Massachusetts

Intestacy

General Definition

Any part of a decedent's estate not effectively disposed of by will. Sec. 2-101.

Order of Distribution

A surviving husband or wife will, after the payment of the debts of the deceased and the charges of his last sickness and funeral and of the settlement of his estate, be entitled to the following share in his real and personal property not disposed of by will:

The intestate share of a decedent's surviving spouse is:

(1) The entire intestate estate if:

(i) no descendant or parent of the decedent survives the decedent; or

(ii) 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 the decedent;

(2) the first $200,000, plus 3/4 of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent;

(3) the first $100,000 plus 1/2 of any balance of the intestate estate, if all of the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has 1 or more surviving descendants who are not descendants of the decedent;

(4) the first $100,000 plus 1/2 of any balance of the intestate estate, if 1 or more of the decedent's surviving descendants are not descendants of the surviving spouse. Sec. 2-102.

Will Qualifications

Common Law or Community Property

Massachusetts is a common law, elective share state.

Capacity

Every person 18 years of age or older and of sound mind may make a will. Sec. 2-501.

Drafting

Except as provided in 2-502(b), a will shall be in writing, signed by the testator (or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction) and signed by at least 2 individuals, each of whom witnessed either the signing of the will or the testator's acknowledgment of that signature. Sec. 2-502.

Beneficiaries

A beneficiary includes, in the case of a decedent's estate, an heir, legatee and devisee and, in the case of a trust, an income beneficiary and a remainder beneficiary.

Modifications:

A will (or any part of it) is revoked by:
(1) by executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or

(2) by performing a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator's conscious presence and by the testator's direction. A ''revocatory act on the will'' includes burning, tearing, canceling, obliterating, or destroying the will or any part of it.

(b) If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will.

(c) The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator's estate. If this presumption arises and is not rebutted, the previous will is revoked; only the subsequent will is operative on the testator's death.

(d) The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator's death to the extent they are not inconsistent. Sec. 2-507.

Probate Process

Naming of Executor

To acquire the powers and undertake the duties and liabilities of a personal representative of a decedent, a person shall be appointed by order of the court or a magistrate, qualify and be issued letters. Administration of an estate is commenced by the issuance of letters. 3-§103.

Admission to Probate

To be effective to prove the transfer of any property or to nominate an executor, a will shall be declared to be valid by an order of informal probate by a magistrate or an adjudication of probate by the court, except that a duly executed and unrevoked will which has not been probated may be admitted as evidence of a devise if (1) no court proceeding concerning the succession or administration of the estate has occurred, and (2) either the devisee or the devisee's successors and assigns possessed the property devised in accordance with the provisions of the will, or the property devised was not possessed or claimed by anyone by virtue of the decedent's title during the time period for testacy proceedings. 3-§102.

3-301 discusses petitions for informal probate orders.

Submission of Will

A person having custody of a will, other than a register of probate, must, within 30 days after notice of the death of the testator, deliver such will into the probate court having jurisdiction of the probate, or to the executors named in the will, who must themselves deliver it into such court within said time; and if a person neglects without reasonable cause so to deliver a will, after being duly cited for that purpose by such court, he may be committed to jail by warrant of the court until he delivers it as above provided, and will be liable to a person who is aggrieved for the damage sustained by him by reason of such neglect. Sec. 2-516.

Notifications

If it appears in the petition for the probate of a will or letters testamentary that there is no spouse or heir at law of such deceased person known to be living, the attorney general will be made a party to the petition and will be given notice of all proceedings relative to the probate of the will or granting of letters testamentary. Sec. 3-306.

Inventory

Every executor and every administrator must, within 3 months after his appointment, make an oath and return to the probate court a true inventory of the real and personal property of the deceased which at the time of making such inventory has come to his possession or knowledge. Sec. 3-706.

Homestead, Exempt Property and the Elective Share

The decedent's surviving spouse may remain in the house of the decedent for not more than 6 months next succeeding the date of death without being chargeable for rent. Sec. 2-403.

The decedent's surviving spouse is entitled from the estate to a value at date of death, not exceeding $10,000 in excess of any security interests therein, in household furniture, automobiles, furnishings, appliances, and personal effects. If there is no surviving spouse, the decedent's children are entitled jointly to the same value. If encumbered chattels are selected and the value in excess of security interests, plus that of other exempt property, is less than $10,000, or if there is not $10,000 worth of exempt property in the estate, the spouse or children are entitled to other assets of the estate, if any, to the extent necessary to make up the $10,000 value. Rights to exempt property and assets needed to make up a deficiency of exempt property have priority over all unsecured claims against the estate, but the right to any assets to make up a deficiency of exempt property abates as necessary to permit earlier payment of the discretionary family allowance. These rights are in addition to any benefit or share passing to the surviving spouse or children by the decedent's will, unless otherwise provided, by intestate succession, or by way of elective share. Sec. 2-403.

Debts and Distributions

If the applicable assets of the estate are insufficient to pay all claims in full, the personal representative shall make payment in the following order:

1. costs and expenses of administration;
2. reasonable funeral expenses;
3. debts and taxes with preference under federal law;
4. reasonable and necessary medical and hospital expenses of the last illness of the decedent, including compensation of persons attending the decedent;
5. debts and taxes with preference under other laws of the commonwealth;
6. debts due to the division of medical assistance;
7. all other claims.

No preference shall be given in the payment of any claim over any other claim of the same class, and a claim due and payable shall not be entitled to a preference over claims not due. Sec. 3-805.

Estate Tax

Estates less than $1 million will pay no estate tax. Above that amount, the estate tax is a graduated tax with a top rate of 16%. M.G.L. ch.65C §2.

Property Inclusion

The Massachusetts estate tax is imposed on all real and tangible property located in Massachusetts. M.G.L ch.65C §1.

Filing and Payment

The estate tax is due nine months from the date of decedent's death. M.G.L. ch.65C §2A.

Income Tax Charitable Deductions and/or Credits

Massachusetts allows a taxpaying resident to deduct charitable gifts. Taxpayers must determine the amount of charitable deductions available by completing Federal Form 1040 Schedule A. A taxpayer need not actually itemize deductions in order to claim the charitable deduction in Massachusetts. Excess contributions may be carried forward an additional 5 years from the year of contribution. 830 CMR 62.3.2.