted estate planning attorney from The Sullivan Firm, P.C. can help you avoid the stress that is placed on your loved ones when a will is lost. Call Attorney Troy Sullivan today at (978) 325-2721.
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