Detailed Answer
Disclaimer: This article is for educational purposes only and does not constitute legal advice. Consult a qualified probate attorney for guidance on your specific situation.
1. Massachusetts Formalities for a Valid Will
Under Massachusetts law, a valid will must:
- Be in writing.
- Be signed by the testator (the person creating the will).
- Be attested and signed by at least two witnesses present at the same time.
See Mass. Gen. Laws ch. 190B § 3-301 for full statutory requirements (MGL c.190B §3-301).
2. Notarization and “Self-Proving” Affidavits
Massachusetts does not require notarization for validity. Notarizing your will and attaching “self-proving” affidavits under Mass. Gen. Laws ch. 190B § 3-502 (MGL c.190B §3-502) speeds up probate, but it does not cure lack of witness signatures.
3. Petitioning to Probate an Unwitnessed or Unnotarized Will
If your will lacks the two witness signatures, it fails the formal execution test. However, Massachusetts Probate Courts may exercise equitable powers to admit unwitnessed instruments. To attempt this:
- File a Petition for Formal Probate: Submit a petition with the probate clerk’s office in the county where the decedent lived. Include the original will and a death certificate.
- Obtain Affidavits of Due Execution: Ask individuals with direct knowledge of signing (e.g., the testator’s caregiver or family members) to swear under oath that the testator signed the document intending it as a will.
- Request an Equitable Admission Hearing: File a motion explaining why strict compliance failed (e.g., a last-minute drafting error). Attach all supporting affidavits and evidence of testator intent.
- Notify Interested Parties: Serve heirs at law and known beneficiaries. Massachusetts probate rules require proper notice to allow objections.
- Attend the Hearing: Present evidence showing the document reflects the testator’s genuine testamentary intent and no fraud occurred. The judge has discretion to admit the will in equity.
Be aware: Courts grant equitable admission in very limited circumstances. Many judges adhere strictly to MGL c. 190B formalities.
4. Alternative Strategies
- If probate fails, the estate will pass under intestacy rules (Mass. Gen. Laws ch. 190B §§ 2-101 to 2-104).
- Consider drafting a new will and having it properly witnessed, if the testator’s intent is clear and the testator is alive.
- Explore informal dispute resolution or mediation among heirs to honor the decedent’s wishes.
Helpful Hints
- Gather all drafts and notes of the will to demonstrate consistent testamentary intent.
- Secure affidavits promptly; memories fade and witnesses may move away.
- Provide clear notice to all potential heirs to prevent forfeiture of rights.
- Work with a probate clerk early to understand local filing requirements and fees.
- Keep copies of every pleading, affidavit, and proof of service in your case file.
- Consult a probate attorney if the estate holds significant assets or if family disputes arise.