A last will and testament is an important step in planning the distribution of your estate (real and personal property) upon your death. Massachusetts wills permit the testator, the person writing the will, to provide for a spouse, children, other loved ones, and pets after his death as well as to name a personal representative for the estate.
Not to be confused with a will, a Massachusetts living will, or health care proxy, provides instructions should you become incapacitated and incapable of making decisions regarding your medical care.
Do You Need a Last Will and Testament?
Although a last will and testament is not legally required, without a will, state laws (called laws of intestacy) will determine the distribution of the deceased’s assets. The outcome may not coincide with the decedent's (the person who passed away) wishes, however, which means it is generally advisable to create a last will and testament.
In addition to providing the opportunity to direct asset distribution, a Massachusetts last will and testament also allows the testator to make a charitable gift, create a trust for any person, name a legal guardian for minor children, or create a “pet trust” in order to provide for the care of an animal after its owner’s death.
Before the terms of a will can be accepted, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person. Once the will is proven valid in probate court, the executor can then pay off any debts and taxes owed by the estate and then distribute the testator’s property according to the will.
Massachusetts offers two types of simplified probate:
- Estate contains no real estate and value is worth no more than $25,000; or
- Estate does not exceed value of exempt property, family allowance, probate costs, funeral expenses, and last illness.
The will must be filed in the county where the decedent last resided with the Probate and Family Court Department so the personal representative may be granted “Letters” and proceed with the administration of the estate.
Intestacy: Dying Without a Will
Someone who dies without a will is called “intestate,” which invokes the strict laws of intestacy. In Massachusetts in the absence of a will, a surviving spouse inherits the entire estate unless the decedent also has descendants, in which case the spouse and descendants each inherit half. A decedent’s parents are also entitled to part of the estate if there is a surviving spouse but no children or descendants.
If there is no surviving spouse, descendants, or parents, other relatives, including siblings and grandparents, will inherit depending on the closeness of the relation.
Exceptions to Ability to Distribute Property
Not all property can be distributed according to a will. Some common exceptions include the following:
- Property owned in joint tenancy with right of survivorship
- Property owned as tenants in the entirety
- Life insurance policy and retirement account proceeds
- Assets held in a revocable living trust
Form a Last Will in Massachusetts
The basic requirements for a Massachusetts last will and testament include the following:
- Age: The testator must be at least 18 years old.
- Capacity: The testator must be of sound mind.
- Signature: The will must be signed by the testator or by someone else in the testator’s name in his presence, by his direction.
- Witnesses: A Massachusetts will must be signed by at least two witnesses, who should not also be beneficiaries in the will.
- Writing: A Massachusetts will must be in writing.
- Beneficiaries: A testator can leave property to anyone.
Other Recognized Wills in Massachusetts
Massachusetts recognizes nuncupative (oral) wills, but only if made by a person in active military service or a mariner at sea in order to dispose of personal property.
Changing a Massachusetts Last Will and Testament
A Massachusetts will may be changed at any time by codicil, which must be executed in the same way as a will.
Revoking a Massachusetts Last Will and Testament
The revocation of a Massachusetts will can be accomplished by executing a subsequent will or by “burning, tearing, cancelling, obliterating, or destroying ” the document or any part of it, done by either the testator or by someone else at his direction in his conscious presence.
Ready to create a last will? LegalZoom can help you make a last will online in three easy steps. LegalZoom also offers other important legal documents to help plan for the future, such as a living will, power of attorney, and living trust.