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.

Protect your loved ones by a legally binding will. Make a Will Online Now

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.

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.