Many people pass away without a will in place. When meeting with clients who have no Will I like to let them know how their property would pass if they died without a Will in place. This way, even if they decide not to proceed they will at least know what will happen, and explaining the law can sometimes help guide them in their own decisions.
Massachusetts law says that if someone dies without a will and they have a spouse and children, and all of those children are also children of the spouse (and the spouse has no other children), then the spouse inherits everything. For example, if Brad Pitt passed away without a will, all of his children are also children of Angelina Jolie, and she has no other children so she would inherit everything. The law figures that the spouse will use the money to care for the children and that the children don’t need any additional protection.
The law then says “If any of the decedent’s descendants is not also a
descendant of the spouse, or if any of the spouse’s descendants is not also a descendant of the decedent, the spouse receives the first $100,000 plus one-half of the balance of the estate, and the decedent’s descendants receive the one-half of the balance.”
Which may have you saying “huh?”
What this means is that if there are step-children, the law wants to provide an additional layer of protection for them. So, if Nicole Kidman were to pass away as a resident of Massachusetts, she has descendents who are not descendents of her spouse (she has 2 children with her first husband, Tom Cruise and 2 children with Keith Urban.) Therefore, Keith Urban would inherit the first $100,000.00 plus half of the estate, and all 4 of Nicole’s children would share equally in the second half of the estate. The law wants to make sure that Keith doesn’t inherit all the money and then cut out Nicole’s other children.
This provision, however, only applies to property that is passing through the probate estate. So, if spouses hold all of their property jointly you could end up with a scenario where a “decedents descendent’s” are mistakenly disinherited. If Nicole and Keith held all of their property jointly, and Nicole passed away, Keith would own all of the property. He could then write a will that says everything goes to his children, Sunday and Faith, and Nicole’s other 2 children would inherit nothing
This situation can be especially unfortunate when the children are younger and still in need of support.
By taking the time to think about your own family situation and needs, and then meeting with an attorney to memorialize those wishes (and make sure your assets are aligned properly) you can avoid ending up on the pages of TMZ or at least keep your descendents out of probate court.