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Do It Yourself Will in Massachusetts

Making a Will in Massachusetts: Can You Do It Yourself?

Many people ask if they can write a will themselves, particularly if what they want seems simple and straightforward.  The short answer is yes, but there are risks.  Technically, if you follow the execution requirements for making a will, it will be considered valid even if there are no lawyers involved.

In reality, however, trying to do this on your own could create unnecessary risk for your family.  Massachusetts courts will not recognize a will that does not meet the signing and witness requirements of the probate laws.   If you have to do it yourself in a pinch, it is important that you know these requirements.  But you should also know that there are other ways to get a basic estate plan in place, even in the midst of a pandemic.

What is a Will: The Basics

A will is a formal document giving the world (and the probate court) directions about how whatever you own will be distributed when your estate is inventoried and finalized.  If you have minor children, it can also give the court direction about who you have chosen as a guardian should both parents die. 

Your choice about a guardian can be overriden if it is in the best interest of the children.  Your choices about assets cannot.

A will does not:

• Affect distribution of non-probate assets, such as jointly owned property or accounts, or accounts with existing beneficiary designation;
• Control anything about how anyone uses the assets after distribution.
  

Do It Yourself Will: Practical Risks

​Even if you create a valid will with witness signatures, it will not be a "self-proving will." This means that your family will have to "prove" your will in the Probate Court in order for the assets to distribute. One of your witnesses will have to go to the probate court to attest to the validity of the will, or all heirs will have to assent to the probate of the will. 

This can create a significant hurdle for your loved ones, especially if the will is presented to court many years after you signed it. They may also have to spend thousands of dollars in court costs and fees to get through the required proceedings.

In addition, there are things you can do in a properly drafted will that streamline the process for your family. Some examples of the practical problems your family members will face if your will is not done properly:

• Without specific language granting authority to your personal representative and waiving the bond requirement, administrating your estate may be too burdensome for the person you identified.
• If your will leaves assets to minor children and you have not also created a trust to hold and manage those assets, your family will have to get court approval to set up either a trust or a conservator for your children's assets.
• If something happens to both you and your spouse, your family will have to petition the court for guardianship of your minor children. This can result in conflicts and disputes, and will prolong the time until your children are settled in their new home.

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Do It Yourself Will: Legal Risks

There are many things you can miss in a will that is not drafted by an attorney. Here are some examples:

• You may have made a mistake that invalidates the entire will. By the time the will is presented to probate court, you are no longer around to correct any mistakes, so it is important to get it right the first time.
• A will that does not provide a certain percentage of your estate to your spouse, or that omits any of your children, requires specific language to be valid.  Without this language, the court may not enforce your wishes.
• If the will is declared invalid, the probate court will have to revert to the default distributions under Massachusetts law, which may not be what you wanted and could cause conflict and division in your family.
• Failure to plan for disability. A comprehensive estate plan includes a health care proxy and durable power of attorney. These documents allow you to identify the person you trust to make financial and medical decisions for you if you are unable to do so.

Do It Yourself Will: Financial Risks

In addition to the legal risks of drafting your own will, there are some significant potential financial consequences if you create estate planning documents without help from an expert in this area. These include:

• Missing the opportunity to minimize or avoid Massachusetts estate tax. If your assets are worth more than the state exemption, your tax liability starts at approximately $36,000.Increasing the expense to your family of finalizing the distribution of your estate (the estimated costs without proper planning is 3% to 8% of the value of your estate).
  
• Missing the opportunity to protect some or all of your assets from the costs of long term care through an asset protection trust.
  
• Ultimately having your heirs pay a probate lawyer more than you would have spent having a proper estate plan drafted in the first place.

Why There is No Reason to Do It Yourself

There really is no need to take these risks with a do it yourself or an online will.​

Getting a lawyer to review and prepare your estate planning documents is not as hard as you might think. The cost of preparing your estate plan may not be something you had in your budget. At the same time, you should consider the potential for tax exposure of over $36,000 without proper planning for state or federal estate tax. You should also remember that the cost of the probate process without a plan can eat up 3-6% of your total estate.

In comparison, what you will need to spend for an estate plan is minor, and invaluable in terms of your own peace of mind.

How We Can Help

We are ready to help.  We have a simple process for getting you from wherever you are now to executed and final documents and peace of mind.  It starts with an initial consultation, which is absolutely free.  You can use the button below to schedule your consultation, or simply give us a call at  781-784-2322, or fill out our web form.

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