two paths

As much as everyone seems to understand the importance of having a last will and testament, few actually understand what happens when we die without one. Perhaps the best way to describe what follows is that the State of Massachusetts has drafted a will for you, and it is called the laws of intestate succession. These laws have undergone a change, so that effective January April 2012, they are consistent with most other states in the nation under the Uniform Probate Code (“UPC”).

Thus dying with or without a will results in much the same process, called “probate.” And while the law in the past differentiated between “executor” (under a will) and administrator (no will), all such persons are now called the “personal representative” under the UPC. But the primary difference in dying without a will lies in the missed opportunity for planning out the distribution of assets. A person with a regularly updated estate plan, for example, might keep most if not all of her assets outside of probate altogether. At the very least she could have made specific bequests to those beneficiaries most in need.

Who is an “Heir at Law” Under Massachusetts UPC: When in Doubt, Guess the Spouse

Instead of legatees, those dying without a will leave their remaining assets to “heirs at law,” those persons who are entitled to take by Massachusetts statute rather than by will. Who these persons are depends mainly on who survives in the decedent’s immediate family. Below are some examples of what might occur:

  1. Family 1: Husband Harry and Wife Whitney have children Bob and Grace.
    If Harry dies, Whitney is the only heir at law and receives all assets. Same as if Whitney died. The law assumes that the surviving spouse is best equipped to see to all of the children’s needs, if any.
  2. Family 2: Husband Harry and Wife Whitney have no children, but Harry’s parents are alive.
    If Harry dies then his wife and parents are all heirs at law. If his parents were not alive then Whitney his wife would again be the sole heir at law.
  3. Family 3: Divorcee Dan and Wife Whitney are presently married with one child, Charlie. Divorcee Dan also has a daughter named Paige from his previous marriage. If Dan’s Wife Whitney dies, the heirs at law are Dan himself and Charlie, the child of the present marriage. The law aims to protect the interest of the decedent’s children if the surviving spouse has other children outside the marriage.
  4. Family 4: Dan and Whitney are married but have no children. Dan has a child Paige from a previous relationship. If Dan dies, both Whitney and Paige are heirs at law.

How Do “Heirs at Law” Share in the Assets: Equally Near is Equally Dear

Under the Massachusetts UPC laws of intestacy, the system, called “per capita at each generation” is said to grant the estate in equal shares to those equally related. Two rules govern this system:

1) Each surviving share in the nearest generation is allocated one equal share. (e.g. all three surviving children of a single parent receive 1/3).

2) The remaining shares, (if any in the generation are deceased), are then combined and divided in the same manner among the surviving members of the next generation.

Examples of Intestate Succession in Massachusetts

  1. Family 1 (with descendants): Harry survives his wife but dies leaving one child named Charlie, and two grandchildren Grace and Gary of his previously deceased daughter named Dottie. Harry’s third child, Harry Jr., also predeceased him. Under “per capita at each generation” the shares are divided as follows:
  2. Charlie – 1/3
    Dottie – 1/3

            Grace – 1/3
    	Gary – 1/3

    Harry Jr. – 1/3

  3. Assume the same situation above, but that Harry only had two children, never having had a third child named Harry Jr.:
  4. Charlie – 1/2
    Dottie – 1/2

            Grace – 1/4
    	Gary – 1/4

    Again, in each situation the members of first generation with surviving members will receive the share(s) they are due, and the remaining shares are combined and divided equally among surviving members of the next generation.

  5. Family 2 (without descendants): Susan survives her husband but neither she nor her husband had any children. The laws of intestate succession dictate that the estate passes upwards to Susan’s parents, and back down to Susan’s siblings if her parents are deceased. In a situation where Susan has no surviving parents, siblings, or descendants of siblings (nieces & nephews), her estate would instead pass upwards to a higher level, to her grandparents’ estate and on to great uncles etc.

Professional Guidance

For more information about intestacy and what to expect in the probate process, feel free to contact one a Massachusetts probate lawyer at our office by calling 508-888-8100 or emailing