A “will” or a “last will and testament” is a legal document that tells the probate court how an individual wants to distribute their property after they die. The person making the will is called a “testator.” A will also tells the court who has the responsibility to wrap affairs. This person is referred to as the “personal representative, ” and through the probate process, the court will give the personal representative the authority to gather all of the testator’s property, pay any remaining creditors’ bills, and distribute the remaining property as specified in the will.
Frequently Asked Questions
How do I make a will?
Anyone eighteen (18) years or older who is of sound mind can make a will. However, for a will to be valid in Massachusetts, the following requirements must be met:
- A will must be in writing.
- Signed by the testator (the person making the will).
- Signed by at least two individuals who witnessed the signing of the will.
How do I revoke a will?
In Massachusetts, a prior will is revoked if:
- A new will is executed that revokes the prior will or inconsistent with the terms of the prior will; or
- by performing an act with the intent to revoke a will. This includes burning, tearing, canceling, obliterating or destroying any part of the will.
What happens if I die without a will?
If a person dies without a disposing of all or a portion of their estate by a will or trust, then the Probate Court will decide how your estate is distributed.
Can I create my own will?
Yes, you can create your own will in Massachusetts. However, you need to carefully consider whether drafting your own will is the right option. If you create your own will, then there is a greater possibility that you’ll leave something out or a legal formality will not be followed. This could subject your assets to the intestacy laws or possibly invalidate your will. It’s always a good idea to consult with an estate planning attorney when considering adding a will to your estate plan.
Is a “Do-It-Yourself” will legal?
Yes, a DIY will is valid as long as you meet the requirements for a valid. So you can create a valid will, but it most likely will not be customized according to your unique situation. The DIY services only create the document and leave it up to you to decide what will happen after you die. This can lead to unintended consequences especially if your circumstances change after you draft the will, such as a new edition to your family or a change in your financial situation. DIY services are good for creating legal documents, but you should talk with an estate planning attorney to make sure your estate plan will always work the way you want it to.
Can I appoint a Guardian for my children in my will?
Yes, which is why a will is a must have for anyone with minor children. You can appoint who you want to have custody of your minor children in a will. Since a guardian only has custody of the minor children, you must also appoint a conservator, who has possession of the property of the minor children. The guardian and conservator do not have to be the same person. So you can have one person raise your children, while another can be in charge of managing the property for the children.
Who may act as a witness when I sign my will?
Anyone who is competent to be a witness, which means that are of sound mind. Also, the witness should not be a beneficiary of the will.
What is a self-proving will?
This is a will that comes with a sworn statement that the witnesses watched you sign the will. The Probate Court will accept this statement as evidence the will is valid. This eliminates the need for the witnesses to testify in court that they watched you sign the will.
Can I handwrite my will?
Yes, Massachusetts is one of the states that recognize a handwritten will, also known as a “holographic will,” as long as the will is a written document, you were over 18 years old and of sound mind when you signed the will and at least two witnessed signed the will. If these conditions are met, then your holographic will be valid. However, issues can arise with handwritten wills if assets are not accounted for in the will or if the handwriting is not legible. In these instances, Massachusetts intestacy laws would be applied to fill in any the gaps of the will.
Can I have an oral will in Massachusetts?
No, a will must be in writing.
What is a codicil?
A codicil is a document used to make minor changes (additions, deletions, or alterations) to an existing will. To be valid, a codicil must follow the same formalities and witness requirements for a will.
Does divorce revoke a will?
A divorce does not revoke the entire will but revokes any dispositions made to the former spouse in the will.