A person can amass a significant amount of property over his lifetime. When he dies, this property, called an estate, will pass to beneficiaries. In Massachusetts, a decedent can make a will to predetermine those beneficiaries. His estate may also pass according to the state's intestacy laws, by marriage or through ownership.
Certain property cannot be passed by will and will not be included in the estate inherited by intestacy. If a decedent owned a life insurance policy, she selected a beneficiary during the initial purchase. That beneficiary will receive the proceeds when the policy owner dies. The owner may alter the beneficiary with the life insurance company, but cannot use her will to make any changes. Also, any property the decedent put in trust before her death will be distributed to the trust's beneficiary by the trustee. Lastly, joint property -- anything the decedent owned with one or more people -- can only be inherited by those surviving joint owners. Joint property ownership comes with a right of survivorship, so the decedent cannot name any beneficiaries to that property in her will.
In Massachusetts, a decedent can make a will to leave his estate to any friend, relative or charity that he wants. However, that will can only be probated if it meets the state's requirements. A person who makes a will is called the testator. State law requires that a testator be 18 or older and have full mental capacity. The document itself must be in writing. Nuncupative or oral wills are only recognized in Massachusetts if the testator is in the military and is on active duty overseas when he makes the will. The testator is also required to sign his will. He must sign in the presence of two witnesses who are not beneficiaries in the will, and they too must sign the document.
A testator cannot completely disinherit her spouse by leaving him out of her will. A surviving spouse who was omitted, whether intentionally or by accident, has the right to an elective share. The spouse must make the election when the will is submitted for probate. The court must then award her what she would have been entitled to if the testator died intestate (without a will).
Massachusetts' intestacy laws, set forth in Chapter 190 of the state's code, dictate the order in which a decedent's heirs may inherit when he dies without a will. The surviving spouse is entitled to $200,000 plus half of the remaining estate, as set forth in Chapter 190, Section 1(1). The decedent's children are the next heirs and will inherit the balance of the estate. Sections 3(3) and (4) authorize the parents to inherit when there are no children or spouse. Siblings can inherit under Section 3(5) if the parents are already deceased. Section 3(6) states that the closest living heir (e.g., nieces and nephews, cousins or aunts and uncles) can inherit when there are no children, parents or a spouse to claim the estate. Lastly, if there are no heirs, Section 3(7) authorizes the commonwealth of Massachusetts to claim the estate.
Bernadette A. Safrath is an attorney who has been writing professionally since 2008. Safrath was published in Touro Law Center's law review and now writes legal articles for various websites. Safrath has a Bachelor of Arts in music from Long Island University at C.W. Post, as well as a Juris Doctor from Touro College.