Creating a last will and testament can ensure that your family and property are protected and cared for in the future. A will can be used to divide assets and property among people and organizations, and, importantly, it can authorize trusted individuals to serve as personal guardians to any minor children or to serve as executors of the will. This authorization is an essential part of the estate planning process, which is why you should consult an attorney to help you establish it.
An adept Boston wills lawyer can help you create a comprehensive will to best support your intentions, clarifying any confusion you may have throughout the process.
Massachusetts state law sets out the requirements for making a valid will. Section 2-502 of the Massachusetts Uniform Probate Code (MGL c. 190B s. 2-502) sets out rules that are as strict as they are simple. For example, a will that does not have two witnesses is simply not a valid will. A Boston wills lawyer can do what no online service can: ensure that the formalities of executing a will are carefully observed.
In Massachusetts, a creator of a will may change or revoke their will at any time while they are living, and there are several ways to do so.
A creator of a will can destroy their will, either by tearing it up or burning it, as long as they intend to destroy it in this manner (hint: this is not the best way to revoke or change your will!). Another way to revoke a will is to create a new one. If the creator states in writing that the new will revokes the old, that is enough to revoke the older will. If a person creates a new will with terms that are contradictory to the older will, this alone is sufficient to terminate the old will.
Courts often have to decide whether a new will was meant to supersede an older one in estate matters when there is no express intent by the creator within the will to revoke the old will, and it is unclear whether the new terms are contradictory.
If the new will disposes of all the estate assets, a court will assume the creator intended to make the new will authoritative and the older will inactive. Otherwise, a court will assume the estate holder wanted to supplement their original will, not replace it. In that circumstance, an executor must follow the instructions of all valid wills. If there is some discrepancy, the executor will default to the newer will.
When a person wants to make substantial changes to their will, it is best to expressly revoke the old version and go through the process of creating a new one to avoid confusion down the line. A Boston wills attorney could help with this process. If a person wishes to make simple changes to their will, they also have the option of adding an amendment to an existing will, known as a codicil. As long as the person created the codicil while mentally competent and of sound mind, a court will uphold the amendment.
Under state law, in the case of divorce, any language within a will that leaves the property of the estate holder to their spouse will be revoked. Once divorced, the spouse can no longer serve as the executor of the will—so it is very important for you to work with your estate planning attorney to update your plan after a divorce!
However, if the will or the divorce decree authorizes the ex-spouse to continue serving as the executor of the will, or if specific language exists that states the divorce does not affect the will’s provisions, a court will uphold those terms. The same holds true if the two spouses remarry. A skilled Boston attorney could address any further concerns regarding divorce’s impact on an existing will.
If you are looking to create a will or revise an old one, it may be daunting to navigate this complex area of law without professional assistance. A qualified Boston wills attorney could help you make the best choices for your future and the future of your beneficiaries. Contact TEAM Estate Planning today to discuss your situation.