Massachusetts Last Will and Testament

Introduction

Key Things to Know

1. 1

   A last will and testament is a legal document that states who receives your property when you die and names the personal representative (executor) who administers your estate. It can also name a guardian for minor children.

2. 2

   You need 2 witnesses, and they should not be beneficiaries. MGL c.190B Section 2-502 requires the will to be signed by at least 2 individuals who witnessed the testator's signing or acknowledgment of the signature or the will. Under Section 2-505, a devise to an interested witness or that witness's spouse is void unless 2 other subscribing witnesses are not similarly benefited, or the witness proves the gift was not the result of fraud or undue influence.

3. 3

   A self-proving affidavit is available and needs a notary. MGL c.190B Section 2-504 lets you make the will self-proved with a sworn affidavit signed by the testator and witnesses before an officer authorized to administer oaths, such as a notary public. A self-proved will can be admitted to probate without live testimony from a witness.

4. 4

   Massachusetts does not recognize holographic (handwritten, unwitnessed) wills. Section 2-502 requires every will to be in writing and signed by 2 witnesses, with no exception for a handwritten will made without witnesses.

5. 5

   The will itself does not need a notary. Section 2-502 lists only writing, the testator's signature, and 2 witnesses. A notary is used only for the optional self-proving affidavit, not for the will's basic validity.

6. 6

   The testator must be 18 or older and of sound mind. MGL c.190B Section 2-501 sets this minimum age and capacity standard, restated in the statutory self-proving affidavit as being under no constraint or undue influence.

7. 7

   A will can be revoked by a later will or a physical act. Under Section 2-507, revoking a will can be done by executing a subsequent will that revokes it expressly or by inconsistency, or by a revocatory act such as burning, tearing, canceling, obliterating, or destroying it with the intent to revoke.

Massachusetts Requirements for Last Will and Testament

• Two Witnesses Must Sign the Will

  MGL c.190B Section 2-502 requires a will to be signed by at least 2 individuals who witnessed the testator's signing or acknowledgment of the signature or the will. Massachusetts does not require the witnesses to sign in the testator's presence or in each other's presence.

• Avoid Interested Witnesses

  Under MGL c.190B Section 2-505, a devise to a witness or that witness's spouse is void unless there are 2 other subscribing witnesses who are not similarly benefited, or the interested witness proves the gift was not the result of fraud or undue influence. Choose witnesses who receive nothing under the will.

• No Notary Required for the Will Itself

  MGL c.190B Section 2-502 lists only writing, the testator's signature, and 2 witnesses; it does not require a notary for the will to be valid. A notary is used only for the optional self-proving affidavit under Section 2-504.

• Self-Proving Affidavit Is Available

  MGL c.190B Section 2-504 lets you make the will self-proved with a sworn affidavit signed by the testator and witnesses before a notary or other officer authorized to administer oaths. A self-proved will can be admitted to probate without live testimony from a witness.

• Holographic (Handwritten) Wills Are Not Recognized

  Massachusetts does not recognize a holographic (handwritten, unwitnessed) will executed in the Commonwealth. MGL c.190B Section 2-502 requires every will to be in writing and signed by at least 2 witnesses, with no holographic exception.

• Testator Must Be 18 and of Sound Mind

  MGL c.190B Section 2-501 requires the testator to be 18 or more years of age and of sound mind. The statutory self-proving affidavit restates this as being 18 or older, of sound mind, and under no constraint or undue influence.

• Revoke by a Later Will or a Physical Act

  Under MGL c.190B Section 2-507, a will is revoked by executing a subsequent will that revokes it expressly or by inconsistency, or by a revocatory act, such as burning, tearing, canceling, obliterating, or destroying the will, done with the intent to revoke, whether performed by the testator or by another person in the testator's conscious presence and at the testator's direction.

• Name a Personal Representative (Executor)

  Massachusetts follows the Uniform Probate Code (MGL c.190B) and uses the term personal representative for the person who administers the estate, often still called an executor. Name a primary and a successor personal representative so the court has a clear choice if the first cannot serve.