Will Lawyers Assisting Individuals in Melrose to Plan for The Future
It is a common misconception that when an individual dies, assets such as their home, automobiles, and other personal property will automatically come into the possession of their loved ones. However, there are certain circumstances where this is not the case, and if an individual dies without leaving a will, there can be a long, drawn-out period in which the will must go through the process of probate.
One of the most important steps you can take to protect your family is to create a will so that there will be no uncertainty or confusion about your final wishes after you pass away. A will can stipulate many issues such as the distribution of assets, funeral arrangements, and guardianship of any minor children.
What Elements Need to be in Place for a Will to be Considered Valid in Massachusetts?
In order for a will to be considered valid in Massachusetts, there are certain factors that must be present. First, the individual creating the will, the testator, must be at least 18 years of age and considered to be of sound mind. In order to be considered legally of sound mind, the testator must understand the purpose of the will, the nature of the property that they own, and which individuals could claim their property.
If these conditions are successfully met, then more legal considerations must also be present for the courts to consider the will to be valid.
The will must be:
- In writing
- Signed by the testator or by another individual in the testator’s name in the presence of the testator and at their direction.
- Witnessed and signed by at least two witnesses
Any individual who is at least 18 is qualified to be a witness if they are considered to be generally competent. In simplified terms, that means that a witness has the ability to testify regarding the circumstances that surround the will should it become necessary.
Who is Eligible to be Appointed as a Personal Representative of an Estate?
A personal representative, commonly known as an executor of a will, is appointed by the court to manage, collect, and transfer estate property to the rightful heirs and beneficiaries of an estate.
In cases where the decedent died and left a will, the individual who has legal priority to be named as the personal representative of an estate is the person who was named as such in the will itself. The court will still need to determine if the will is considered to be valid. If the individual named in the will is determined to be qualified, they will be appointed over any other individual.
If the decedent died and did not leave a will, the individual who is considered to have legal priority is the surviving spouse. If the decedent was not married when they passed away, legal priority then falls to the decedent’s legal heirs.
What are the Grounds to Contest a Will?
In order for a will to be legally contested, there are certain conditions that must be met. They are as follows:
- The deceased lacked the mental capacity to compose a will: If it can be proven the testator of the will was unable to understand all of the conditions necessary to create a will, then the will may be ruled invalid by the courts.
- The deceased did not properly understand and approve the content of the will: Some of the factors included in this can be if the testator was hard of hearing, visually impaired, was frail or unwell, or lacked the general ability needed to read and understand the will, or supposedly directed that the will be signed by another individual other than themselves.
- Undue influence was exerted: If it can be proven that the testator was forced against their wishes to compose or sign the will, then this could be potential grounds for having the will declared invalid.
- Forgery and fraud: If there is any doubt that the signature on the will is genuine, then it is best to retain the services of a handwriting expert who can authenticate or disprove the validity of the signature. If it is determined that the signature is a forgery, then the will is considered to be invalid.
- Rectification: There may be clerical errors included in the will that cause it not to reflect the wishes of the deceased accurately. If this is the case, the court will be obligated to rectify the will in order to reflect the true intentions of the decedent. These types of claims must be submitted within 6 months of a grant of probate being issued.
Do I Have to Hire a Will Lawyer in Order to Create a Will?
You are not required to hire a lawyer if you wish to create a will in Massachusetts. However, it is highly recommended that you speak with a knowledgeable attorney who can advise you regarding issues that must be addressed in a will, depending on your personal life circumstances.
When creating a last will and testament, you will want to keep in mind that the time after your death will most likely be a difficult and trying time emotionally for your family and loved ones. If a will does not meet certain legal requirements, it may mean more time spent in probate or even result in the will being declared invalid. All of these issues could cause even more stress for your family, especially if they are dependent upon money or property that they will receive from the will.
The attorneys of the Martino Law Group, LLC of Melrose, MA, have extensive experience composing wills and other matters related to estate planning needs. Contact our law offices by calling (781) 606-9002 to schedule a free consultation with one of our experienced family law attorneys.