Holographic Wills in Massachusetts

Is a Handwritten Will Valid in Massachusetts?
A "holographic will" is a will written in your own hand and signed by you. Some states recognize holographic wills and allow them to be used in place of a more formal will.

Most people think about a handwritten will if they need something last minute- suddenly they are going on a trip and want to make sure they have something in place, or maybe something like the COVID-19 pandemic is occurring.

What you need to know is that 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 Are the Requirements For a Legally Valid Will in Massachusetts?

​Massachusetts law has three basic requirements for a will to be valid. 
  1. The will must be in writing. This could include handwriting, but generally they are typed.
  2. The will must be signed and dated by the person making the will. This person is often referred to as the "testator."
  3. The will must be signed by two disinterested witnesses. Disinterested means they are not beneficiaries or potential beneficiaries of the will.
In addition to the above, the person making the will must have the mental capacity to do so. This is often called "testamentary capacity."

A handwritten will signed by the testator that meets all of the above requirements can be valid under Massachusetts law. To that extent, you could say that Massachusetts permits holographic wills. The probate court will not recognize a handwritten will signed only by the testator.

Why Doesn't Massachusetts Recognize Holographic Wills?

It may seem logical that a handwritten document setting forth your wishes is better than nothing at all. But you have to remember two things.

First, by definition once a will is presented in probate court you are no longer around to verify your wishes or testify that your signature was real. That is the reason Massachusetts has strict requirements for signatures and witnesses. It is also the reason your estate planning lawyer may ask you to sign or initial each and every page of your will, to protect against any alteration of the document.

Second, the state is not indifferent to how your assets are divided. If you have no will, state law provides for distribution to the family members most likely to be the ones you want to benefit. This includes your spouse, children, and sometimes other family members.

If the court were to accept a simple signed handwritten will, it would be risking the best interests of your presumed heirs for a document that cannot be properly authenticated.

Does That Mean You Need a Lawyer to Make a Will?

You can create a will that meets the technical requirements of Massachusetts law without an estate planning lawyer. If you write a holographic will and have it appropriately witnessed and signed by disinterested witnesses, the document itself will be recognized.

That does not mean that writing a will without a lawyer is a good idea. There are legal and financial risks to trying to make a "do it yourself" estate plan. Among the things you may not have the expertise to address:
  • Protecting your assets from estate taxes.
  • Using the right language to accomplish something outside the norm, like disinheriting a child or a spouse.
  • Enabling minor children to receive an inheritance through a trust.
  • Enabling your heirs to receive assets without the expense and one year wait of Probate Court.

What Should You Do if You Don't Have Time to See a Lawyer?

​Sometimes the realization that you need something in place comes upon you at the last minute. This happens when parents of young children travel without their kids for the first time. It might also be something you just didn't get to before being deployed in the armed forces, or taking on a job that has some real risk.

If you really need to get something in place for a simple reason, like naming a guardian for your children or making a specific bequest, you can write or type up a simple will on your own. As long as you get two adults who are not beneficiaries of the will to witness and sign, it will be better than nothing.

You should, however, make it a priority to sit down with an estate planning lawyer as soon as the urgent situation has passed to make sure that you have truly addressed everything you and your loved ones need in your estate plan.

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