The Uniform Probate Code, or UPC, is a non-compulsory uniform code that defines nationwide standards for establishing, executing and probating wills. Like many states, Massachusetts chose not to adopt the Uniform Probate Code in full, instead electing to partially adopt specific sections and define a supplementary statewide probate code to build upon these portions. The Massachusetts Uniform Probate Code, enacted as part of the Massachusetts General Laws in 2009, defines the state's guidelines for estate planning, probate and intestacy succession rules.
To establish a will, a testator must be at least 18 years of age and of sound mind. However, a testator under the age of 18, but who is legally married, a member of the arm forces, the parent of a minor child or otherwise legally emancipated, is exempt from the age requirement.
A testator must convey her will is writing, whether typewritten or handwritten, and sign the bottom of the document herself in the presence of at least two additional witnesses for her will to be recognized as valid. The exception to this is if the testator drafts her will entirely in her own writing, known as a nuncupative, or holographic, will, in which case only the testator needs to sign the document and no witnesses are required.
Under exigent circumstances, Massachusetts may also acknowledge the validity of an unsigned will if the surviving family can demonstrate by “extrinsic evidence” that the testator intended the document as her actual and only will.
Disposing of Property
A testator may dispose of his property, including real property, personal property, cash assets, interests and other assets, by defining his assets and assigning them to his beneficiaries named in the will. A testator can only dispose of property in which he holds an individual, separate or severable interest; property in which a testator holds a non-divisible interest cannot be bequeathed. Any property not explicitly assigned to any named beneficiary is automatically considered residue of the estate, which will be transferred to the beneficiary assigned all rest and residue or liquidated for the executor’s use while managing the estate.
Proofing & Executing
To proof a will, the testator must sign in the presence of two witnesses, who must also sign the will is the presence of each other and the testator. In lieu of witnesses, the testator may submit her will to a notary public for notarization, which requires no additional witnesses. Once the will is proofed, it is considered executed under Massachusetts law.
Witnesses to a will must be capable of attesting to the veracity of the will. There is no defined requisite age for witnesses, although precedent defines that a person should be at least 16 years of age to act as witness.
Witnesses should have no intrinsic interest in the testator’s estate -- that is, not be named as a beneficiary by the will -- although the attesting of an interested witness is not in and of itself a reason to void the validity of the will.