Three weeks after the funeral, a woman I will call Joanne sits at her kitchen table in Hingham. Her husband died suddenly at 58. He had two grown kids from his first marriage. He and Joanne owned their home together and had plans to travel. What they never did was sign a will.
Joanne is learning that she does not get everything. Under Massachusetts law, because his kids are not her kids, she gets the first $100,000 plus half of the rest. The other half goes to her stepchildren. Not because anyone wanted it that way. Because that is what the law says when nobody says otherwise.
Doing nothing is not doing nothing. It is a choice. The law makes it for you.
What your family loses
Control. Who gets the house. Who raises the kids. Who speaks for you in a hospital. All of it goes to a statute and a judge.
Time. An estate with no will still goes through probate. It is slower and messier, because the court has more questions and fewer papers to answer them. Expect about a year, often longer.
Money. Probate costs more with no will to guide it. Tax planning that a simple trust would have allowed is gone. A modest estate can lose tens of thousands of dollars to friction that a little planning would have prevented.
Peace. I have watched siblings who loved each other end up at odds because the default rules put them on opposite sides. I have watched a widow learn she is sharing her own home with her stepchildren. The money gets split. The relationships do not always recover.
Who inherits when there is no will
Massachusetts has a law for this. It is called the intestacy statute. Here is what it does with the property that was in your name alone.
| Your situation | What your spouse gets | Who gets the rest |
|---|---|---|
| Married, no kids, no living parent | Everything | Nobody |
| Married, no kids, but one of your parents is alive | First $200,000 plus three quarters of the rest | Your parent |
| Married, all your kids are also your spouse's kids, and your spouse has no other kids | Everything | Nobody |
| Married, all your kids are shared, but your spouse has a child from another relationship | First $100,000 plus half of the rest | Your kids |
| Married, and you have a child who is not your spouse's child | First $100,000 plus half of the rest | Your kids |
| Not married, with kids | No spouse | Your kids, equally. A grandchild takes a late child's share. |
| Not married, no kids | No spouse | Your parents. Then your brothers and sisters, with a late sibling's share going to that sibling's kids. Then more distant family. In rare cases, the state. |
The third row is the one most first-marriage families fall into. There, the default does what most couples would want. Move one piece, and it changes fast.
The second row surprises younger couples with no kids. It does not matter that your parents are well off. The law splits the estate.
The fourth and fifth rows are Joanne's story. The law is trying to protect kids from being cut out by a second marriage. The protection is rigid. For many couples, it is not the split they would have chosen.
Two more things the law does not do. It does not recognize an unmarried partner, a close friend, or a caregiver. If the person you would want is not on the family tree, they get nothing. And these rules only apply to what was in your name alone. Joint property, retirement accounts with a named beneficiary, life insurance, and anything in a trust pass outside these rules. That is why titling and beneficiary forms matter so much.
Who raises your kids
If you have young children and no will, no law picks who raises them. A probate judge does. The judge hears from whoever shows up asking for custody and decides what is best for the child.
That can go smoothly. It can also turn into a fight between grandparents and siblings, or in-laws and ex-spouses. All of them meaning well. All of them with different ideas. Your voice is not in the room.
A will lets you name a guardian. The court still has to approve, but courts almost always follow the parents' choice. It takes one paragraph. It is the thing I most often see people leave undone because they cannot pick between two people.
If you have young kids and nothing else moves you to plan, this should.
What a basic plan looks like
For most families, it is four documents and one conversation.
- A will. Says who inherits. Names the person who handles the estate. Names a guardian for young kids.
- A durable power of attorney. Lets someone manage your money if you cannot, without a court case.
- A health care proxy. Lets someone you chose make medical decisions if you cannot.
- A HIPAA release. Lets that person get your medical information.
Then the conversation. Tell the people you named. Tell them where the papers are.
That is the minimum. Signed, stored where your family can find them, and matched up with your beneficiary forms. For a lot of families, the whole thing takes a few weeks.
Families with more going on need more. A blended family. A child with special needs. Property in another state. A business. A wish to skip probate entirely. For them, a revocable living trust comes in. That is a longer conversation, and it is most of what I do.
The mistakes I watch for
Assuming the default rules do what you would want. Sometimes they do. Often they do not. The chart above is how you find out.
Thinking a will avoids probate. It does not. A will is instructions to the probate court. If you want to skip probate, you need a trust. I cover this in the will-versus-trust article.
Waiting until life settles down. Life does not settle down.
Using online forms. Massachusetts has its own signing rules and its own quirks. A national form may or may not work. You find out when it is too late to fix.
Starting and not finishing. A will with no guardian named. A trust never funded. Beneficiary forms never updated. Half a plan looks like a plan from the outside. It does not work like one.
The real question
Most people reading this are asking: do I really need to do this?
The honest answer is that your family will survive if you do nothing. The question is what they have to go through, and what they lose along the way.
If your family is small, simple, and gets along, and the default rules happen to match what you want, the cost of doing nothing may be small. If you have a blended family, a home, a business, young kids, or a relative the law would hand money to that you would not, the cost goes up fast. And you do not get to pick when the bill comes due.
Planning is not about expecting the worst. It is about deciding, while you still can, that your family should hear what you wanted from you, not from a statute.
I offer free consultations for families across the South Shore and South Coast. We will look at your situation, talk through what fits, and I will tell you honestly what I would recommend. No sales pitch. No pressure. Just a clear answer.
Jason Cullen, Esq.
Massachusetts estate planning and probate attorney serving the South Shore and South Coast. Career fire captain, paramedic, and Army veteran. Author of the Massachusetts Trustee Handbook.
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