Making a Will in Massachusetts

Steps to Create a Will in Massachusetts

Here's a quick checklist for making a will in Massachusetts:

1. Decide what property to include in your will.
2. Decide who will inherit your property.
3. Choose an executor to handle your estate.
4. Choose a guardian for your children.
5. Choose someone to manage children's property.
6. Make your will.
7. Sign your will in front of witnesses.
8. Store your will safely.

Why Should I Make a Massachusetts Will?

Creating a will -- also known as a "last will and testament" -- is a step you can take to help protect your family and your property. You can use a will to:

• name a personal guardian to care for your minor children
• name a trusted person to manage property left to minor children
• leave your property to people or organizations, and
• name an executor, who will ensure that the terms of your will are carried out.

What Happens If I Don't Have a Will?

If you die without a will, your property will be distributed according to Massachusetts state "intestacy" laws. Massachusetts' intestacy law gives your property to your closest relatives, beginning with your spouse and children. In the absence of a spouse or children, your grandchildren or your parents will get your property. If none exist, the state seeks out other relatives, including siblings, grandparents, aunts and uncles, cousins, and nieces and nephews. If the court exhausts this list to find that you have no living relatives by blood or marriage, the state will take your property.

Do I Need a Lawyer to Make a Will in Massachusetts?

No -- you can create your own will in Massachusetts, using Nolo's Quicken WillMaker & Trust. You may want to consult a lawyer in some situations, however. For example, if you think that your will might be contested or if you want to disinherit your spouse, you should talk with an attorney. Nolo's will-making products tell you when it's wise to seek a lawyer's advice.

What Are the Requirements for Making a Will in Massachusetts?

To make a will in Massachusetts you must be:

• an individual 18 years of age or older, and
• of sound mind. Mass. Gen. Laws Ann. § 2-501.

In Massachusetts, your will disposes of the property you own at the time of your death, as well as any property your estate acquires after it. Mass. Gen. Laws Ann. § 2-602.

You must make your will on hard copy. That is, it must be on actual paper. It cannot be on an audio, video, or any other digital file. (Although, see "Can I Make a Digital or Electronic Will?," below.) Massachusetts does not permit handwritten (holographic) wills. Mass. Gen. Laws Ann. § 2-502.

How Do I Sign My Massachusetts Will?

To finalize your will in Massachusetts:

• you must sign or acknowledge your will in front of two witnesses, and
• your witnesses must also sign your will. Mass. Gen. Laws Ann. § 2-502.

Your witnesses should be "disinterested" - meaning that they do not stand to inherit anything from the will. Otherwise, they can lose whatever gift you leave them in your will by acting as a witness. Mass. Gen. Laws Ann. § 2-505.

Do I Need to Have My Will Notarized?

No, in Massachusetts, it is not necessary to notarize your will to make it legal.

Massachusetts does, however, allow you to make your will "self-proving." A self-proving will speeds up probate because the court can accept the will without contacting the witnesses who signed it. To make your will self-proving, you and your witnesses will need to go to a notary and sign an affidavit that proves who you are and that each of you knew you were signing the will.

Should My Will Name an Executor?

Yes. In Massachusetts, your will can name an executor who will ensure that the provisions in your will are carried out after your death. Nolo's Quicken WillMaker & Trust produces a letter to your executor that generally explains what the job requires. If no executor is specified, the probate court will appoint someone to take on the job of winding up your estate.

Can I Revoke or Change My Will?

In Massachusetts, you may revoke or change your will at any time. You can revoke your will by:

• burning, tearing, canceling, obliterating, or destroying your will with the intent to revoke it
• making a new will that revokes the old one, or
• making a new will that has contradictory terms to your old one. Mass. Gen. Laws Ann. § 2-507.

If you have more than one will and it's not clear whether the old will should be revoked, Massachusetts law has certain rules to determine if your new will revokes or supplements (adds to) the terms of the old will:

• Your new will replaces your old will if it contains contradictory terms and you intended it to revoke the old will.
• The law presumes you intended to replace your old will if your new will completely disposes of all of your estate.
• The law presumes you meant to supplement your old will if you don't dispose of all of your estate. Your executor must follow the instructions of all of your valid wills. If a term in your old will contradicts a term in your new will, your executor must follow the instructions in the new will. Mass. Gen. Laws Ann. § 2-507.

If you and your spouse divorce (or if a court determines that your marriage is not legal), Massachusetts law revokes any language in your will that leaves property to your spouse or names your spouse to be your executor. However, if you happen to remarry your ex or if you specifically state in your will (or divorce decree) that divorce should not affect the provisions in your will, then these rules won't apply. Mass. Gen. Laws Ann. § 2-804. If you have any concerns about the effects of divorce on your will, see an estate planning attorney for help.

If you need to make changes to your will, it's best to revoke it and make a new one. However, if you have only very simple changes to make, you could add an amendment to your existing will – this is called a codicil. In either case, you will need to finalize your changes with the same formalities you used to make your original will (see above).

Can I Make a Digital or Electronic Will?

In a few states, you can make a legal will digitally – that is, you can make the will, sign it, and have it witnessed without ever printing it out. Although such electronic wills are currently available in only a minority of states, many other states are considering making electronic wills legal. While Massachusetts does not currently have a law of this nature, it is generally assumed that most states will allow electronic wills in the near future.

Where Can I Find Massachusetts' Laws About Making Wills?

You can find Massachusetts' laws about making s wills here: Massachusetts General Laws Part II Real and Personal Property and Domestic Relations Title II Descent and Distribution, Wills, Estates of Deceased Persons, and Absentees, Guardianship, Conservatorship, and Trusts Chapter 190B Uniform Probate Code Article II: Intestacy, Wills and Donative Transfers.