Holographic Wills in Massachusetts
Is a Holographic 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. |
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What is a Will, Exactly?
To understand the rules about holographic wills and what makes a will legally valid, it helps to start with a clear understanding of the basics- what is a will and what it does and does not do.
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:
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.
Making a Will: Massachusetts Legal Requirements
Massachusetts law makes no distinction between a handwritten will and a typed will. What matters are the 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 person making the will that meets all of the above requirements can be valid under Massachusetts law. To that extent, you could say that Massachusetts permits holographic wills. Just know that the probate court will not recognize a handwritten will signed only by the person making the will, without witnesses.
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 person making the will that meets all of the above requirements can be valid under Massachusetts law. To that extent, you could say that Massachusetts permits holographic wills. Just know that the probate court will not recognize a handwritten will signed only by the person making the will, without witnesses.
Making a Will: Do You Need a Notary?
When you sign estate planning documents in a lawyer's office, they will usually be signed by a notary public. This is not actually required to make a legally valid will. The reason it is a good idea is that it makes your will "self-proving." In other words, if the witness signatures are notarized, the court will presume the signatures to be valid and will not require the witnesses to authenticate the will in court.
Why is All of This Required to Make a Will?
These legal requirements may seem inconvenient or unfair. 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.
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.
What To Do If You Can't 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.
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.
How Our Estate Planning Lawyers Can Help
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We are ready to help. We understand this can be a difficult issue to tackle, so we have designed our process to make it as easy as possible for you to get the plan in place that protects you and your family and accomplishes your goals. You can use the button below to schedule a free information call, or simply give us a call at 781-784-2322.
