Holographic or Handwritten Wills

Does Massachusetts Allow Handwritten Wills?
A "holographic will" is a will written in your own hand and signed by you, and in some states can be used in place of a more formal will.  Massachusetts law, however, will not recognize a will- handwritten or otherwise- that does not meet the signing and witness requirements of the probate law.  If you want to change an existing will with a separate document (called a codicil), the codicil as well will need to be signed and witnessed according to state law requirements.
What are the Requirements of a Legal Will in Massachusetts?
​Massachusetts law has three basic requirements for a will to be valid.  It must be:
  1. In writing;
  2. Signed by the person making the will (who must be legally competent to make a will at the time of signing); and
  3. Signed by two other individuals who witnessed either the initial signing of the will or a later signed acknowledgment by the person making the will.

What most people think of as a holographic will- a handwritten document signed by the person who wrote it- is not invalid because it is handwritten, but invalid because it does not meet the witness requirements above.

If you make your wishes known in a written document signed by you and two competent witnesses, you will have a valid will. 

What you will not have is a "self-proving will," which means in order to probate your estate 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.  A self-proving will, in addition to the above, requires that the witnesses specifically attest to the fact that the person making the will is at least 18 years old and of sound mind and body, and that the witnesses signatures are themselves made before a notary public.

Who is Competent to Make a Legal Will in Massachusetts?
Competency to make a will in Massachusetts (or to execute a trust or any other estate planning documents) is not a high standard.  The person must simply be able to understand his or her relationship to the people named in the will, and to comprehend the nature of the act of making a will.  In other words, the person making the will does not have to have a firm grasp on the details of the document or the technical terms and mechanics, but must understand that he or she is making a decision to leave assets to certain people, and that he or she understands their relationship with those people.  

Part of your estate planning lawyer's job is to satisfy themselves that you are competent to make a will.  Most of the time this is obvious from simply engaging in conversations with you, and will never even come up explicitly.  If you are helping your parents or anyone else with their estate planning, understand that the attorney who drafts their will will need to have at least one conversation alone with that individual, to fulfill their obligation to judge both competency and ensure that the estate planning decisions are the free and voluntary act of that individual.
What are the Legal Risks of a "Do-It-Yourself" Will?
If you meet the witness and execution requirements, you most likely will have a valid will, and one that can be "self-proven" if you meet the additional requirements above. 

​But there are many things you can miss in a will that is not drafted by an attorney, and by definition (since the questions will only arise after you are gone) you will not have an opportunity to re-do it if there is a problem.  Here are some examples:
  • A properly drafted will grants specific authority to your personal representative (formerly known as executor) which streamlines the process for your heirs and avoids the need for the personal representative to post a bond or get probate court approval for certain things.
  • 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.  
  • 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 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.
What are the Financial Risks of a "Do-It-Yourself" Will?
​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).
  • Ultimately having your heirs pay a probate lawyer more than you would have spent having a proper estate plan drafted in the first place.
 
Is it Really Easier or Cheaper to Make a "Do-It-Yourself" Will?
A DIY will is only cheaper than having an estate planning professional help you if you do not count the value of your time.  If you want to avoid the real cost of getting the substance or formalities of your will wrong (see above), you will need to spend some time educating yourself about the laws in Massachusetts. You will need to write, edit, and proofread your documents.  You will need to make the logistical arrangements for witnesses and preferably a notary to be in the same place at the same time to witness you signing the will.  And you will still not have the peace of mind that comes with knowing you have put the right plan in place and that your plan will be carried out after you are gone. 

In contrast, once you contact us, we can take the heavy lifting off of your hands, identify the right solutions for you, and take care of all of the logistics of finalizing and signing your documents. 
Want to Learn More?
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About slnlaw

We are a Massachusetts law firm focused on business law, employment law, and estate planning. Our team includes attorneys with large law firm experience, public service experience, experience working with small businesses on a wide variety of matters, an attorney with an advanced degree (LLM), and a former clerk to the Massachusetts Supreme Judicial Court.  Attorney and founder Emily Smith-Lee has been named to the Massachusetts Super Lawyers list every year since 2013, and was recently named a 2018 Lawyer of the Year by Massachusetts Lawyers Weekly.  Our lead estate planning attorney Jenna Ordway has been recognized as a top estate planning attorney, and has published a book about estate planning in Massachusetts.
 
What We Do

Employment Law: We advise both businesses and individuals about Massachusetts and federal employment laws, and represent them as needed in litigation if a lawsuit cannot be avoided. 

Business Law: In addition to providing advice on employment matters and defense of employee lawsuits, we can help you set up your new business, review your agreements with vendors and customers, resolve or litigate business disputes, and much more. 

​Estate Planning: We provide customized plans for individuals and families to help minimize your estate tax liability, protect and preserve your assets, and ensure that the people in your life are taken care of the way that you want.  We can help you with wills and trusts, planning for a child with special needs, planning for the cost of long term care, and more.

We also have an extensive network of other professionals, some lawyers in other practice areas and others who are non-lawyer professionals who offer services that our clients frequently need.  If the problem you need solved is not one that we handle, we are happy to provide a referral to someone we know you can trust.