Everything you need to know about MA wills and probate
A last will and testament is a legal document that contains instructions about who gets your belongings when you die and lets you appoint a legal guardian for a minor child. A will is the first step to creating a solid estate plan, which can also include a durable power of attorney and a living trust. You need a will in Massachusetts to make sure your loved ones get the assets you want them to have — otherwise, a probate court may determine who gets what according.
Live in another state? See our guide to making a will in your state.
The testator, or person who writes a will, must be at least 18 years old and display testamentary capacity — be of "sound mind.” (§2-501) They can name beneficiaries to receive personal assets and real estate, and an executor to carry out the terms of the will. A named executor must be at least 18 years old.
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Every will must be signed by the testator and two witnesses of general competence. Witnesses can be beneficiaries of the will in Massachusetts, but unless there are two other disinterested witnesses the inheritance may be void. (§2-505)
Learn more about witnessing a will.
In order for your will to be valid, it must follow all the requirements set out by state law, including those outlined above. An invalid will won’t pass muster in probate and will prove a headache to your loved ones after you’ve died.
You can make a will without a lawyer in Massachusetts, like through an online will-making service, which is often cheaper. An estate attorney can charge as much as hundreds or thousands of dollars to prepare your will and the cost could be higher in the city than it would be in a smaller town. However, you may benefit from hiring a lawyer to draft your will if you have a complex estate or many assets. (See when you should hire an estate planning attorney.)
You can get a free will by using fill-in-the-blank templates, but Massachusetts sample wills aren’t always tailored to your preferences and may not be sufficient if you have a more complicated plan for giving away your assets — like if, for example, you want your will to create a testamentary trust for your beneficiaries upon your death.
If you write your will by hand, Massachusetts law requires you to have it properly witnessed the same way you would with typewritten wills (which means these are not true holographic wills).
You do not need to notarize a will in order for it to be valid in Massachusetts. Notarization cannot take the place of proper witnessing outlined above. (§2-504)
After you die, at least one witness must appear in court to verify your will, but you can include a self-proving affidavit to prevent this from happening and greatly ease the probate process after you've passed away. The affidavit must be notarized; you’ll have to pay a small notary fee.
Learn how to get a self-proving affidavit.
If you want to make changes to your will, you can do so by adding a codicil to it, or by destroying the old will. Keep in mind that the codicil must be signed and witnessed again in order to be valid. Massachusetts wills can be changed up until the testator's death so long as they are of sound mind.
Before the testator's death, a will may be filed with the court for safekeeping. (§2-515)
After the testator's death, the will should be filed with probate and family court in the county where the decedent died or owned property.
Related: Do wills need to be probated?
Probate is the process of proving a will. After the testator dies, a probate judge determines whether or not the will is a valid legal document, and the testator’s family and loved ones will have a chance to contest the will if it is ambiguous or poorly constructed during a court hearing.
It’s the executor’s job to initiate probate proceedings and depending on what the decedent owned, the filing procedures to distribute the deceased’s assets can vary. Massachusetts has four different probate procedures, including an informal way to settle small estates worth under a certain amount.
Learn more about how to avoid probate.
Before the deceased’s assets can be distributed, the executor is required to pay any applicable estate taxes. The federal estate tax in 2021 starts at $11.7 million, and Massachusetts charges its own estate tax for estates over the $1 million exemption limit. Learn more about who has to pay estate tax.
When there is no will, you are said to have died in intestacy. The court will determine your heirs to receive your assets according to state law, and they may not be who wanted.
Learn more about what happens when you die without a will.
If you are married, then your surviving spouse has the right to inherit. This is how much your surviving spouse could inherit in a few different circumstances (§2-102):
|If the decedent is survived by a spouse and:||Surviving spouse's share|
|No children or parents||Everything|
|Children with the surviving spouse||Everything|
|Parent(s), but no children||The first $200,000, plus 3/4 of the intestate estate|
|Children with the surviving spouse, who also has children with someone else||The first $100,000, plus 1/2 of the intestate estate|
|Children with someone else||The first $100,000, plus 1/2 of the intestate estate|
The remaining intestate estate will pass along to the following people, based on intestate law (§2-103):
Children, or their children
Siblings of the deceased, or their children (the deceased’s nieces and nephews)
Next of kin as decided by civil law
The way this works is that for someone to receive the estate, there must not be anyone left in the category above them. If a prospective heir is dead, then their share typically passes to their children by a per capita at each generation designation.
You can use Policygenius to create a will today, for you and your spouse, so the courts don't decide what happens to your property.
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