Do All Wills Need to Be Probated in Massachusetts?

By Anna Assad

Probate in Massachusetts is a legal proceeding used to validate a will, appoint an executor to oversee the estate and settle the deceased person's financial affairs. A will may not have to be probated in Massachusetts under certain circumstances, as defined throughout Title II of the General Laws of Massachusetts.

Probate in Massachusetts is a legal proceeding used to validate a will, appoint an executor to oversee the estate and settle the deceased person's financial affairs. A will may not have to be probated in Massachusetts under certain circumstances, as defined throughout Title II of the General Laws of Massachusetts.

If Property is Exempt

Some types of property are exempt from probate under Massachusetts law, per the Massachusetts Bar Association. An estate that consists of only exempt property may not need to be probated even if a will is located. Money from a deceased person's life insurance can go to the beneficiary named in the policy and is not included in probate. Any property the deceased person owned as a joint tenant with another person, like his spouse, automatically passes to the surviving joint tenant. A retirement plan is paid to the designated recipient and excluded from probate.

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If the Will is Invalid

A will must be executed in accordance with Massachusetts laws to be admitted for probate. The will must be signed by the deceased person, or testator, and at least two mentally competent witnesses. A person may sign the will for the deceased person, but only at his direct request and in his presence, per Chapter 191(1) of the General Laws of Massachusetts. The person making the will had to be of sound mind at the time of execution, and the will must contain clear provisions for the disposal of his property.

Estate Left to Former Spouse

A will that leaves the entire estate of the deceased person to a former spouse may not be probated unless the will reflects the parties are divorced or the marriage was annulled. Section 2-802 of the Massachusetts Uniform Probate Code provides that if a person is legally divorced or the marriage was annulled at the time of her death, her former husband is not her surviving spouse. A legal separation is not considered a divorce for probate purposes.

Actions of a Beneficiary

Certain actions by an heir or beneficiary under a will may revoke the provisions or the document in its entirely. A will that leaves all assets to a person who murdered the testator is not probated, per Section 2-803 of the Massachusetts Uniform Probate Code, because the beneficiary cannot inherit assets or act as the executor of the estate.

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Definition of Last Will and Testament in Michigan

References

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Massachusetts Last Will & Testament

The Uniform Probate Code, or UPC, is a non-compulsory uniform code that defines nationwide standards for establishing, executing and probating wills. Like many states, Massachusetts chose not to adopt the Uniform Probate Code in full, instead electing to partially adopt specific sections and define a supplementary statewide probate code to build upon these portions. The Massachusetts Uniform Probate Code, enacted as part of the Massachusetts General Laws in 2009, defines the state's guidelines for estate planning, probate and intestacy succession rules.

Responsibilities of a Will Executor in Massachusetts

Under the General Laws of Massachusetts, a will is submitted to probate court once someone has died. If the will names an executor, the court gives that person “letters testamentary,” which allow him to act on behalf of the deceased’s estate. He then has 30 days within which to post a bond, which is essentially an insurance policy guaranteeing that he will not use his position for any illegal or unethical purposes. Sometimes a will specifically waives the bond requirement, usually in cases where the estate is small and the deceased had few assets.

Is a Notarized Will Legal in Massachusetts?

Massachusetts law has specific requirements for what makes a will legal in the state. These requirements include who must sign a will in order to make it valid. Although a notary may sign a will as a witness in Massachusetts, a will that is notarized but not witnessed is not valid, according to the Massachusetts Probate Code.

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