There is only one thing more important than making a Will in Massachusetts – it is making a valid Will.
There are different sets of legal requirements for a Will to be valid in Massachusetts and they include:
- Capacity (such as age, soundness of mind, the appointment of executors or trustees)
- Form (i.e., specifications on the writing)
- Content (e.g., disinheritance of spouses and dependents, clause, the existence of another will)
- Signing (witnesses, notarization)
While these requirements are easy to fulfill, it is always advisable to get an experienced Estate Planning Lawyer. This will help you prevent complications that may result in the invalidation of your Will.
The Wills and Estate Planning attorney from the Law Offices of Richard Mucci in Massachusetts will be happy to give you a free consultation on how to make a valid Will and other estate planning instruments.
Why Should I Make a Will and What Happens if I Don’t Make a Will in Massachusetts?
When you make a valid Will, you are able to:
- Make sure that your wishes are carried out and your assets are distributed following the Will
- Opponents of the Will cannot invalidate it
- Provide financial benefits for your loved ones and appoint who will have parental oversight over your dependents who are still minors
- Appoint the executors or a trustee (estate manager according to the Will)
If the validity of a Will is contested and proven to have violated serious legal requirements, the Will may be declared null and void i.e., treated like it never existed. Probate is therefore impossible, and the estate will be distributed according to the laws of intestacy in Massachusetts.
Legal Requirements for Making a Valid Will
The Massachusetts General Laws § 2-502 – 506 regulate the validity of a Will. The different requirements can be classified into the following categories:
1. Capacity
A testator – the maker of a Will – must be:
- at least 18 years old before making a Will.
- of sound mind at the time of making the Will.
This implies that a mentally unsound person or a person with dementia or schizophrenia may not make a Will unless if at the time of making the Will, it can be proved that they were lucid and free of undue influence.
A medical certificate of the testator’s sound mind may be included if there are mental issues that may impact the testator’s ability to reason without influence.
2. Form
A Will must be written to be valid in Massachusetts. Holographic Wills (handwritten Wills) are not valid in the state. The Will should be typed and printed on actual paper and not merely stored as an electronic file.
3. Content
Although you may generally decide what property goes to whom, if you are married or have dependents such as children who are still minors, they may be entitled to a portion of your assets by law.
If you will be disinheriting your spouse or children or any other dependent, you should consult with an experienced Probate lawyer in Massachusetts to know how best to address this issue in your Will.
Also, if you have made previous Wills or Codicil, you can revoke such Wills by inserting a revocation clause in this new Will.
4. Signing or Execution
The testator is required to sign his Will whether it was prepared by him or a Richard Mucci Massachusetts Wills lawyer. If for any reason the testator is unable to sign their Will, they can direct another person to sign on their behalf in the testator’s conscious presence.
In Massachusetts, at least two witnesses must append their signatures to the Will that they were present when the testator signed the Will. This requirement is also mandatory where another person was directed to sign for the testator in their conscious presence.
The witnesses should be competent and capable of testifying about the circumstances when the Will was signed. They should also be non-beneficiaries (that lack interest in the outcome) of the Will to avoid complications.
If you are planning to make your final wishes and pass on your legacies through a Will, you should strongly consider speaking to a Wills and Probate Lawyer from the Law Office of Richard Mucci to make a valid and comprehensive Will.
However, you may also consider other estate planning instruments to use as an alternative to a Will or to complement it.
3 Other Estate Planning Tools in Massachusetts
Being able to plan how your estate will be distributed is a gift, and not a spooky affair as many often think. And like many plans, it demands strategic input and a comprehensive assessment of what you have and what you need to do. Thankfully, there are several estate planning techniques and instruments available in Massachusetts to serve your purpose as you deem fit.
1. Living Trust
One of the simplest ways to avoid probate is to execute a living trust by transferring the assets intended for the trust beneficiary to a Trustee (usually an organization).
A Settlor (the estate owner) may direct that the property with the Trustee immediately passes to the beneficiary upon death (revocable living trust). In an irrevocable living trust, the Trustee may transfer the property to the beneficiary while the Settlor is still alive.
The transfer to the beneficiary is immediately recognized without having to file for probate.
2. Durable Power of Attorney (DPOA)
You can also explore the use of a DPOA to empower a close and trustworthy friend or family to carry out your wishes if you become incapacitated or after death.
A DPOA is a legal document that authorizes your attorney-in-fact to carry out the matters within the scope of powers granted in the DPOA on your behalf as the principal. The powers contained in the DPOA may be general or specific such as the capacity to sign documents transferring a property to the beneficiary.
The difference between a DPOA and a usual POA is that it does not terminate even if the principal becomes incapacitated or dies. It is important that for a POA to become durable, it must contain the following language, “…shall not be affected by my subsequent disability or incapacity or lapse of time.”
3. Inter Vivos Gifts
You may decide to distribute your assets by executing deeds of gift to the beneficiaries. This way, you can minimize oppositions that could arise against your Will and also save on estate taxes.
This is a highly effective tool if you have an heir-apparent or you don’t want the beneficiary to start benefiting from your estate during your lifetime.
Four Advantages of Planning your Estate
The benefits of using any of the above instruments to plan your estate include:
- Ensuring that your loved ones do not suffer or are deprived of what you intend to give to them in the event of your incapacitation or death
- Ability to prescribe future medical treatments to be administered to you if you are incapacitated
- Avoid filing for probate
- Tax savings
FAQs on Wills
What is a “Self-Proved” Will?
A self-proved Will does not require the testimonial evidence of the witnesses in court to prove its validity. It is created where the testator and witnesses to a Will sign a “self-proving affidavit” in the presence of a notary public and the same is notarized.
Even if the Will is later contested in the court, the witnesses to the Will would not be required to attend the trial.
Are There Tax Reliefs/Waivers for Small Estates?
Yes. Massachusetts General Laws exclude estates valued at less than $1,000,000 from paying estate taxes. This implies that personal representatives (e.g., executors) of an estate are not required to file returns or pay estate taxes if the estate is worth less than the $1,000,000 threshold value.
For more information, visit our website Mucci Legal or contact us for a free legal consultation today.