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.

  • How to Make a Legally Valid Will in Massachusetts
  • Do You Need a Notary
  • What Are the Legal Risks of a DIY Will?
  • What Are the Financial Risks of a DIY Will?
  • What To Do If You Can't See a Lawyer
​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 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.

This 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.
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.
The main legal risk of a DIY will is that you get some part of it wrong and the court does not do what you intended.  It may seem like a small risk, but it is important, especially because by the time the problem comes up you will no longer be able to do anything about it.

An example is leaving different amounts to different family members, or even disinheriting a child.  You may have good reasons to do this, but there is specific language you must include to accomplish this goal.

Another issue you may not be aware of is that the law requires a certain amount of your estate to go to your spouse, regardless of your wishes.  The spousal share only applies to your probate assets, not to things like a jointly owned home or life insurance proceeds.  That means the balance you mean to strike in your will may not be what happens in the end.
Preparing a will without the advice of an estate planning attorney can have some very real financial consequences for your family.

One example is planning for Massachusetts estate taxes.  You may not know what assets count in your taxable estate, and many families are much closer to the $1 million threshold than they think.  Without planning, a taxable estate of $1 million will result in a tax liability of approximately $36,000.

Another example is the cost to your family of extended probate court proceedings.  A DIY will may eventually result in the distribution of assets you intended, but could cost your family time and money on unnecessary court proceedings if it is not done correctly.
​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.

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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