Massachusetts Wills: Requirements, Probate Tracks, and Costs

A will in Massachusetts must be in writing, signed by a person at least 18 years old and of sound mind, and witnessed by at least two people who watched the signing or heard the signer acknowledge it.¹ Massachusetts wills are governed by the Massachusetts Uniform Probate Code (MUPC), which sets out how a will is made, how it can be changed or revoked, what happens if someone dies without one, and how the estate moves through the courts afterward.

What Makes a Will Valid

Two conditions attach to the person signing. You have to be at least 18, and you have to be of sound mind.² Sound mind means you understand what property you own, who your natural heirs are, and what it means to leave that property to particular people.

The document itself has to meet three execution requirements under Section 2-502:¹

It must be in writing. Typed, printed, or handwritten all work; a purely oral statement does not.
You must sign it, or someone else may sign your name at your direction and in your conscious presence.
At least two witnesses must see you sign, or hear you acknowledge your signature or the will, and then sign themselves.

Choose Witnesses Who Get Nothing

A witness does not have to be a stranger to the will’s contents, but naming a beneficiary as a witness creates a real problem. Under Section 2-505, a gift to a witness or the witness’s spouse is void unless two other disinterested witnesses also signed, or unless the interested witness can prove the gift was not the product of fraud or undue influence.³ The clean solution is to pick two witnesses who receive nothing under the will.

Make the Will Self-Proving

Massachusetts lets you attach a sworn affidavit to your will, either at signing or later. You and the witnesses sign the affidavit before a notary or other officer authorized to administer oaths, confirming that the signing was voluntary and that you appeared to be of sound mind.⁴ A self-proving will can be admitted to probate without tracking down the witnesses to testify years later. It is a small step at the front end that saves significant hassle at the back end.

Types of Wills Massachusetts Recognizes

The standard is the formal or attested will described above: written, signed, and witnessed by two people.¹ Nearly every will drafted by a Massachusetts attorney is of this type.

A narrow oral (nuncupative) will is allowed for soldiers on active military duty and mariners at sea, and even then it can only transfer personal property, not real estate.⁵ Outside those circumstances, an oral will has no legal force here.

Massachusetts does not recognize holographic wills. A handwritten document without two witnesses does not meet Section 2-502, and while Section 2-502(b) permits a court to consider outside evidence that a document was intended to be a will, relying on that provision is a gamble when two witnesses are all it takes to avoid the question.¹

Changing or Revoking Your Will

A codicil is a written amendment to an existing will. It must be signed and witnessed with the same formality as the original, meaning two witnesses. Codicils suit small changes such as naming a new personal representative or adjusting a single gift. For larger revisions, drafting a fresh will avoids any confusion about which provisions still apply.

You can revoke a will in two ways under the MUPC:⁶

Sign a new will. One that expressly revokes the earlier will replaces it. Even without an express revocation clause, a new will that disposes of your entire estate is presumed to replace the old one.
Physically destroy the original. Burning, tearing, canceling, or otherwise destroying the document with the intent to revoke it works. Someone else can perform the act at your direction and in your conscious presence.

If a later will covers only part of your estate, Massachusetts presumes you meant it to supplement the original rather than replace it. Both documents then govern to the extent they are not inconsistent.⁶

Divorce and New Children

Divorce after signing a will automatically revokes every gift and appointment you made to your former spouse and to relatives of your former spouse who are no longer related to you by blood or marriage.⁷ The will is read as though the former spouse predeceased you. The rule extends to beneficiary designations on life insurance, retirement accounts, and similar instruments. A legal separation that stops short of ending the marriage does not trigger the revocation.

This is a safety net, not a plan. Update your will and beneficiary designations after a divorce, particularly if you want a former spouse to keep receiving something.

Children who arrive after you sign your will are also protected. A child born or adopted after execution is entitled to a share of your estate as though you had died intestate, unless the will itself shows you intentionally omitted the child or you already provided for the child through a non-probate transfer such as a trust.⁸ If you had other children when the will was signed and left them gifts, the after-born child’s share comes out of those existing gifts, divided equally. Updating your will when your family grows lets you control the outcome instead of leaving it to a statutory formula.

What Happens Without a Will

Dying without a valid will means the estate passes by intestate succession. The surviving spouse’s share depends on who else survives:⁹

No surviving children or parents: the spouse takes everything.
All surviving children are also the spouse’s children, and the spouse has no other children: the spouse takes everything.
No surviving children but a parent survives: the spouse receives the first $200,000 plus three-quarters of the remaining balance.
Surviving children who are also the spouse’s children, but the spouse has other children from another relationship: the spouse receives the first $100,000 plus half the remaining balance.
Surviving children who are not all the spouse’s children: the spouse receives the first $100,000 plus half the remaining balance.

What the spouse does not receive passes to the decedent’s descendants. With no surviving spouse, the estate goes to descendants, then parents, then more distant relatives. Intestate succession cannot direct anything to a friend, a charity, or a stepchild who was never legally adopted, and it cannot specify who receives a particular house or heirloom.

The Spouse’s Elective Share

A Massachusetts will cannot fully disinherit a spouse. A surviving spouse who is dissatisfied with what the will provides may file a written waiver of the will and elect to take a statutory share instead. The election has to be filed with the probate court within six months after the will is admitted to probate, and missing that deadline permanently waives the right. The elective share can reach beyond the probate estate through what the MUPC calls the augmented estate, which may include certain lifetime transfers and jointly held property. Anyone planning to leave a spouse less than they might expect should work through the elective share with an attorney before signing.

The Three Probate Tracks

Probate is the court-supervised process of validating a will, appointing a personal representative, paying debts, and distributing what is left. Massachusetts offers three tracks.

Informal Probate

Informal probate is the fastest and most common route. It is an administrative proceeding handled by a MUPC Magistrate rather than a judge, with no court hearings.¹⁰ A magistrate can issue an informal order as early as seven days after death. Informal probate works when the will is uncontested, the original document is available, and no supervised administration is needed.¹¹

Formal Probate

Formal probate is heard by a judge and may involve one or more hearings. You typically need it when someone contests the will, the will is a copy rather than the original, handwritten changes appear on the document, the terms are unclear, or the court must authorize supervised administration.¹⁰ Under supervised administration, the court must approve every significant action the personal representative takes, from selling property to distributing assets.

Voluntary Administration for Small Estates

If the decedent was a Massachusetts resident and left only personal property worth $25,000 or less (excluding any vehicle), the estate may qualify for voluntary administration. This simplified process can begin 30 days after death and avoids formal or informal probate entirely.¹² No prior probate petition can have been filed, and the petitioner must be an interested person. The $25,000 threshold is measured as of the date of filing, not the date of death.

The Personal Representative’s Job

The person appointed to manage the estate is called a personal representative under the MUPC, the role most people know as executor. It carries real responsibility and personal liability if handled poorly. Once appointed, the personal representative takes possession or control of the decedent’s property, pays taxes on those assets, and takes all steps reasonably necessary to manage, protect, and preserve the estate.¹³ Core duties include:

Preparing a detailed inventory of all personal property (wherever located) and all Massachusetts real property within three months of appointment, with values as of the date of death. There is generally no requirement to file the inventory with the court unless specifically ordered or required by statute.¹⁴
Notifying creditors and heirs so they can file claims or object.
Paying valid debts from estate funds before making distributions.
Filing the decedent’s final federal and Massachusetts income tax returns, plus a Massachusetts fiduciary income tax return (Form 2) if the estate earns more than $100 in income after death.¹⁵
Distributing what remains according to the will.

Order in Which Debts Get Paid

When the estate cannot cover every claim in full, Massachusetts sets the order:¹⁶ administration costs first (court fees, attorney fees, and expenses of managing the estate), then reasonable funeral and burial costs, then debts and taxes preferred under federal law, then medical and hospital expenses of the decedent’s last illness (including compensation for caregivers), then debts and taxes preferred under Massachusetts law, then debts owed to MassHealth, then all other claims. No claim within a class outranks any other claim in the same class. A personal representative who pays debts out of order can be personally liable for the difference.

The Creditor Deadline

Creditors generally have one year from the date of death to commence an action against the estate. Process must be served on the personal representative, or a written notice of the claim must be filed with the court, before the year runs.¹⁷ Personal injury and wrongful death claims have a longer window of up to three years from when the cause of action arises, though any judgment can only be satisfied from liability insurance proceeds and not from the estate’s general assets.

Fiduciary Liability

The personal representative is a fiduciary and must act in the estate’s best interest at all times. Mixing estate funds with personal funds, paying yourself unreasonable fees, making self-interested investments, or distributing assets prematurely can all constitute a breach of fiduciary duty. A court that finds a breach may void the actions, remove the representative, or order compensation for losses. Criminal liability can apply if the conduct amounts to theft.

Contesting a Will

Only an interested person can challenge a Massachusetts will. That generally means a beneficiary named in the will, someone who would inherit under intestacy if the will were thrown out, or a creditor of the estate. Common grounds include:

Lack of testamentary capacity. The signer did not understand what they owned, who their heirs were, or what the will would do. Medical records and expert testimony are the usual evidence.
Undue influence. Someone in a position of trust or authority pressured or manipulated the signer. These cases often involve a caregiver or family member who isolated the signer from others.
Fraud. The signer was deceived about the contents of the document or tricked into signing something they believed was not a will.
Improper execution. The will does not meet the signing and witnessing requirements of Section 2-502.

A contest happens inside a formal probate proceeding, and there are two filing deadlines that trip people up. Anyone opposing the petition must file a written Notice of Appearance and Objection before 10:00 a.m. on the return date. Within 30 days after the return date, the objecting party must also file a separate sworn affidavit of objections stating the specific facts and grounds for the challenge.¹⁸ Missing either deadline can end the challenge on a motion from the other side.

What Skips Probate Entirely

Not everything you own goes through probate. Several categories pass directly to a named beneficiary or co-owner regardless of what the will says:

Jointly held property with right of survivorship. Real estate or bank accounts held as joint tenants pass automatically to the surviving owner at death.
Beneficiary designations. Life insurance policies, retirement accounts (401(k)s, IRAs), and payable-on-death or transfer-on-death accounts go to whoever is named as beneficiary.
Revocable living trusts. Assets held in a trust during your lifetime are distributed by the trustee according to the trust terms, with no probate court involvement.

These non-probate transfers often represent the largest portion of a person’s wealth. A common and costly mistake is updating a will while forgetting to update beneficiary designations. If a 401(k) still names an ex-spouse, the account goes to the ex-spouse even if the new will leaves everything to someone else. The automatic revocation under Section 2-804 catches some of these, but federal law (particularly ERISA for employer-sponsored retirement plans) may override state rules for others.

Massachusetts and Federal Estate Tax

Massachusetts imposes its own estate tax separate from the federal tax, at a much lower threshold. For deaths on or after January 1, 2023, a Massachusetts estate tax return (Form M-706) must be filed if the gross estate plus adjusted taxable gifts exceeds $2,000,000.¹⁹ A nonresident who owned real estate or tangible personal property in Massachusetts faces the same filing requirement based on their total worldwide estate. The Massachusetts estate tax is a cliff tax: once the estate exceeds $2,000,000, the entire estate is subject to tax, not just the amount above the threshold.

The federal estate tax applies to much larger estates. For deaths in 2026, the basic exclusion amount is $15,000,000 per individual.²⁰ A federal estate tax return (Form 706) is due within nine months of death, with an automatic six-month extension available.²¹ If the deceased was married and did not use the full exclusion, the surviving spouse can claim the unused portion through a portability election, effectively doubling what the couple can pass tax-free.²² Portability requires filing Form 706 on time even if no tax is owed.

Because the state threshold is $2,000,000 while the federal threshold is $15,000,000, many Massachusetts estates owe state tax without owing any federal tax. A couple with a home, retirement savings, and a life insurance policy can exceed the Massachusetts threshold without thinking of themselves as wealthy.

What Probate Costs

The filing fee for both informal and formal probate petitions in Massachusetts is $375 plus a $15 surcharge, for a total of $390. Each citation carries an additional $15 fee, and each summons costs $5.²³ There is no separate fee for the initial bond or letters of appointment.

Court filing fees are the smallest piece. Attorney fees, typically billed hourly, make up the bulk of probate expenses. Straightforward estates with no disputes may require only a few hours of legal work; contested matters or estates with complex assets can generate tens of thousands of dollars in fees. The personal representative is also entitled to reasonable compensation from the estate, which reduces what beneficiaries receive. A self-proving will, clean records, and organized financial documents do more to keep probate costs down than almost anything else.

1
General Court of Massachusetts. Massachusetts Code Chapter 190B – Section 2-502
2
Mass.gov. Massachusetts General Laws Chapter 190B Section 2-501
3
General Court of Massachusetts. Massachusetts Code Chapter 190B – Section 2-505
4
Mass.gov. Massachusetts General Laws Chapter 190B Section 2-504
5
Justia Law. Massachusetts Code Chapter 191 – Section 6
6
General Court of Massachusetts. Massachusetts Code Chapter 190B – Section 2-507
7
General Court of Massachusetts. Massachusetts Code Chapter 190B – Section 2-804
8
General Court of Massachusetts. Massachusetts Code Chapter 190B – Section 2-302
9
General Court of Massachusetts. Massachusetts Code Chapter 190B – Section 2-102
10
Mass.gov. Learn About the Types of Probate for an Estate
11
Mass.gov. File an Informal Probate for an Estate
12
Mass.gov. MUPC Estate Administration Procedural Guide – Voluntary Administration
13
Justia Law. Massachusetts Code Chapter 190B – Section 3-709
14
Mass.gov. MUPC Estate Administration Procedural Guide – Inventorying, Accounting and Closing the Estate
15
Mass.gov. AP 500 – Estate and Inheritance Tax
16
Mass.gov. Massachusetts General Laws Chapter 190B Section 3-805
17
General Court of Massachusetts. Massachusetts Code Chapter 190B – Section 3-803
18
Mass.gov. MUPC Estate Administration Procedural Guide – Formal Proceedings
19
Mass.gov. Massachusetts Estate Tax Guide
20
Internal Revenue Service. IRS Releases Tax Inflation Adjustments for Tax Year 2026
21
Internal Revenue Service. Instructions for Form 706
22
Internal Revenue Service. Whats New – Estate and Gift Tax
23
Mass.gov. Probate and Family Court Filing Fees