What happens if you pass away without executing a will? Who will inherit from you? What if you don’t have any kids or a spouse? The process of probating an estate without a will is known as Intestacy.

Join us to learn about the process that occurs when an individual dies without a will. We will be joined by our guest speaker Attorney Paula Nedder from Nedder Law, LLC of Milford, MA.

In this webinar we will be covering:

• Who receives notice from the probate court?
• How does intestacy impact appointing a personal representative for an estate?

The opinions expressed in this webinar are the opinions of Attorney Brian Barreira and Attorney Paula Nedder on the law as written as of the date of the webinar recording, June 16, 2022. The information presented in the webinar is for informational purposes only, and is not a substitute for individualized legal advice.

Webinar Transcript

Brian: Welcome to our webinar on the laws of intestacy. I’m Brian Barreira from Plymouth, MA, and with me today is Paula Nedder who’s got offices in Medway and in Milford.

Paula: Hi, Brian.

Brian: Welcome

Paula: Thank you, I’m very happy to be here.

Brian: So, when we decided to do intestacy, I bet that’s a word most people don’t understand.

Paula: Never mind pronounce.

Brian: Right, you know, like if you die without a will, you’re said to be intestate, it looks like interstate without the ‘r’, you’re not interstate you’re intestate, so if you die without a will the laws of intestacy take over. Now, why is that important? I hear from so many people, you probably get this too, I hear if you die without a will everything goes to the state.

Paula: M-hm.

Brian: Yeah, you hear that? I don’t know where that, I think I know where that comes from. There are some lawyers who essentially run trust mills. They create trusts for everybody, it’s one size fits all and they do ads, and the ads are deceptive, they say something like, ‘if you die without a will the state decides who gets your assets.’ Well, it’s not some bureaucrat in an office in Boston deciding, ‘well you know my nephew has some really expensive cockatoo with a lot of veterinarian bills, I’m going to let it go to him,’ you know, no. There are laws in place, the laws of intestacy.

Paula: Right.

Brian: -and the reason it’s important, what the laws of intestacy are important is well people who die without a will that’s where it all goes, but also whenever you file for anything in probate you have to give notice to the intestate heirs. So, if you go for guardianship, conservatorship, or probate of an estate these are the people who get notice and can object to the process or intervene in some way.

Paula: Right, right, and yeah and the other things I hear you know in addition to what you just described is people either believe they don’t need a will because it’s going to go to their spouse or it’s going to go to their children automatically, like they think something magical happens and it ends up in the right people’s hands. So, I often have to talk them off that ledge and explain that things don’t go the way you think they might go, necessarily, and you have to realize that when you die intestate, meaning you never created a will, executed a will, you give up certain rights. So certain decisions that you would like to see happen, that you think will happen because you trust somebody, like you want to give your favorite guitar to your favorite nephew or niece or something like that, it’s not going to happen, it won’t happen, that promise will go unfulfilled. You give up the right of who’s going to oversee how things go and you give up the right, or your assets or your heirlooms may have to be sold and you can’t protect them because you don’t have a will directing how things are going to go. So, I think folks tend to underestimate the value of a will in other ways than the basics, so I think it’s really important that they understand what will happen if they do decide to not do a will.

Brian: I have some cases where I tell people you don’t need the will that you’ve got right now, you don’t want that disposition, what you want is actually what happens under the laws of intestacy, just tear up the will and for now at least the laws of intestacy will take care of what your wishes are.

Paula: Right.

Brian: The problem with intestacy though is if you’ve got three children, you know they all have an equal right to be in charge.

Paula: Right, exactly.

Brian: You know, and-

Paula: -and you give up that right to figure out who you think is best suited for that job and who will be able to get it done.

Brian: -and when you have real estate, typically a will gives the, what we used to call executor and now is personal representative, gives that person the power to sell the real estate.

Paula: Yeah.

Brian: If you don’t have that, you’re intestate, then you need a license to sell by the court, you need another layer on top of the estate proceedings.

Paula: Excellent point, yeah.

Brian: So, intestacy is not, well it’s not terrible for everybody but it’s important to know what it is. So-

Paula: Exactly.

Brian: So, that’s why we’re doing this. Who inherits? We’re going to start with, we’re going to leave the spouse out for the for the first few minutes through and bring the spouse in later. We’re going to pretend you’re a person who dies with without a will, without a spouse.

Paula: Correct.

Brian: All right take it away.

Paula: All right. So, you’re single or widowed you’ve passed away, there are a possibility of four scenarios depending upon who survives you. Meaning, if you passed away without a spouse and you have children, a hundred percent of your estate will pass to your children equally if you have children. If you have no children, let’s say so you died you never married never had children, but your parents survive you, one or both of them survive you, then your parents are going to inherit 100 of your estate, or if there’s just one parent just that one parent gets it all. If there’s two, they divvy it up. If you pass away no spouse, no children, no parents but you have siblings, brothers, and sisters-

Brian: What about grandparents? You could be a young person and have a grandparent, right?

Paula: That is true, absolutely.

Brian: Yeah, that’s rare. We’re in elder law, not many of our clients have parents.

Paula: That’s true!

Brian: But it essentially goes down the bloodline, if there’s nobody down there then it goes up the bloodline.

Paula: That’s very true.

Brian: That’s a rarity to have a grandparent to inherit from you.

Paula: Yeah, and it’s so rare that it completely escaped me but good point. But if you do have surviving, so all of those folks are gone and all that you’ve got left are siblings and thereafter, your siblings are first in line to receive. Whenever I say that to some clients they immediately bristle because there’s always sibling issues and they say, ‘no way is my brother going to get a penny of my estate,’ so then we do a will to avoid that. But that’s- so those are the top three, then it gets murky after that when there’s nobody at that level, no children, no parents, no grandparents, no siblings, I believe I’ve wiped out everybody at that-

Brian: Wait a minute, what about if we had two siblings and one of them died and had children?

Paula: I believe it goes down to their descendants, their children, so yeah. So now, so the probate laws go down the bloodline-

Paula: Right.

Brian: -if there’s nobody there up. If there’s nobody there across and then if there’s somebody died at the top of that cross somebody pops up.

Paula: Yeah, okay,

Brian: Okay, so all of a sudden Leah has appeared, thank you Leah.

Paula: Well, this is a fun chart.

Brian: So now, this is where it gets really confusing and boy this chart doesn’t help a lot.

Paula: No, but I can put some English on it and then maybe we can navigate the chart. But it’s basically, if you’ve got nobody left at that up and down line that you just described then we go to the closest – the way the law says, that the closest relative in equal degree, but then it all depends who the nearest ancestor is. So, this is where it gets murky and I don’t know how much time you want to spend on this Brian but, so we’re getting into the cousins basically, I would say, right, would you agree?

Brian: Right and I think this chart says it goes, the grandparents are not in the initial crew.

Paula: Let me see.

Brian: Look, see it so it goes decedent up to parent and across the brothers and sisters and if nobody, then it goes up to the grandparent level.

Paula: That’s, there you go see.

Brian: I have, I really have not had any probate inherited by a grandparent, I’ve never had to think through where the grandparent fits in.

Paula: Me too, so it would take a little homework there to make sure it ended up in the right lap, but I mean realistically the reason why is realistically, by the time someone has passed away their grandparents usually aren’t alive, it’s you know assuming a person hasn’t died terribly young. So, if we were to take all that away we’re down to the to the cousins, right?

Brian: Well aunts and uncles first.

Paula: Aunts and uncles-

Brian: Okay, so if we look at the chart and look at the numbers, we’ve got the red in the middle, we got the blue and then number two would be the grandparent, then it would go over to aunts and uncles as a number three. Then we get to cousins.

Paula: Right, but look at that, we have two number fours, right?

Brian: Yep, yep, and great aunts and great uncles would be in there with first cousins.

Paula: Yeah, so-

Brian: If we were, for any client who’s in this kind of situation I would always recommend a trust. Try to avoid probate. I don’t want, we almost need an heir finder in many families to track down, when we get to this level, number four.

Paula: You know and that’s a great point because now we got to figure out who’s who if we go through probate. So, if you have a trust, you’re in control you can name your favorite pet if you wanted to you know, so yeah excellent point. When everybody else is gone and you get down to this level, did you want to spend any time in this part?

Brian: Go ahead, go ahead we’ve got time.

Paula: Well, no, I personally would like to get on with the spouses.

Brian: All right, okay, fine.

Paula: I mean this area is so murky and it really is fact dependent that I think people’s eyes will glaze over if we try to get into it, you know what I mean.

Brian: Right, and by the way, we should mention that this is the Massachusetts kinship chart. This is not necessarily the chart for another state.

Paula: That’s right each state has their own rules. I imagine they’re probably similar, but they all have their own rules. Yep, so this is only for someone who dies domiciled in Massachusetts. Yeah, alrighty, so should we move on to the spouse scenarios you think?

Brian: Go ahead.

Paula: All right, so, it’s interesting with spouses. So, and correct me if I’m wrong, I might skip a step here so bear with me, so if you pass away and you’re married at the time of your death and you leave a surviving spouse and you have children from that relationship, from that marriage or relationship, and you have no other children from any other relationship. So, it’s strictly you’re leaving a spouse and children from that marriage with that spouse, then your spouse will inherit 100 percent. The children don’t get anything, the spouse gets it all. We vary this a little bit, the next scenario varies, you have a surviving spouse you’re married when you die have a surviving spouse you have children from that marriage or that relationship, and you also have children from a previous relationship, or your surviving spouse has children from a previous relationship either one of those the following applies; the first $100,000 of your estate plus one half of any balance of that estate goes to your surviving spouse. So right off the bat, your surviving spouse does not get a hundred percent they get a chunk and then the rest if there’s anything left over is equally divided amongst your children. And your children, correct me if I’m wrong, includes any children that you have from any previous relationship as my understanding, so it expands the number of kids in the picture to not only the kids that you had with the last marriage but the kids that you may have had with previous relationships.

Brian: So, I assume that the rationale behind this law is if you’re married and you have the same kids with your spouse your spouse is going to leave everything to those kids later on, but if you’ve got other heirs, potentially other children, you don’t want, we don’t want the spouse to disinherit them, so they get something right up front.

Paula: Right, and the spouse gets less, basically, which sometimes happens with blended families when you do trust work with blended families, right? Sometimes the money or what’s mine is mine and goes to my kids and my kids from a previous relationship if I didn’t have any kids from the current relationship. So yeah, so I think there’s some logic there.

Brian: For people like this, I do something akin to a post-nuptial agreement, I call it an estate planning agreement, where they agree that no matter who’s the survivor, they’ll leave it in the following proportions.

Paula: Right.

Brian: That way because sometimes if you’re doing MassHealth planning if one spouse goes to a nursing home, we have to move it all into the name of the healthy spouse.

Paula: Right.

Brian: So, there’s another scenario where the children from the prior relationships can get disinherited.

Paula: Right, right.

Brian: So, if people agree in advance, then we don’t have to go through this- well we have to go through who these people are for purposes of the probate petition.

Paula: Right.

Brian: There’s a separate form for it, it’s called, ‘Surviving Spouse, Children, Heirs at Law’

Paula: Right.

Brian: It’s MPC number 162 and it’s a bear. Oh, there it is, right up there, so this is one of those forms that has to be filled out on any probate, any estate.

Paula: That’s right, that’s right and it kind of follows what was just outlined you know, did you leave a spouse, were there children that belonged to your surviving spouse as well and then if there were then there’s additional places where you can take into consideration if somebody has died, a child of yours has died before you, if they left any children and so forth. Yeah, it kind of follows the laws of intestacy there, yep.

Brian: Right.

Paula: But- and that’s interesting that you do, so you basically do a contract versus a trust?

Brian: Right, well I mean I can, I do both, it depends on the scenario, but it’s an agreement that they will not disinherit the other side.

Paula: Yeah, yeah.

Brian: -and that allows us to move everything to the healthy spouse later on if one of them needs nursing home care, knowing that they’ve already agreed on everything.

Paula: Yeah, yeah.

Brian: Plus, for most people even people who are in a second marriage their major asset is their home yeah and they make that joint or they put it into tenancy by the entirety. So, they’re playing roulette with that. The survivor, if you have a will that says, ‘everything I have is going to my children’, and you have one, ‘everything I have is going to my children’, well the survivor’s family is going to wind up getting more if the survivor winds up with most of the assets.

Paula: That’s right, that’s right and what if they get married? What if they remarry too? I mean as you know we’re looking, we can already see that the spousal shares here that a surviving spouse is entitled to, so things can go amok very quickly. Okay, so-

Brian:  What if you didn’t have any children and you have a spouse?

Paula: Right, so you have a surviving spouse and no children, and you have surviving parents one or both. Now again the surviving spouse gets some of the estate but not all of it, so they’ll get the first $200,000 plus three quarters of the estate balance and then whatever’s left over would go to the surviving parent or parents equally. But what if you didn’t have surviving parents? So, you have surviving spouse, no children, no parents, that’s the second scenario where 100% goes to the surviving spouse. And I think that covers most of the combinations when you have a surviving spouse.

Brian: And let’s put another disclaimer in here, this law took effect March 31, 2012.

Paula: Right.

Brian: So, if somebody died before then there was a whole other set of rules.

Paula: Yes, hopefully we don’t have too many of those.

Brian: -and generally, I think generally the rule was the spouse got the first $200,000 and then split the rest with the siblings-

Paula: Yeah.

Brian: -if you had siblings.

Paula: Yeah.

Brian: But I don’t even remember those rules anymore because I haven’t looked at them in so long.

Paula: No, me too. I don’t bother unless I have to, there’s only so much room up there, right? So, yeah, I’m wondering, I think we kind of covered all the possible scenarios without diving deeply into the cousin’s level and all of that. Did you ever have issues with adoptions or let’s see, I’m looking at some rules with regard to Massachusetts, again it’s different in many states, but people should know that an adopted child is considered a blood child. I mean it’s part of the bloodline, so everything that we’re talking about here, an adopted child would not be excluded from any of this logic, they would be thrown into the mix with everybody else.

Brian: But if you had a child that got adopted by somebody else, now they’re out of the bloodline.

Paula: That’s right.

Brian: So, adoption puts somebody into some heir, as an heir somewhere.

Paula: Right, and it’s interesting too because a child I believe, correct me if I’m wrong, a child that has been adopted can still inherit from their biological parent if that biological parent has not given up parental rights, but they have, there’s different-

Brian: I think they have to when they’re adopted.

Paula: That’s right they have to when they’re adopted. There’s some interesting things in there about being able to, which requires a little more analysis I’m just putting it out there to tickle the brain a little bit, but there’s some interesting things out there with adopted children and biological rights to, I mean rights to a biological family parents estate that may come into play with some of these fact patterns.

Brian: What about a child that’s born, what about you have a child who’s born after you died.

Paula: But was it- okay I just, I read about this and now I’m trying to remember it because I haven’t had it happen in my practice yet. If the child was like in gestation before the person died-

Brian: They’re in.

Paula: -and then was born it’s part of the bloodline.

Brian: What about a frozen embryo, that’s you know five years later comes into being? I mean-

Paula: Out of my pay grade.

Brian: But there’s going to be some law on that eventually.

Paula: There sure will be.

Brian: Probably will be a case.

Paula: Yeah.

Brian: So, I define that out in my trusts because if we can’t know who the heirs are or the people inheriting right up front, how can you ever terminate a trust if there could be a frozen embryo that becomes a person later on?

Paula: Yeah.

Brian: Or maybe you want them in there, but we don’t, it could be, you know some of our trusts go on for generations.

Paula: Right.

Brian: So, you want to have some certainty in how a person is defined.

Paula: Yes. Well, but when you’re dealing with frozen embryos or you’re relying, I mean they don’t last forever, right, so you’re relying on at some point somebody saying- but who has the right to say you know then take the next step, yeah.

Brian: There will probably be legislation eventually on this and-

Paula: Yeah.

Brian: -there’ll be cases but, you know, I mean we got to think about those things when we do a trust. I mean I’m doing a trust under Nevada law right now and it could go on for a couple hundred years and that’s what we’re looking at right now, trying to figure out, how long. I mean who is in the picture as a family member and who isn’t.

Paula: Yeah, wow.

Brian: So, if we go through all this and there are no heirs.

Paula: Okay.

Brian: Then what?

Paula: Then it can end up in the Commonwealth’s hands, the Commonwealth of Massachusetts, or if you happen to, if the decedent was a veteran living in a soldier’s home in Massachusetts; there’s two of them one in Chelsea and one in Holyoke; then by law it will, the estate will be given to the soldier’s home where that vet was living. Which is actually pretty nice I thought, that was a pretty decent thing to do. Yeah, but so ultimately it could end up in the Commonwealth’s hands, there’s a lot, I mean that takes a lot of effort, I mean you have to die with no one left in your bloodline basically for it to end up in the Commonwealth’s hands.

Brian: Well now with ancestry DNA testing you could possibly you know do a DNA test put it out there and see who pops up.

Paula: Which is, it’s bad enough when we have to go to cousins, now we have to go to… Do you think-

Brian: Go ahead-

Paula: I was going to say, do you think, I don’t know how much time we’re going to have, but do you want to spend a few minutes talking about what type of assets we’re talking about that might end up in this line versus- did you want to go down that road, probate versus non-probate?

Brian: Nah, we only have three, four, five minutes.

Paula: Okay.

Brian: So how do we find out about these people? I mean these heirs. Again, I want to stress that when we have a client who doesn’t have children, grandchildren, their favorite nieces, they’re you know, if they don’t know who their heirs at law are, I often encourage them, do a family chart, do a family tree, get as much on there as you can while you’re alive, you know. I mean don’t force someone else to have to start this from scratch later on.

Paula: Exactly, and at the very- I don’t know about in your practice, but in mine I will try and do a family tree as much as I can with the family when I’m talking to them and getting as much about that family as possible as part of the file, if they haven’t already done so. But that’s excellent in addition to getting an idea what you have for assets you know and how they’re titled and all of that, you should know your bloodline as much as possible, and I don’t know everybody’s guilty of not knowing. I know every once in a while I try and put a family tree together, sometimes I’m successful, sometimes I’m not, so it’s a little bit of homework to get the job done.

Brian: And especially if you have relatives in another country.

Paula: Oh yeah.

Brian: You know, I mean it’s where the records might not be as good.

Paula: Right, right.

Brian: So, there are heir finders out there. There are people who do this. There’s ancestry.com where there were a lot of genealogists. There were people who loved doing this, there are people on that site that, you know, might be of use. But, you know, trying to put your own chart together to start with makes it a lot cheaper down the road, and avoiding probate, that you know, if you don’t have close relatives and you just have cousins, you really want to-, it’s going to be so expensive right to figure out who these heirs are, that you really should try to avoid probate with a trust.

Paula: Agreed, and as you said there are a ton of resources. In fact, I was just last week in Boston on Newbury Street because I stopped by the, I think it’s called the Massachusetts Genealogical Society, right on Newbury Street in Boston, lovely people, tons of resources, almost overwhelming. They’ll send you; they have databases you can research; they have software that you can use to build your family tree, all for free. You can join in a membership which is inexpensive and get to another level with your genealogy, but yeah there are a ton of resources out there and there’s probably no excuse not to have a family tree at this stage of the game.

Brian: You know, I took that ancestry DNA test a year ago and I’m constantly getting emails about cousins, you know people I don’t know about and so I think that might be a way down the road to determine who your heirs are.

Paula: Yeah.

Brian: -and that would make it very expensive too. The more we know, the more expensive the process might get.

Paula: Right, right. True, and all of it can be avoided by simply stating your wishes, I mean in a simple way by stating your wishes and a will. I mean it doesn’t get any simpler than that.

Brian: Right.

Paula: You don’t have to get crazy about it unless your circumstances are a little complicated.

Brian: Yeah, we still have to find who these people are in order to probate the will though, you know.

Paula: Well assuming you didn’t want it to go down to that level, if you’re assuming you wanted things to go differently then you can avoid all of that for sure.

Brian: So, the one asset that we could talk about in that last minute is real estate, who inherits? I mean-

Paula: Yeah.

Brian: Go ahead, you wanted to talk, you brought it up.

Paula: I was trying to avoid this particular topic because when it comes to real estate, and you have a surviving spouse I think that’s where it gets a little interesting and there’s actually case law on this where the surviving spouse gets what we call a life-estate interest in the real estate and is entitled to a percentage of the proceeds as a result of that interest that they have. And it isn’t-, when you’re talking about life estates, and we don’t have any time to go into this, but when we talk about life estates, it’s not a simple matter of one-half or one-third, it’s a formula that’s based on IRS rules and the older you are the less you get, basically is the one standing rule. So, it can get- so that’s it, I don’t know how much more time we have-

Brian: We’re almost out, but yeah, every now and then I wind up with a case where there was a deed, or in a probate that wasn’t done 50 years ago and who inherits? You know, people just keep using the real estate and living there and then they find they can’t sell it because there was something missing in the past. So, that’s where the laws of intestacy often come in because if someone had a will, it didn’t get probated back then and we’ve got to figure out who the intestate heirs are.

Paula: Right.

Brian: And there was a different law before March 31, 2012.

Paula: That’s right.

Brian: So, everything we just talked about is irrelevant to very old probates.

Paula: Yup.

Brian: Okay Paula, any final thoughts? I mean I think we’ve run-

Paula: I think we kind of covered all the bases and I think it’s really something that people just have to ask themselves some questions about, what they want to see happen when they pass away. And if they care about certain things going a certain way then this is not the way you do it, you do not die without some instructions by way of a will or trust or whatever.

Brain: Right. So, okay and to put a final pin in this, the state does not inherit everything if you don’t have a will.

Paula: That’s right.

Brian: The only way that can happen is if you had a home, you’re in a nursing home and on MassHealth and the state puts a claim against your estate to get reimbursed. That’s when the state can get everything, but otherwise under the laws of intestacy the state is right at the bottom.

Paula: Right, and yep and then a long, long reach for the state to have any kind of benefit from your estate.

Brian: Okay, all right, well thank you, Paula.

Paula: Thank you!

Brian: See you.

Paula: All righty, bye.