Intestacy and the New Massachusetts Uniform Probate Code By Tiffany A. O’Connell, Esq., LLM
With the full enactment of the Massachusetts Uniform Probate Code (MUPC), G.L. c. 190B, on March 31, 2012, the legal community has been abuzz with how to administer estates under the new law . The MUPC was enacted i n order to codify and clarify an archaic and confusing set of laws as well as to promote a speedy and efficient court process. Now that the new law is here to stay, let’s just say that the laws are still confusing , and whether speed and efficiency has been obtained…the jury is still out.
Because of this change in law, the probate courts have reached out asking probate attorneys to volunteer their time at a probate helpdesk at the various probate courts in the Commonwealth in order to deal with all the questions that are anticipated . Wanting to help (I have issues with saying ‘no’) , I volunteered to cover the helpdesk at the Norfolk County Probate Court. As I was pulling together and reviewing my own resource book to bring with me, it reminded me that one of the big changes in law involves intestacy. So, please accept the following as ‘pearls of wisdom ’ (or perhaps more appropriately , ‘words of warning’) from me to you.
Intestacy is what happens when someone dies without a will . Probate , however, will not be necessary unless the person had assets in his or her individual name. Moreover, m any people don’t realize that the government actually ‘creates’ an estate plan for those who do not create an estate plan for themselves . State law states that once all expenses and taxes are paid, the re is a set group of individuals who will get your assets. Only in the event that there are no extended family members living (e.g. next of kin ) do a person’s assets go (“escheats”) to the state.
You may say that this doesn’t sound so bad, but let’s fol low this through with a few examples. Let’s say Fred died in April 2012. H e is survived by his wife, Wilma. Let’s say further that Fred and Wilma had no children and that Fred’s dad was still living. Based on this scenario, Wilma would split Fred’s assets with Fred’s dad. What?? That’s right – only half would go to Wilma in this case – not a great situation if Fred had thought all his assets would pass to his wife.
Here’s another potential nightmare. Let’s say Fred died in April 2012. H e is survived by his wife, Wilma , and his daughter, Pebbles . Now, in this scenario, Fred had a previous relationship with Betty and had a child, Bamm , from that relationship (You didn’t know that, did you?) . Based on the new MUPC, Fred’s assets would be split among Wilma, Pebbles and Bamm . In order words, Wilma will have to share the pot with the kids. Again, not a great situation i f Fred had thought all his assets would pass to Wilma.
So, what does this all mean? It means that having an estate plan that you enact , and not relying on the default estate plan created by state law, is very important to help ensure that your assets pass to who m you want.
Please think about those that you know who may not have an estate plan or may have an outdated estate plan . Our goal is to help ensure that everyone has an estate plan that meets their goals and concerns – Even if that means just doing a will so that Fred’s assets will pass to Wilma.
