Massachusetts Wills vs. Trusts
Navigating Massachusetts estate planning doesn’t have to be overwhelming. Whether you’re considering a will or trust, understanding the key differences can save your family significant time, money, and stress. This comprehensive guide breaks down Massachusetts’ unique laws around wills vs trusts to help you make the right choice for your legacy.
Table of Contents
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Massachusetts Will Requirements
A Massachusetts Last Will and Testament should include:
- Age and Capacity: Testator must be at least 18 years old and of sound mind, meaning they understand the nature of the will, their property, and intended beneficiaries (§2-501)
- Format: Must be in writing; oral wills are generally not recognized except for soldiers or mariners under specific circumstances (§2-502)
- Signature: Must be signed by the testator or by another person at their direction in their conscious presence (§2-502)
- Witnesses: Requires signatures from two competent witnesses, who must witness the signing or acknowledgment of the will (§2-502)
Interested Witnesses
Massachusetts allows witnesses to be beneficiaries under the will, but their inheritance may be limited to what they would have received under intestacy laws if there aren’t at least two other disinterested witnesses.
Self-Proved Wills
A notarized affidavit can make a will self-proved in Massachusetts, simplifying probate by eliminating the need for witness testimony (§2-504). This affidavit:
- Must be signed by the testator and witnesses
- Must be notarized
- Can be executed at the time of will signing or later
- Streamlines the probate process by eliminating the need to locate witnesses
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Amendment, Revision, and Revocation of Massachusetts Wills
Revoking a Massachusetts Will
Massachusetts wills can be revoked through:
- Executing a new will that explicitly revokes the prior one
- Physical destruction (burning, tearing, canceling, obliterating, or destroying) of the will with intent to revoke (§2-507)
Automatic Revocation by Divorce
In Massachusetts, provisions favoring a former spouse are automatically revoked upon divorce (§2-508). This includes property dispositions and appointments of the former spouse as executor or trustee.
After-Born/Omitted Children
If a child is born after a will is executed (pretermitted heir), they receive an intestate share unless explicitly disinherited (§2-603). This protects children from unintentional disinheritance.
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Holographic and Oral Wills
Holographic Wills
Massachusetts does not recognize holographic (handwritten) wills. All valid wills must comply with the formal witness requirements (§2-502). No matter how clearly written or signed, a handwritten will without proper witnesses is not valid in Massachusetts.
Oral Wills
Oral (nuncupative) wills are recognized in Massachusetts only in very limited circumstances. They are valid only for:
- Soldiers in active military service
- Mariners at sea
- Only for disposition of personal property (not real estate)
- Subject to strict proof requirements
Massachusetts Trust Requirements
Trusts in Massachusetts are governed by the Massachusetts Uniform Trust Code (MGL Chapter 203E).
Requirements for a Valid Massachusetts Trust
For a trust to be valid under Massachusetts law:
- The settlor must have capacity (same standard as for wills) and express intent to create a trust (§203E-402)
- The trust must have lawful purposes and identifiable beneficiaries (§203E-404)
- Charitable trusts and pet trusts are exceptions to the definite beneficiary requirement
- The trust property must be sufficiently identified
Under Massachusetts law, trusts are revocable unless explicitly stated otherwise (§203E-602).
Trustee Responsibilities
Trustees in Massachusetts must:
- Act in good faith and adhere to fiduciary responsibilities (§203E-801)
- Follow the “prudent investor rule” unless modified by the trust terms
- Manage trust assets for the benefit of beneficiaries
- Maintain adequate records and provide accountings when required
Trust Creation Methods
Massachusetts trusts can come into existence through:
- Transfer of property to a trustee during life
- Declaration that the settlor holds identified property as trustee
- Exercise of a power of appointment in favor of a trustee
- Transfer of property at death through a testamentary trust
Special Considerations
Estate Taxes
Massachusetts imposes its own estate tax on estates valued over $2 million, with rates up to 16%. This is one of the lowest estate tax thresholds in the country. The federal estate tax applies only to estates exceeding $13.99 million (2025 threshold).
This means even moderate-sized estates in Massachusetts may face state estate tax liability, making tax planning an essential component of Massachusetts estate planning.
Simplified Probate Options
Massachusetts offers streamlined procedures for smaller estates:
Small Estate Procedure
Eligibility:
- Estates valued under $25,000 (excluding the value of a vehicle) may qualify for an expedited small estate affidavit process
Process:
- A voluntary personal representative can file an affidavit
- No formal court proceedings required
- Simplified forms and reduced waiting periods
Informal Probate
Massachusetts offers an informal probate process for uncontested estates that requires less court supervision.
Non-Probate Transfers
Massachusetts offers multiple options for transferring assets outside of probate:
Homestead Protections
Massachusetts offers significant homestead protection for primary residences. Through a homestead declaration, homeowners can protect up to $500,000 of their primary residence’s equity from creditors. This protection:
- Must be formally declared through a recorded homestead declaration
- Protects the home from many types of creditor claims
- Continues to benefit surviving family members
- Works alongside (not instead of) proper estate planning
Need help creating the right estate plan for your Massachusetts family?
Our estate planning specialists can help you navigate Massachusetts’ unique laws and create a personalized strategy.
Wills vs. Trusts: Comparison
| Feature | Wills | Trusts |
|---|---|---|
| When It Takes Effect | After death | Immediate (living trusts) or at death |
| Probate Process | Required | Avoided if trust is properly funded |
| Privacy | Public record | Private |
| Challenges | Easier to contest | Harder to contest |
| Cost to Create | Lower upfront cost | Higher upfront cost |
| Ongoing Administration | None until death | Requires funding and management |
| Protection During Incapacity | Requires separate power of attorney | Trustee manages assets |
| Estate Tax Planning | Limited options | More flexibility for tax planning |
When It Takes Effect
Wills: After death
Trusts: Immediate (living trusts) or at death
Probate Process
Wills: Required
Trusts: Avoided if properly funded
Privacy
Wills: Public record
Trusts: Private
Challenges
Wills: Easier to contest
Trusts: Harder to contest
Cost to Create
Wills: Lower upfront cost
Trusts: Higher upfront cost
Ongoing Administration
Wills: None until death
Trusts: Requires funding and management
Protection During Incapacity
Wills: Requires separate power of attorney
Trusts: Trustee manages assets
Estate Tax Planning
Wills: Limited options
Trusts: More flexibility for tax planning
Frequently Asked Questions
Do I need a lawyer to create a will in Massachusetts?
While not legally required, professional legal assistance ensures your will complies with Massachusetts’ strict requirements and helps avoid potential issues during probate.
What happens if I die without a will in Massachusetts?
Your assets will be distributed according to Massachusetts intestacy laws, which prioritize spouses and children but may not align with your personal wishes.
Are handwritten wills valid in Massachusetts?
No, Massachusetts does not recognize holographic (handwritten) wills. All valid wills must be properly witnessed according to statutory requirements.
What makes Massachusetts’ estate tax unique?
Massachusetts has one of the lowest estate tax thresholds in the country at $2 million, with rates up to 16%. This means even moderate-sized estates may face significant state estate tax liability.
How does Massachusetts protect children from disinheritance?
Pretermitted heirs (children born or adopted after will execution) receive an intestate share unless explicitly excluded in the will.
What is unique about Massachusetts’ spousal elective share?
A surviving spouse can claim one-third to the entire estate depending on whether the deceased left descendants or other relatives, regardless of what the will provides.
Can I use a trust to avoid probate in Massachusetts?
Yes, assets properly transferred to a living trust during your lifetime avoid probate upon your death, which can be especially valuable given the public nature of probate in Massachusetts.
What is Massachusetts’ small estate procedure?
Estates valued under $25,000 (excluding vehicles) qualify for an expedited small estate affidavit process that simplifies asset transfer without full probate proceedings.
Conclusion
Creating a will or trust in Massachusetts does not have to be difficult or intimidating. However, Massachusetts presents unique considerations, especially regarding estate taxes, strict will requirements, and homestead protections. Certain circumstances—like second marriages, stepchildren, aging parents, special needs beneficiaries, and business interests—can add complexity and result in unforeseen consequences. Given Massachusetts’ low estate tax threshold, even modest estates benefit from comprehensive planning. Whenever any out-of-the-ordinary issues are present, it’s advisable to consult with an experienced attorney familiar with Massachusetts’ specific laws.
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