Where there's a will there's a way...
Jonathan D. Mayo, Esq.
It's often been said, "Where's there a will there's a way."This is especially true when it comes to estate planning. Those who unfortunately die without a will are known to be intestate, and rather than having their assets distributed according to their specific wishes, their estate instead passes through the intestacy statute. Moreover , if that person has no heirs, the Commonwealth will take the estate assets into the General Fund. One important note applies, however. Certain assets pass "outside the will," such as life insurance benefits, Individual Retirement Accounts (IRAs), and proceeds of trusts created during the deceased person's lifetime. Although a person can structure their estates so as to put assets "outside the will," its nonetheless important to have a will, as numerous assets ordinarily accumulated during a lifetime need a place to go. As they say, "You can't take it with you."
Now that we've noted the importance of wills let's look at the Commonwealth's requirements for a valid will. In order for a will to be valid in Massachusetts it must be:
- Made by someone of sound mind, who is 18 or older. (Source)
- In writing. (Source) (Handwritten is fine, so long as all other rules are met.)
- Signed ("executed") by maker, or at maker's direction. (Source)
- Executed before two, signing witnesses.(Source) (Witnessing acknowledgement of signature or will by maker may also suffice.) (Source)
In addition to these basic requirements, a will may be given additional protection against future attempts to invalidate it by use of a "self-proving affidavit." In addition it is wise to number pages of one's will, and initial each page. Finally one may actually file their will at the local courthouse, assuring that one's will is safe from loss, obliteration or compromise.
One may wish to cancel, or render inoperative certain provisions of a will. One may revoke a will by:
- An express writing, revoking the will or certain provisions.(Source)
- Executing a subsequent will that is inconsistent with provisions of an existing will.(Source)
- Performing a conscious, intentional act, such as”burning, tearing, canceling, obliterating, or destroying the will or any part of it." (Asking another to perform the act also counts) (Source)
- If a subsequent will contains provisions that are inconsistent with an existing will, it revokes that previous will in its entirety only if the subsequent will makes a "complete disposition" of that person's estate. (Source)
- Otherwise the subsequent will only invalidates provisions of the original will to the extent that the two are inconsistent. Provisions untouched by the subsequent will remain operative from the previous will. (Source)
Although there are many ways to revoke a will, the right way to handle this is not by tearing or destroying, but by executing a new will that expressly revokes the previous will. On the other hand, if changes are small, one might execute a codicil changing a previous will. Just remember that any subsequent wills or codicils must be executed with the same requirements seen in original will execution.
Even assuming the existence of a valid will, it is wise to periodically check its terms to assure that is updated for changing circumstances. You might also check your will for a "self-proving affidavit," and if none is present, consider updating your will to include this broader protection.
This discussion is only meant to provide will basics. Links to applicable law are there to encourage more complete understanding. Although this post may contain notes and opinions on the law this content does not constitute legal advice, nor create an Attorney-client relationship between readers and writer.
Readers should consult a qualified attorney before taking on matters of estate planning.
I offer free initial consultations. Call 508-771-1373, or e-mail me at [email protected]. I offer prompt, smart, courteous and affordable advice to guide your estate plan.