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 places 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:
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 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.
- In writing;
- Signed by the person making the will (who must be legally competent to make a will at the time of signing); and
- 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 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.
What are the 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.
Ready to Get Started?
We are ready to help. We have a simple process for getting you from wherever you are now to executed and final documents. 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.
We are ready to help. We have a simple process for getting you from wherever you are now to executed and final documents. 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.
|
46 South Main Street
|