The basic fundamentals of making a will are relatively constant from state to state. Like most jurisdictions, you need to be at least 18 years old and you must be of sound mind to make a last will and testament Massachusetts. You’re not required by law to use an attorney to draw up a will, but if your estate is complex, you might want to take your finished document to a lawyer for review to make sure it accurately states your intentions and you didn't make any mistakes.
The Will Must Be Written
Massachusetts law requires that wills be committed to writing except under narrow circumstances. The state only recognizes nuncupative wills – those spoken aloud to witnesses – if you’re serving in the military or you’re a mariner at sea. Massachusetts lets you write your will by hand if you choose. This is sometimes called a holographic will, but by definition, a holographic will doesn’t require witnesses. This isn’t the case in Massachusetts – your handwritten will must meet the same standard requirements that a printed will would, so your witnesses must sign your handwritten document.
Consider Your Will’s Provisions
The most difficult part of making a will sometimes involves exactly what you want to say in it and how you want to dispose of your property. Some provisions you might want to include are naming a guardian to raise your minor children if you and your spouse die in a common event. If you’re divorced or separated and you don’t want your ex to have custody if something happens to you before they reach the age of majority, this would make your estate more complicated. You’d probably do well to consult with a local lawyer before you try to write such provisions on your own. You might also want to name someone to manage your children’s inheritances for them until they reach the age of majority, and an executor to manage your estate through the probate process. If you don’t express your preferences for whom you want to serve in these positions, the court will appoint people.
Disinheriting Loved Ones Can Be Tricky
When it comes to disposing of your property, the law meddles in your affairs a bit. Massachusetts does not allow you to disinherit your spouse if you are married. If you write your will in such a way to do this, she has a legal right to reject its terms and claim a share of your estate instead. How much of a share depends on whether you have children. If you make a will before you marry, Massachusetts law revokes it when you get married unless you state in the document that you were planning the marriage at the time you wrote it. If you make it while you’re married and then you divorce, the law revokes any provisions made to your ex, including bequests and naming her as executor of your estate. It can also be difficult to disinherit your adult children in Massachusetts, at least entirely. If you want to try to do so, you’ll probably need a lawyer’s help with this as well. Adult children are entitled to $10,000 in personal or other property off the top of your estate if you don’t leave a surviving spouse.
You’ll Need Witnesses
Massachusetts requires that at least two people watch you sign your will and that they then sign it themselves. If one of your witnesses is also a beneficiary, you’ll need three witnesses – two in addition to the one who stands to inherit from you. If both your witnesses are beneficiaries, you’ll need four. They must be competent, or "of sufficient understanding" to know that they are witnessing a will. It just means that the individual has “sufficient understanding” of what you’re doing and what she’s signing. This need only be at the time the will signing takes place. If she loses her faculties afterward, this won’t invalidate your will.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.