MASSACHUSETTS WILLS I. Intestate Succession A. Vocabulary 1. Probate – Court proceeding in which a. It is judicially determined that decedent left a validly executed will, or that the decedent died without a will and his intestate heirs are determined; and b. A personal representative (executor if named in the will, administrator if appointed by the court) is appointed to administer the decedent’s estate. 2. Heirs – Persons who take by intestacy. 3. Beneficiaries (devises, legatees) – Persons who take under a will. 4. Intestate distribution riles applies when: a. Decedent left no will (or “will” was not validly executed); b. The will does not make a complete disposition of the estate (resulting in a partial intestacy); c. An heir successfully contests the will, and will is denied probate; and d. Testator marries after the will’s execution, in which case the will is revoked by operation of law. e. Intestacy rules also invoked in questions involving omitted child statutes. 5. The MA statutes use “issue” throughout. The terms “issue” and “descendants” are synonymous, and include lineal descendants (child, grandchildren, etc.) by blood or adoption. B. Intestate Decedent Survived by Spouse 1. Survived by issue If intestate decedent is survived by a spouse and issue(s) (descendants), whether the issue are of this marriage or from an earlier marriage, the surviving spouse takes one-half (1/2) of the estate and the issue(s) take the other half divided equally among all.
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
MASSACHUSETTS WILLS
I. Intestate Succession
A. Vocabulary
1. Probate – Court proceeding in which
a. It is judicially determined that decedent left a validly executed will, or
that the decedent died without a will and his intestate heirs are
determined; and
b. A personal representative (executor if named in the will, administrator if
appointed by the court) is appointed to administer the decedent’s
estate.
2. Heirs – Persons who take by intestacy.
3. Beneficiaries (devises, legatees) – Persons who take under a will.
4. Intestate distribution riles applies when:
a. Decedent left no will (or “will” was not validly executed);
b. The will does not make a complete disposition of the estate (resulting
in a partial intestacy);
c. An heir successfully contests the will, and will is denied probate; and
d. Testator marries after the will’s execution, in which case the will is
revoked by operation of law.
e. Intestacy rules also invoked in questions involving omitted child
statutes.
5. The MA statutes use “issue” throughout. The terms “issue” and
“descendants” are synonymous, and include lineal descendants (child,
grandchildren, etc.) by blood or adoption.
B. Intestate Decedent Survived by Spouse
1. Survived by issue
If intestate decedent is survived by a spouse and issue(s) (descendants),
whether the issue are of this marriage or from an earlier marriage, the
surviving spouse takes one-half (1/2) of the estate and the issue(s) take
the other half divided equally among all.
NOTE: If decedent wants to leave entire estate to spouse, MUST write a will to avoid
intestate statutes.
2. Not survived by issue
� If an intestate decedent is survived by spouse and other kindred (i.e.
relatives by blood or adoption) but NOT by issue, the surviving spouse
takes first $200,000 plus one-half (1/2) of the balance. Kindred take
remaining one-half (after spousal share of $200K + 1/2).
� $200,000 comes from personal property first. If not enough personal
property to cover $200K, real property can be sold or mortgaged to get
$200K.
3. Not survived by issue NOR kindred
If an intestate decedent is survived by his or her spouse but NO kindred
(no living relations by blood or adoption), the surviving spouse inherits the
ENTIRE estate.
This rule is rarely invoked, as MA sets NO LIMIT on the degree of
relationship needed to take as heir. If one living relative is found, no
matter how remotely, “first $200K plus one-half balance” rule applies.
C. Other Statutory Rights of Surviving Spouse
These rights take precedent over creditor’s claim.
TIP: In ANY question involving a surviving spouse, whether decedent left a will or died
intestate, the answer can be strengthened if also discuss the statutory rights below.
Thus it might be appropriate to say something like “In addition, [spouse] is entitled to
the following statutory rights, which take precedent over creditor’s claims. These
amounts passing to [spouse] under [decedent’s will] [by intestacy] [as an elective
share].”
1. Right to occupy residence for 6 months
Spouse might remain in the house of a deceased spouse for six months
without charge for rent. This would be relevant ONLY if the deceased
owned a house in his or her name. If house was held in joint tenancy or
tenancy by entirety, spouse would take house by right of survivorship.
2. Spouse’s allowance
� Upon petition, the probate court may grant the surviving spouse an
allowance to provide for “necessities” “for a short time until she has an
opportunity to adjust herself to the new situation”. Amount of the
spouse’s allowance is in court’s discretion, taking into account all
circumstances of the case, including the standard of living to which the
spouse had been accustomed (NOTE: NOT a dollar amount).
� The spouses allowance is over and above amounts passing to the
spouse by will, intestate succession, etc., and takes priority over debts
and administration expenses.
D. Inheritance by Issue – Per Capita Representation
If inheritance is by children and issue of deceased children (or by brothers,
sisters, and issue of deceased brothers, sisters, etc), the distribution,
although sometimes referred to a per stirpes, is per capita with representation
(“per capita at the first level; by representation at the next level”) – Issue of
deceased children take by representation. You go down to the first
generational level at which there are living takers and then one share for
each line of issue/descendant.
E. Intestate Decedent NOT Survived by Spouse or Issue
1. All to parents (one-half each) or surviving parent (all).
2. If not survived by parents, to issue of parents – Brothers, sisters, and
issue of deceased brothers and sisters who take per capita with
representation.
3. If not survived by parent, or issue of parents, to “kindred” in nearest
degree of kinship. MA does NOT have a “no laughing heirs” statute (as
does the Uniform Probate Code, which eliminates inheritance by remote
relatives). In MA, there is NO limit to the degree of kinship that qualifies
one to be heir. ONLY if the decedent left no living kin by blood or adoption
does the estate escheat to the Commonwealth.
F. Adopted Children, Non-Marital Children
1. Adopted Children
� Adopted children and their issue have full inheritance rights from the
adoptive family (and vice versa).
� A gift to someone’s “issue” presumptively includes adopted offspring.
� Child is not adopted for this purpose until final decree of adoption is
entered.
� Once a child has been adopted by a new family (e.g. an infant
adoption), the child has NO inheritance rights from the natural parents
or their kin. EXCEPT where child is adopted by spouse of a natural
parent after the other natural parent has died (e.g. Child’s father dies,
mother remarries; second husband adopts Child. Child has
inheritance rights from her mother, her adoptive father, AND family
members of her deceased biological father).
2. Non-marital children
a. Non-marital children do NOT inherit from natural father, UNLESS
i. The mother and father married after the child’s birth AND the father
acknowledged the child as his child; OR
ii. Paternity was established in a paternity suit; OR
iii. Paternity is established in probate proceedings in action
commenced within ONE YEAR after the decedent’s death.
NOTE: The one-year statute of limitations is probably unconstitutional (Supreme Court
said so in a case turning down a Texas statute) – e.g. 5-year-old kids cannot bring suit.
Not fair that kid loses right because someone else didn’t bring suit.
b. Woodward v. Commisioner of Social Services – Sperm bank case
Posthumously conceived child can inherit… IF it is affirmatively shown
that decedent (1) consented to the posthumous conception, (2)
consented to support any resulting child, and (3) prompt and orderly
administration of the estate is not compromised – The one-year SOL
for paternity suits does not apply.
c. Non-marital children have full inheritance rights from mother and
mother’s kin.
d. Non-marital children have no inheritance rights from mother’s husband
if husband did not adopt the child, UNLESS adoption by estoppel
(equitable adoption – Unperformed agreement to adopt) – Step
children have NO basis for inheritance.
G. Deaths in Quick Succession
1. Under the Uniform Simultaneous Death Act (USDA), when title to property
depends on order of deaths and there is no sufficient evidence that the
persons have died otherwise than simultaneously, the property of each
passes as though he or she survived (absent contrary provision).
a. Intestacy
As though intestate survived and heir predeceased.
b. Wills
Estate distributed as though the testator survived and the beneficiary
predeceased – This will invoke the lapsed gift doctrine and the anti-
lapse statute.
c. Insurance
A though insured survived and beneficiary predeceased. As though
IRA account owner survived and beneficiary predeceased.
2. If joint tenants with right of survivorship or tenants by entirety die
simultaneously – One-half (1/2) is distributed through A’s estate as though
A survived B, and one-half (1/2) is distributed thru B’s estate as though B
survived A. Simultaneous deaths prevent operation of right of
survivorship. In effect, property passes as though a tenancy in common
were involved (one half each).
3. Massachusetts did NOT adopt the Uniform Probate Court “120 hour rule”,
under which a person must survive by 120 hours to take as heir. In MA,
controlling law is the USDA – Five minutes later is sufficient.
H. Lifetime Gifts to Heir or Will Beneficiary
1. Common Law
Lifetime gift to a child was presumptively an advancement (advance
payment) of the child’s intestate share, to be taken into account in
distributing the estate at death (theory was that a parent would always
want to treat all children equally).
2. Massachusetts
Lifetime gift to an heir is NOT and advanced payment UNLESS
a. Declared as such in contemporaneous writing by the donor, or
b. Acknowledged as such in writing (contemporaneous or not) by the
donee, or
c. The will provides for reduction of legacies by any lifetime gifts.
I. Disclaimer by Heir or Beneficiary
All states recognize that no one can be compelled to be a beneficiary or heir
against her will. An intestate heir, will beneficiary, beneficiary of a life
insurance policy or an employee benefit plan, or any other interest in property
can disclaim the interest, in whole or in part. A disclaimer, once made, is
irrevocable.
1. To be a valid disclaimer
a. Must be in writing and signed
If real property is involved, must be acknowledged before a notary
public and an attested copy must be recorded in the county where land
is located.
b. Must be filed with the probate court within 9 months after decedent’s
death.
2. Any interest can be disclaimed (e.g. bequest by will, life insurance,
employee death benefits, powers of appointement, etc).
Surviving joint tenant or tenant by the entirety can disclaim, but only to the
extent that the decedent has furnished the consideration for the property
acquisition.
3. Disclaimer can be partial (e.g. “I disclaim ½ of the interest bequeathed to
me).
4. Personal representative can disclaim on behalf of deceased beneficiary or
heir.
5. Guardian or conservator can disclaim on behalf on incapacitated
beneficiary or heir, IF court finds a disclaimer is the best interest of the
estate of such beneficiary or heir.
6. Distribution of Estate
If heir disclaims, estate distributed as though disclaimant predeceased –
Disclaimant’s share passes by representation to disclaimant’s
descendants – Disclaimant’s inheritance passes directly to disclaimant’s
descendants/issues/children with NO gift taxes.
7. Irrevocable Intervivos Trusts
For irrevocable intervivos trusts, beneficiary must disclaim within 9 months
after the trust is created. The trust is read as though disclaimant was
dead when the trust was created.
A disclaimer can be made even if the trust contains a spendthrift clause
barring transfer of beneficial interests because
a. Disclaimer is not a transfer, and
b. Spendthrift restriction does not attach until beneficiary accepts the trust
interest.
8. A disclaimer cannot be used to defeat creditor’s claims if the disclaimant is
insolvent.
J. Non-Probate Assets
Non-Probate assets are interests in property that do not pass under the
decedent’s will (if testate), do not pass by intestacy if decedent left no will,
and are not past of probate estate for purposes of administration.
Major types (also called nontestamentary assets):
1. Property passing by right of survivorship – Joint bank account, tenancy by
entirety, etc.
2. Property passing by contract – Life insurance, employee retirement
benefits, where the contract governs change of beneficiary of distribution
of assets.
3. Property held in trust, including a revocable trust, where trust governs the
distribution of assets.
4. Property over which the defendant held a power of attorney.
II. Execution of Wills
A. Requirement for a Validly Executed Will
1. Testator must be at least 18 years old.
a. Signed by testator or by proxy signature – Someone at testator’s
direction and in her presence.
Any mark intended as testator’s mark satisfies the signature
requirement.
b. Two attesting witnesses – No age requirement, but some have
“sufficient understanding”.
c. Testator must sign will (or acknowledge earlier signature) in each
witness’s presence.
d. Each witness must sign in the testator’s presence.
2. Codicil, a later amendment or supplement to a will, must be executed with
same formalities.
3. Some states impose the following additional requirements, NOT required
in MA.
a. That the testator sign “at the foot or end” of the will – In MA signature
can appear anywhere.
b. That witness know they are witnessing a will as distinguished from
some other legal document – In MA no “will publication” requirement.
c. That witnesses sign in each other’s presence – In MA as long as each
witness signed in testator’s presence, they do NOT have to sign in
each other’s presence.
4. Signature Timing
a. Two VERY OLD Massachusetts cases (1900 & 1911) – Witnesses
attest to testator’s signature, which must be on the will when they sign.
b. More recent cases in other jurisdictions (the “better view”) – Exact
order of signing is not critical when the execution ceremony is a
contemporaneous transaction.
BUT even under the “better view”, if testator’s forgot to sign when
witnesses signed, and added his signature three days later in some
witnesses’ presence, not a contemporaneous transaction and will be
denied project.
B. What Constitutes Being in Testator’s “Presence”?
In MA, the testator must sign the will (or acknowledge her earlier signature) in
each witness’s presence, AND each witness must sign in testator’s presence.
1. Most states apply the liberal conscious presence test
It is not necessary that testator should actually be able to see the
witnesses when they sign. They are in his presence whenever he is so
near to them that he is conscious of where they are and what they are
doing.
2. Some old MASSACHUSETTS cases indicate that MA has adopted the
line of sight (scope of vision) test – Witnesses must be in testator’s
uninterrupted line of sight (i.e. no impediment to visual contact).
NOTE: If the witnesses take the will to an adjoining room and sign on a table that was
visible to testator through the doorway, witnesses have signed in testator’s line of sight
(and thus “presence”). BUT if the witnesses sign the will on a table on the other side of
the wall, the “line of sight” test is not satisfied. And if immediately after signing the will,
the testator has a massive heart seizure and dies, and then the witnesses sign, they did
NOT signed in testator’s presence.
C. Interested Witness Statute – “Purging Statute”
Interested witness situation never affects validity of the will, but beneficiary
loses legacy (beneficiary gets nothing), UNLESS there were two disinterested
attesting witnesses – supernumerary rule.
1. If the spouse of the beneficiary is a witness, the gift is void.
2. Interest is determined at the time the will is signed.
3. ONLY beneficiary’s spouse triggers the statute and voids the gift (i.e.
daughters, cousins, agents are allowed).
4. Statute applies to the beneficial gift, NOT earned compensation
(beneficiary can still serve as executor and receive compensation).
5. Contingent gifts do no trigger statute. ONLY direct gifts trigger the statute.
D. Holographic Wills, Oral Wills
1. Uniform probate court and about 30 other states recognize holographic
wills – In testator’s handwriting and signed, but NOT witnessed by
attesting witnesses.
2. Massachusetts does NOT recognize holographic wills. In
Massachusetts, ALL wills must be in writing, signed by the testator, and
witnessed by two witnesses.
3. Massachusetts does recognize oral wills under VERY limited
circumstances – Valid only for soldiers in active military service and
mariners at sea, and then for personal property only.
4. Under Uniform Execution of Foreign Wills Act, a will executed in another
state is admissible to probate in MA if executed in accordance with (MED):
a. MA law,
b. Execution law – Law of place where the will was executed, or
c. Domicile law – Law of place where the testator was domiciled, either
when will was signed or at her death.
NOTE: As long as holographic will done in state where it was legal, can be probated in
MA.
III. Revocation of Wills
A. Valid Revocation – A will can be revoked only if
1. By a later testamentary instrument, executed with appropriate formalities,
2. By physical act (burning, canceling, writing VOID across the face, or
obliterating)
a. Anything done to signature by testator shows an intent to revoke the
entire will and is considered a “decisive act of revocation”.
b. Physical act must be on the will, NOT a copy.
c. To be valid revocation by physical act by another person (by proxy)
must be (1) at testator’s direction, and (2) in testator’s presence.
d. If will destroyed by physical act, but not validly revoked.
“Proof of lost wills” rules:
(1) Proof of due execution (testimony of attesting witnesses) as in
any case.
(2) Cause of will’s nonproduction must be proved – Must
overcome presumption of revocation.
(3) Contents must be proven by secondary evidence (e.g.
photocopy). Any oral testimony as to will’s contents must be
“strong, positive, and free from doubt”.
3. By operation of law.
B. Presumption as to revocation
1. Where a will, last seen in testator’s possession or control, is not found
after death, presumption is that testator revoked it by physical act.
2. Where a will, last seen in testator’s possession or control, is found
mutilated after testator’s death, presumption is that testator did the
mutilating (i.e. revocation by physical act).
3. Neither presumption arises if will was last seen in the possession of
someone adversely affected by its contents.
4. Evidence is admissible to rebut presumption if revocation where will
cannot be found or is found in damaged condition (e.g. will destroyed in
fire that killed testator).
5. Where a will is executed in duplicate (two signed and witnessed copies),
testator’s destruction of the duplicate copy in his possession revokes the
will even though other copy is found unscathed.
6. Codicil – Effect of two wills executed one after the other without any
revocation language.
a. Read both wills together.
The second “last will” is treated as a codicil to the first will, and revokes
the first will only to the extent of inconsistent provisions. But if the
second will is wholly inconsistent with the earlier will, first will is
revoked by implication.
b. Revocation of a codicil to a will does not revoke the will; the part of the
will that was modified by the codicil is restored and takes effect as
though codicil had never been written.
C. Revival of Revoked Wills
1. Common law and majority rule – No revival of revoked wills
When testator executed the second will containing a revocation clause,
will one was legally dead. It could not be revived unless:
a. It was re-executed – Signed by testator and two witnesses, or
b. The doctrine of “republication by codicil” applies (e.g. testator validly
executes a codicil to will one that makes various changes).
2. Massachusetts
A revoked will is not revived unless:
a. The will is still in existence (i.e. it hasn’t been destroyed), AND
b. There is evidence that testator intended to revive earlier will.
D. Dependent Relative Revocation (DRR)
1. Permits a revocation to be disregarded when the act of revocation was
premised upon, conditioned upon, dependent upon a mistake of law as
to the validity of another disposition. Effect will be to disregard the
revocation of Will 1 and permit its probate. Test – Does this come close to
what testator tried, but failed to do?
2. DRR = Second Best Doctrine
DRR should not be applied unless the distribution that results from
disregarding the revocation comes from closer to doing what the testator
tried (but failed) to do than an intestate distribution. If revocation of Will 1
is independent of the testator’s intent in drafting Will 2 then to disregard
the revocation would defeat testator’s intent and intestate distribution rules
will be applied.
E. Changes on Face of Will after it has been Executed
1. Partial revocations by physical act are valid in MA.
2. Words added to a will after it has been signed and witnessed are
disregarded as unattested words – They were not part of the duly
executed will. ONLY the words present when the will was signed
constitute the final (last) will.
3. If testator crossed out a portion of the will and adds another BEFORE the
will is signed and witnessed, the changes are valid IF it can be
established by proof that the words were part of the duly executed will.
4. If testator crosses out some part of the will, the part has been revoked by
physical act. DRR by mistake of law will be used to honor testator’s intent
(e.g. crosses out “$2,000” and writes “$5,000”, beneficiary entitled to
$2,000 even though clause revoked. If testator, however, writes “$500”,
DRR would defeat intent and intestate rules will apply).
IV. Beneficiary Dies During Testator’s Lifetime
A. Anti-Lapse Statutes
When a will beneficiary predeceases the testator, the gift lapses (fails), unless
the gift is saved by the anti-lapse statute. Principle – Cannot make gift to a
dead person. Dead person cannot hold title to anything.
1. The MA anti-lapse statute applies if the beneficiary was a child or other
relative of the testator.
Requirements:
a. The deceased beneficiary must have been a child or other relative of
the testator, AND
b. Must have left issue who survived the testator.
2. The anti-lapse statute names the substitute taker, the beneficiary’s will is
irrelevant.
3. If a bequest lapses and the anti-lapse statute does not apply (e.g. the
beneficiary left no issue), the lapse gift falls into the residuary estate and
passes under the will’s residuary clause.
4. If the gift is conditioned on beneficiary surviving testator, the gift fails
according to its terms (surviving was a condition to the gift). Gift then falls
into the residuary estate.
B. Lapse in Residuary Gift – Surviving Residuary Beneficiary Rule
1. Anti-lapse statute does not apply to relatives by affinity (e.g. marriage).
Statute applies only to relatives by blood or adoption.
Massachusetts statute – If residuary estate is devised to two or more
persons and gift to one of them lapses, surviving residuary beneficiaries
take the entire residuary estate, in proportion to their interests in the