Massachusetts State Specific Information

Will, Trust, Power of Attorney, and Estate Planning

Official state laws:

  • Massachusetts General Laws
  • Probate jurisdiction rests with the Probate and Family Court 
  • Probate laws are primarily under Part II, Title II, Chapter 192 and Part II, Title II, Chapter 191

Minimum age requirement to:

  • Distribute property by will: 18 (Chapter 191, Section 1)
  • Which minor gets property: 21

Holographic will NOT recognized (No Section exists)

State taxes: Estate, gift, and inheritance:

  • Estate tax: Up to 16% and unrelated to the federal credit for state death taxes (Chapter 65C, Section 1)
  • State gift tax: No state gift tax (Chapter 65C, Section 1)
  • Inheritance tax: No inheritance tax (Chapter 65C, Section 1)

Default rules: How property is distributed if there is no will, i.e. laws of intestate succession: (Chapter 190, Section 1)

  • No surviving spouse, but there are surviving children:
    • All of the estate goes to the surviving children split equally among them or to their children in accordance to their per stirpes share
  • Surviving spouse and
    • Children of surviving spouse:
      • one-half (1/2) of your estate to the surviving spouse, and
      • the other one-half (1/2), split equally among the surviving children or to their children in accordance to their per stirpes share
      • Children not of the surviving spouse (for example your children from a previous marriage):
        • one-half (1/2) of your estate to the surviving spouse, and
        • the other one-half (1/2), split equally among the surviving children or to their children in accordance to their per stirpes share
        • No children and both of your parents of deceased:
          • $200,000 and one-half (1/2) to surviving spouse, and
          • The other one-half (1/2), split equally among your siblings or to their children in accordance to their per stirpes share. If none, then to the next of kin. If none, then to the surviving spouse
          • No children, but at least one of your parents survives you:
            • $200,000 and one-half (1/2) of your estate to the surviving spouse, and
            • the other one-half (1/2), split equally among the surviving parents
  • At least one parent survives you, but no surviving spouse or children:
    • All of your estate will pass to your surviving parents equally
  • No spouse, children, or parents:
    • Siblings (brothers and sisters) equally or to their children according to their per stirpes share. If none, then to your spouse’s next of kin

Who must be named as a beneficiary in your will:

  • Surviving spouse (Section 191-20), andChildren, born or adopted, and grandchildren of any of your deceased children (Section 191-15)
    • Surviving spouse must be given either:
      • If there are no children, then $25,000 and one-half (1/2) of your remaining estate ; see statute (Section191-15)
      • If there are children, then $25,000 and one-third (1/3) of your estate; see statute (Section191-15)
  • Children, born or adopted, and grandchildren of any of your deceased children (Section 191-15)

Effects of changes in your marital status on your will:

  • You are divorced from the surviving spouse:
    • Revokes will as to divorced spouse (Section 191-9)
  • You get married without changing your will that does not provide for your new spouse:
    • Revokes will in its entirety (Section 191-9)

Out of state executors: Must appoint an in-state agent to accept legal papers (Section 195-8)

Witnesses:

  • Minimum number of witnesses required: Two (Section 191-1)
  • Are witnesses allowed to be beneficiaries?: Yes however, any beneficiary named in the will who is also a witness, then the portion of the will to the witness beneficiary will be void, unless there are two other disinterested witnesses (Section 191-2)
  • Requirements to be a witness are not set out by statute, but it is recommended that the witnesses should be:
    • be at least 18 years of age or a notary public,
    • not be related to you by blood, adoption, or marriage,
    • not be your healthcare provider or an employee of your healthcare provider,
    • not be entitled to anything in your will, and
    • not be finically responsible for your healthcare

Property ownership (Chapter 184, Section 7):

  • Common law state
  • If married, then property held together is presumed to create a tenancy by the entirety, unless otherwise stated
  • Tenancy by the entirety, tenancy in common, and joint tenancy are all recognized in this state

Other types of wills:

  • Self-proving wills recognized: Yes, recognized (Chapter 192, Section 2)
  • Living will: no statute governing living wills; but under the Constitution, you have a right to state your wishes as to medical care as provided in this book. Although there are no official requirements, it is suggested that you have two physician provide a writing of your diagnosis documenting your terminal illness (or injury), or your permanent state of unconsciousness
  • Massachusetts Health Care Proxy (Chapter 201D, Sections 1-17)