What If I Die Without a Will in Massachusetts?

When a person dies with a will, their will contains instructions on how to distribute their property to their loved ones. However, when a decedent passes without a will, they die “intestate.” The court follows intestacy laws to distribute the estate during the probate process. If there is a spouse and children, they inherit the estate. If there is no surviving spouse or child, the estate goes to the closest next of kin, such as parents, siblings, or grandparents. If no one is found, the estate assets go to the state.

What Does a Will Do?

A will is a legal document that allows you to make various important decisions about your assets and your family. In your will, you can do the following:

• Name a personal representative or executor who will locate your assets, submit your will to the probate court, handle your estate administration and follow the instructions in your will, and file tax returns
• Identify and give away personal property and real estate to the people you have chosen (your beneficiaries)
• Make charitable bequests to charities
• Name a guardian to care for your minor children
• Name caregivers for pets and set aside funds for their care

A will does not have to be complicated but a simple written expression of your wishes.

What Doesn’t a Will Do?

A will allows you to pass personal property, real estate, and other assets to your family members and loved ones. However, some assets do not pass by a will. These non-probate assets transfer according to the terms of their legal documents. These include:

• Annuities
• Pensions
• 401(k)s
• IRAs
• Keoughs
• Property owned as joint tenants with right of survivorship
• Trusts, including living trusts and assets owned by trusts
• Funds in payable-on-death or transfer-on-death bank accounts
• Life insurance payments (to beneficiaries other than to the estate itself)

It is important to check these accounts and policies have the correct beneficiary and a backup beneficiary in case your primary beneficiary dies before you. Any account or policy without a beneficiary becomes part of your probate estate.

Who Can Make a Will in Massachusetts?

The person making a will is the testator. To be able to make a will in Massachusetts, the testator must have testamentary capacity, meaning they understand they are making a will and meet the following criteria:

• Age: You must be 18 years old or older
• Sound Mind: You must have a sound mind. Being of “sound mind” means the person making the will understands what they own, who their natural heirs are, how they want to distribute their property, and that they are signing their will.

A testator must also have testamentary capacity at the time they make and sign the will. Massachusetts residents with concerns about their testamentary capacity may want an initial consultation with an estate planning attorney for legal advice and assistance.

Does Massachusetts Have a Statutory Will?

Massachusetts does not have a statutory will or a prescribed format you must use to create your last will and testament. You can create your own customized will using online resources such as FindLaw Legal Forms and Services or hire an estate planning attorney.

What Types of Wills Does Massachusetts Accept?

Most wills are typewritten or printed and signed by the testator. However, Massachusetts has rules about what wills they accept:

• Handwritten Will: A handwritten will is valid in Massachusetts as long as the testator signs and their signature is witnessed by two witnesses. Some states permit the use of a holographic will, a will in the testator’s handwriting that they sign without any witnesses. This is not valid in Massachusetts.
• Oral Will: Oral wills, also called nuncupative wills, are spoken and not valid in the state.
• Electronic Will: Electronic or digital wills, wills signed and witnessed by electronic means, are also not valid in Massachusetts.

The best way to ensure your will is legally valid is for it to be typewritten and then signed by you in front of two witnesses.

Can I Make My Own Will in Massachusetts?

Yes, you can make your own will in Massachusetts. If you know what property you have and who you want to give it to, you are ready to make a will. You do not need an attorney to draft the will. However, you want certainty your will fulfills your intentions and is legally valid. Consider using an estate planning service company with state-specific forms, such as FindLaw Legal Forms and Services. The benefit of using such a service is that if you have changes to an existing will, such as the birth of a child or a divorce, you can easily make a new will.

How Do I Make My Will Valid in Massachusetts?

It is not difficult to make a will, but you want to make sure you follow Massachusetts law. A valid new will under Massachusetts law must fulfill the following requirements:

• Signature: The testator must sign the will themselves or someone else must sign it at their direction and in their conscious presence.
• Witnesses: The testator’s signature or acknowledgment of signature must have two witnesses who sign the will. When possible, use disinterested witnesses. An interested witness is one who is a beneficiary in the will. An interested witness does not invalidate the will, but if there is an interested witness, any bequest to them or their spouse is void unless there are two other disinterested witnesses to the will.
• Notary: There is no requirement that a will be notarized.
• Self-Proving Affidavit: You can make a self-proving affidavit to attach to the will. This affidavit is a statement signed by the testator and the witnesses and then notarized. The testator and witnesses swear they signed voluntarily in each other’s presence and that the testator meets the state’s requirements to make a will. If you have a self-proving affidavit attached, your witnesses are not required to testify about the will in probate court.

Can I Disinherit My Spouse in Massachusetts?

You are not required to include your spouse in your will, but if you leave them out, the law entitles them to receive an “elective” share of your estate. An elective share is a portion of a decedent’s estate that a spouse may claim if left out of the will. If you have children or issue, they may receive 1/3 of your personal property and real estate. They also receive $10,000 in household furniture, cars, furnishings, appliances, and personal effects from your estate. However, your spouse may waive their right to the elective share in a pre-nuptial or post-nuptial agreement.

Can I Disinherit My Children in Massachusetts?

As with your spouse, you do not have to leave anything to your children in your will. However, if you do not include them in your will and do not have a surviving spouse, they may jointly receive $10,000 of your estate’s furniture, cars, furnishings, or personal effects.

If you create a will and then have children after it is signed, those children may receive what they would receive under intestacy statutes if they do not receive anything in the will unless the testator provided for the child outside the will with the intent that the transfer of those assets occur in place of a will bequest.

If you wish to disinherit a child, it is a good idea to state this in the will. Consult with an elder law or estate planning attorney regarding disinheritance.

What Estate Planning Documents Should I Have in Massachusetts?

In addition to your original will, you should prepare other essential estate planning documents. These include:

• Power of Attorney. A financial or durable power of attorney names a person who can handle your financial affairs if you become unable to do so. Many people create a power of attorney to plan for future incapacity.
• Living Will. In Massachusetts, you can name a health care proxy, someone who can access your medical information and make health care decisions for you if you cannot make them yourself. You can also state your wishes for end-of-life care and life-sustaining care. You can do both within a living will document. It is critical that you make these decisions so your loved ones don’t have to make them for you.

Fortunately, making a valid will and creating other Massachusetts estate planning documents is easy with online estate planning templates.