Dying Without a Will in Massachusetts--The laws, they are changing; the underlying premise stays the same

This is day 2 of 2011. Many of us have sat down and, systematically, started to develop goals and objectives for this year. This is a time-honored tradition, and most of us go through the exercise, either on a formal basis by writing things down, or by at least thinking about things that we MUST do this year.

If any of you reside in Massachusetts, one of the things that you "must do" this year is draw a Will. Amending an outdated Will you already have will be the subject of a future post.

My reasoning for this admonition is simple. The Massachusetts legislature, in its wisdom in 2008, changed some of the provisions of the Massachusetts laws of intestacy in 2008 (Acts of 2008, Chapter 521, Section 9). The law goes into effect on July 1, 2011 (slippery, aren't these guys and girls?). It is my opinion that the revised law, while an improvement over prior law, does not come close to articulating the wishes of most Massachusetts domiciliaries.

In case you are not familiar with the term "laws of intestacy", let me inform you that the laws of intestacy come into play when a person dies without a Will. Set aside the added expense of probating an intestate estate (appointment of an administrator, added Court appearaances), the intestacy laws also decide "who gets what" if you have not drafted a Will.

Even with the changes which are coming into effect in July, 2011, the following rather anomalous results will ensue if you die without a Will:

1. If you are married without children, your surviving spouse will not receive your entire estate if you leave a surviving parent. In an era when many of us are involved in elder care planning to remove assets from the estates of our parents, how impractical is it to have your parents take a share? Heaven forbid, your parents are incompetent and cannot disclaim what share they are awarded under the new law. All of your elder planning can go for naught.

2. An entirely new category of people, "surviving decendants of the surviving spouse" now comes into play. If your spouse had "pre-owned" children when he or she married you, that affects his or her intestacy share. The net effect of this provision would be to give some portion of your estate to your children when they reach the age of 18 years. When I do estate plans for clients, I confirm with most clients that having children receive large sums of money at the age of 18 is almost always a bad idea. A well-drafted Will can delay the time when your children take; dying without a Will cannot.

3. Those self-same "surviving descendants of your survivng spouse" are now in line in terms of taking an intestacy share, where they had no standing before. Providing for these step-children may be something you wish to do. Maybe, you are aware that their "other parent" has more than adeqautely provided for them. In any event, the new law puts them into the picture, unless you do something to obviate that possibility.

There are more examples I can provide. None are pretty. In the days of email and Microsoft Word, I am now able to provide clients with a Will, and other estate plan documents, in less than a month, if everyone cooperates. The cost is not prohibitve; the feeling you get when you know you have made your own provisions for people you care about, on your own terms, "priceless".

PS: While the provisions of this post apply to the Commonwealth of Massachusetts, other states have equally confusing, and unsatisfactory, intestacy laws. Those of you in other jurisdictions almost certainly need Wills, too.