What Happens If You Die Without a Will in Massachusetts?

Massachusetts decides for you, and the result is rarely what people picture. The widespread belief that a surviving spouse simply inherits everything is true here only in narrow circumstances. Under M.G.L. c. 190B, sec. 2-102, a spouse takes the entire intestate estate only when there are no descendants and no surviving parent, or when every surviving descendant is a child of both spouses and the survivor has no other children. If either of you has a child from another relationship, the spouse takes the first $100,000 plus half of the balance, and the children take the rest. If there are no children but a parent of the person who died is alive, the spouse takes the first $200,000 plus three quarters of the balance, and that parent takes the remainder. None of this touches property that passes outside the estate, such as jointly held real estate or an account with a named beneficiary. To find out what the default rule would do to a specific family, call Jim Glaser Law at (617) JIM-WINS. The line is answered 24 hours a day, and the first telephone consultation is offered without charge.

Intestacy Is a Statute, Not a Guess

When someone dies without a valid will, Massachusetts calls the estate intestate, and section 2-101 of the Massachusetts Uniform Probate Code says any part of the estate not effectively disposed of by will passes by intestate succession to the heirs the statute prescribes. There is no discretion in it. A judge does not weigh who was closest to the person or who needs the money most. The statute sets an order, and the estate follows it.

That is the first thing to understand about dying without a will. The state does not take the property, which is a persistent myth. What happens instead is that the Legislature’s default plan replaces the plan the person never wrote down, and the default plan was drafted for the average case rather than for any particular family.

The Spouse’s Share, Clause by Clause

Section 2-102 sets out four situations. They are worth reading closely, because most people are in one of the two that split the estate rather than one of the two that do not.

The spouse takes the entire intestate estate if no descendant and no parent of the decedent survives, or if all of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives. In plain terms: a couple with only shared children, and no stepchildren on either side, or a person who leaves no children and no living parent.

The spouse takes the first $200,000 plus three quarters of any balance if no descendant of the decedent survives, but a parent of the decedent does. A married person with no children whose mother or father is still living does not leave everything to their spouse under Massachusetts law. The surviving parent takes a quarter of everything above the first $200,000.

The spouse takes the first $100,000 plus half of any balance if all of the decedent’s surviving descendants are also descendants of the surviving spouse, but the surviving spouse has one or more other descendants who are not the decedent’s. That is the stepchild case running in one direction: the survivor has children from a previous relationship.

The spouse also takes the first $100,000 plus half of any balance if one or more of the decedent’s surviving descendants are not descendants of the surviving spouse. That is the same case running in the other direction: the person who died had children from a previous relationship.

The blended-family result surprises nearly everyone. A second marriage with children on either side is an ordinary family structure, and the default rule divides the estate between the surviving spouse and the children rather than leaving it all to the spouse.

Who Takes What the Spouse Does Not

Whatever does not pass to the surviving spouse, or the entire estate where there is no spouse, passes under section 2-103 in a fixed order:

1. To the decedent’s descendants, per capita at each generation.
2. If no descendant survives, to the decedent’s parents equally, or to the surviving parent.
3. If no descendant or parent survives, to the descendants of the decedent’s parents, which is the branch that reaches siblings, nieces, and nephews.
4. If none of those survive, equally to the next of kin in equal degree, with the rule that where two or more claimants descend from deceased ancestors in equal degree through different ancestors, those claiming through the nearest ancestor are preferred. Degrees of kindred are computed by the rules of civil law.

“Per capita at each generation” is the modern Massachusetts approach to dividing among descendants. It pools the shares at each generational level so that relatives standing in the same relationship to the decedent receive equal amounts, rather than inheriting unequal slices depending on the size of the branch they came from.

What Intestacy Does Not Touch

A large share of a typical Massachusetts estate never passes under these rules at all, which is why intestacy sometimes produces an outcome that looks arbitrary.

Property held as joint tenants with right of survivorship, and property held by spouses as tenants by the entirety, passes to the survivor by operation of law at the moment of death. Life insurance, retirement accounts, annuities, and any account carrying a payable-on-death or transfer-on-death designation pass to the named beneficiary. Assets titled in a trust are governed by the trust.

What is left in the decedent’s sole name is the probate estate, and only that portion is divided by sections 2-102 and 2-103. This is why an outdated beneficiary designation can override an entire family’s expectations, and why “who is named on the account” is one of the first questions asked at intake.

The Surviving Spouse Who Is Left Out of a Will

Intestacy is the rule when there is no will. A different rule protects a spouse who is left out of a will that does exist, and it is unusually strict in Massachusetts.

Under M.G.L. c. 191, sec. 15, a surviving husband or wife may, within six months after the probate of the will, file a writing in the registry of probate waiving the provisions made for them in the will and claiming the statutory portion instead. If the decedent left issue, the survivor takes one third of the personal property and one third of the real property. If the decedent left kindred but no issue, the survivor takes $25,000 plus half of the remaining personal and half of the remaining real property. If there is neither issue nor kindred, the survivor takes $25,000 plus half of the remainder outright.

The trap is in the qualification. In the first two situations, where the share would exceed $25,000 in value, the survivor receives that $25,000 outright and then only the income for life on the excess: the personal property held in trust, the real property vested for life. A spouse exercising the elective share on a substantial estate is frequently electing a life interest rather than ownership. Six months is also a short window, and it runs from the allowance of the will, not from the death.

What a Will Actually Changes

A valid Massachusetts will is not a complicated document to execute. Section 2-502 requires that it be in writing, signed by the testator or in the testator’s name by another individual in the testator’s conscious presence and at the testator’s direction, and signed by at least two individuals who each witnessed the signing or the testator’s acknowledgment of the signature or of the will. Notarization is not required for the will to be valid. A notary is used for the self-proving affidavit, which spares the estate from having to locate the witnesses years later.

What that document buys is control: who receives what, who serves as personal representative, and who is nominated as guardian for minor children. Without it, section 2-102 and section 2-103 supply answers that no one in the family chose. On the administration that follows either way, see how long probate takes in Massachusetts and which estates can skip probate entirely, or the practice-area overview at Massachusetts probate and estate planning.

The estate still has to be administered either way. Small estates may qualify for voluntary administration under section 3-1201, which covers an estate of personal property worth no more than $25,000 plus one motor vehicle, filed thirty days after the death. Real estate in the sole name of the person who died always requires a probate proceeding to clear title. And the outer limit in section 3-108 applies regardless: no probate or appointment proceeding may be commenced more than three years after the death, apart from narrow exceptions.

Who Gets Appointed to Run the Estate

Intestacy decides who inherits. A separate statute decides who is put in charge, and families often assume the two questions have the same answer.

Section 3-203 sets the priority for appointment as personal representative, and it applies whether the proceedings are formal or informal. The order is: the person with priority under a probated will, including a person nominated by a power conferred in a will; then the surviving spouse of the decedent who is a devisee; then other devisees; then the surviving spouse; then other heirs; and finally, if there is no known spouse or next of kin, a public administrator appointed under chapter 194.

Where there is no will, the first three categories are empty, so the surviving spouse has priority and the other heirs follow. A person entitled to letters under those categories may also nominate a qualified person to act instead, which is how an adult child or a professional fiduciary often ends up serving with the family’s agreement.

Objections work differently on the two tracks, and this is worth knowing before choosing one. Section 3-203(b) provides that an objection to an appointment can be made only in formal proceedings. A family that expects a fight over who serves cannot raise it on the informal track; the objection has to be made in a formal proceeding.

Minor Children: the Decision Intestacy Cannot Make

For a parent of young children, the strongest argument for a will has nothing to do with money.

Section 5-202 allows a parent, by will or by another writing signed by the parent and attested by at least two witnesses, to appoint a guardian for any minor child the parent has or may have in the future, to revoke or amend that appointment, and to specify limitations on the guardian’s powers. The appointment becomes effective on the first of three events: the appointing parent’s death, an adjudication that the parent is an incapacitated person, or a written determination by a physician who has examined the parent that the parent is no longer able to care for the minor.

A parent who dies without any such nomination leaves that decision to a court, which will act on the petitions in front of it. The nomination is not binding on a court that finds it contrary to the child’s welfare, and it does not override the rights of a surviving parent, but it is the clearest statement of the parent’s wishes the court will have.

The statute also permits something families rarely know about. Under section 5-202(c), a parent who expects to become unable to care for a child within two years or less may petition the court, with notice, to confirm the selection before the appointment takes effect. For a parent facing a serious diagnosis, that is a way to settle the question while they can still take part in it.

Frequently Asked Questions

Q: Does my spouse automatically inherit everything if I die without a will in Massachusetts? Only in two situations under M.G.L. c. 190B, sec. 2-102: where no descendant and no parent of yours survives, or where every surviving descendant is a child of both of you and your spouse has no other children. If either of you has a child from another relationship, your spouse takes the first $100,000 plus half the balance and your descendants take the rest. If you have no children but a parent of yours is living, your spouse takes the first $200,000 plus three quarters of the balance.

Q: Does the state take my property if I die without a will? No. Section 2-103 walks through descendants, then parents, then the descendants of parents, and then next of kin in equal degree. Property escheats to the Commonwealth only if no taker exists anywhere in that order, which is rare.

Q: What happens to my house if I die without a will? It depends first on how the house is titled, not on the will. Property held as joint tenants, or by spouses as tenants by the entirety, passes to the survivor automatically and is outside the estate. A house in the sole name of the person who died is part of the probate estate and passes under sections 2-102 and 2-103, and clearing title requires a probate proceeding.

Q: My spouse’s will leaves me almost nothing. What can I do? M.G.L. c. 191, sec. 15 allows a surviving spouse to waive the will and claim a statutory share, but the filing must be made in the registry of probate within six months after the will is allowed. Be aware of the structure: above $25,000, the share is generally a life interest in the excess rather than outright ownership. The deadline is short, so this is a question to raise with counsel immediately rather than after the estate is underway.

Q: Do I need a notary for a Massachusetts will to be valid? No. Section 2-502 requires a writing, the testator’s signature, and at least two witnesses. A notary is used for the self-proving affidavit, which is worth having because it means the estate does not need to track down the witnesses later, but it is not what makes the will valid.

Q: Who is in charge of the estate if there is no will? Section 3-203 sets the order of priority for appointment as personal representative. With no will, the surviving spouse has priority, followed by the other heirs, and if there is no known spouse or next of kin, a public administrator may be appointed under chapter 194. Someone entitled to serve may also nominate a qualified person to act in their place. Note that an objection to an appointment can be made only in a formal proceeding, not on the informal track.

Q: Who decides who raises my children if I die without a will? A court does, on whatever petitions are filed. Section 5-202 lets a parent appoint a guardian for a minor child by will, or by another writing signed by the parent and attested by at least two witnesses, and lets the parent limit the guardian’s powers. The appointment takes effect on the parent’s death, on an adjudication of incapacity, or on a physician’s written determination that the parent can no longer care for the child. Without that nomination, the court has no direct statement of what the parent wanted.

Q: Does Jim Glaser Law handle wills and estates? Yes, these matters are evaluated on the same intake call. The firm either handles the matter or connects the client with a Massachusetts probate and estate partner attorney at no extra cost to the client. This work is billed on a fixed-fee or hourly basis rather than on contingency, with terms set out in the written fee agreement, and the first telephone consultation is offered without charge. Call (617) JIM-WINS.