Massachusetts Wills, Trust, and Probate

Although few wish to think to about it, preparing for your death or incapacity by creating a plan for the distribution of your estate is an important thing to do. Your estate, which includes your assets, like property and money, can be distributed to your loved ones through a variety of vehicles, including a will, trust, and/or a durable power of attorney. Irrespective of how old you are or how much assets you own, creating a properly drafted will, with the advice of a Massachusetts will attorney, is a vital step in ensuring that your hard earned assets are protected.

Massachusetts Will

You must be sure to precisely craft your will according to Massachusetts law. Failing to do so may mean that your assets will not be distributed in exactly the way you want. There are two ways to create a valid will in Massachusetts:

1. Non-hand-written will
   a will that is not in your own handwriting (e.g. typed will) must include:
   • Competent person—the creator of a will must be of a sound mind (mentally competent) and at least 18 years of age
   • Writing—the will must be in writing, even if it is not in your handwriting
   • Signature—the will must be signed by EITHER i) the testator (the person whose will it is) or ii) by some other person who is acting under the testator’s direction and in the testator’s presence
   • Witnesses – At least two adult witnesses, present at the same time, MUST SIGN the will after witnessing either the testator or the person who is acting under the testator’s direction sign the will. While witnesses can be beneficiaries under the will, the witnesses benefiting from the will must prove that there was no fraud or undue influence by the witness when the will was signed.
   • Intent: the testator must provide proof of intent that the writing is intended to be a will.
2. Hand-written will (also known as a “holographic will”)
   • hand-written will must include:
     • Writing—Massachusetts law requires that all “material” (significant) provisions be in the handwriting of the testator.
     • Witnesses—upon your death or incapacity, at least two witnesses must testify that the handwriting is yours
     • Signature—the will must be signed by the testator.

Changing a Will in Massachusetts

The following options are available to change a will in Massachusetts:

• Destroying the prior will and making an entirely new will;
• Changing your will by amendment or codicil; or
• Through a divorce or annulment of a marriage

Through the first option, a new will can be created after revoking your old will by completely destroying it (i.e. physically ripping the will). One cannot accidentally destroy a will in Massachusetts (one must destroy the old will with the intent to revoke the will).

Through the second option, one can amend an old will by a codicil. This would generally entail attaching a separate document with changes.

Through the third option, the creator will have to annul his/her marriage or divorce his/her spouse. This revokes any assets that the original will distributes to the former spouse.

Any questions or concerns during this process should be discussed with a Massachusetts will attorney.

Massachusetts Trust

Alternatively, you may create a trust to distribute your assets after your death. Massachusetts law recognizes several kinds of trusts and so creating a trust provides you with a flexible way to distribute your assets, according to your specific needs.

Prior to creating a trust, you will need to identify a “trustee”. A trustee is designated as the owner of property or assets on behalf of another who ultimately benefits from the trust. A trustee has the fiduciary obligation to ensure that the assets of the trust are spent, invested, and managed responsibly and to the benefit of the beneficiary of the trust.

Overall, a trust is a complex document, but a Massachusetts estate attorney can assist you in preparing and customizing a trust that will be tailor made for your particular needs and your specific situation.

Massachusetts Probate

When a person dies, his or her estate must go through probate. The will is overseen by the Massachusetts probate court. If the deceased leaves a will that explains how his or her property should be distributed, the probate court must determine the validity of the will and must ensure that the deceased’s assets are distributed according to the will. If the deceased dies intestate - without a will – the court will appoint an executor to distribute the deceased’s property according to Massachusetts law and according to the beneficiary’s relationship with the deceased.

Intestate succession in Massachusetts allows the following people to hold interests (non-exclusive):

1. Spouses
2. Descendants – children, grandchildren, etc.
3. Parents
4. After-born heirs
5. People who are adopted or born out of wedlock

Alternatively, if the executor to an estate has deceased or refused to accept the position, the court will grant letter letters to other potential executors that are willing to accept the responsibility of distributing the estate assets according to Massachusetts law.

Either way, before you determine whether to distribute your assets by a will, trust, or another instrument, be sure to consult a Massachusetts probate attorney who will ensure that your estate plan meets the specifications of Massachusetts probate law.

Massachusetts Statutes

Massachusetts Statutes, Title II, Descent and Distribution, Wills, Estates of Deceased Persons and Absentees, Guardianship, Conservatorship, and Trusts

1. Wills
   • Massachusetts Statutes, Tit. II, Chp. 191 §§ 1, 1A, 2, 8, 9
2. Trusts
   • Massachusetts Statutes, Tit. II, Chp. 203B §§ 1, 2, 4
3. Probate Code
   • Massachusetts Statues, Tit. II, Chp. 190B §§ 1, 3-306, 3-403