MAKING YOUR WILL

In Massachusetts, anyone who is eighteen years of age or older and of sound

mind may make a will. This must be signed by him or by a person in his presence and by his direction, and attested and subscribed in his presence to two or more competent witnesses.

Massachusetts law provides that any person "of sufficient understanding" may be a witness to a will. "Sufficient understanding" means that the witness should understand that he or she is witnessing the execution of a will.

If a witness is a beneficiary under the will, or the husband or wife of the witness is a beneficiary under the will, the will can be accepted for probate but the gift to the witness or his or her spouse is void unless there are two other competent witnesses to the will. This is a relatively simple requirement, but it has tripped up a number of beneficiaries who discovered after the testator died that they were not going to receive anything.

A will properly executed in Massachusetts will generally be accepted for probate in other states, and a will properly executed under the laws of another state will generally be accepted in Massachusetts if it is in writing and signed by the testator.

If you are planning to move to another state, you should check with us on whether your Massachusetts will is sufficient for that other state. If you have moved here from another state, you should ask us to look at your will to see that it is going to be effective in Massachusetts and that it accomplishes what you wish.

A "nuncupative" will is an oral will. This is valid only in the case of a soldier in military service or a mariner at sea, and is effective only for personal property - not for real estate.

A "holographic" will is one entirely in the handwriting of the testator, with no witnesses. We do not recognize holographic wills in Massachusetts.

In later Notes we will discuss what constitutes sound mind, how a will may be subject to attack, and other issues.

Call us if you would like us to prepare a will for your, or review the will have made earlier to make sure that it properly expresses your wishes.