Can’t you just write your own Will, in a notebook or on a slip of paper?
What about on a cocktail napkin, or a piece of cardboard?
The answer in Massachusetts is, for the most part, no. But believe it or not, people sure do try.
The short answer: no — but you still want a notary
Not technically. Under M.G.L. c. 190B, § 2-502, a Massachusetts Will has to be in writing, signed by you, and signed by at least two witnesses who watched you sign it or heard you acknowledge your signature. A notary is not on that list. A Will with two proper witnesses and no notary is still a valid Will.
That said, nearly every Will we draft is notarized — and there is a specific reason for it.
What notarization actually does: the self-proving affidavit
The notary is there for the self-proving affidavit under § 2-504. That is a short sworn statement — signed by you and by your witnesses in front of a notary — confirming the Will was signed properly and that you were of sound mind and free of undue influence.
Why it matters shows up years later, at the Probate Court. If your Will is self-proved, § 3-406(b) says proper execution is presumed, and no witness has to be produced at all. If it is not self-proved, someone has to prove it was signed correctly: in an uncontested case § 3-405 calls for the affidavit or testimony of one of the witnesses, and in a contested case § 3-406(a) requires testimony from an attesting witness if one is still in Massachusetts and able to testify.
That means tracking down a person who signed a piece of paper twenty or thirty years earlier. People move. People die. People forget. That is the problem the notary quietly solves.
One useful detail most people do not know: under § 2-504(b), a properly witnessed Will can be made self-proving at any time after it was signed. If your Will was never notarized, it is usually fixable without starting over.
Are handwritten Wills valid in Massachusetts?
Massachusetts does not care whether your Will is handwritten, typed or printed. It cares about how it was signed.
A holographic Will means one that is handwritten and unwitnessed. Some states honor those. Massachusetts does not — and there is no safety valve here either. Section 2-503, the “harmless error” provision that lets some states rescue a defective Will, is marked “Reserved” in the Massachusetts code. It was left deliberately blank.
So the two-witness rule in § 2-502 is the whole test. A handwritten Will signed in front of two witnesses is valid. The identical words on the identical page with no witnesses are not a Will at all. And the napkin, the notebook and the piece of cardboard almost never have witnesses.
One exception: Wills signed in another state
If you signed your Will somewhere else, § 2-506 lets Massachusetts honor it if the signing complied with the law of the place where it was signed, or of the place where you were domiciled, kept a home, or were a national — either when you signed it or when you died. So a handwritten, unwitnessed Will made in a state that recognizes them can still be good here. If you moved to Massachusetts with an out-of-state Will, that is worth having looked at rather than assumed.
Why people still get this wrong
Lots of folks think that if they clearly write things out in a notebook, they can save themselves the cost of having a lawyer draft the Will.
There are several problems with this:
- You need two witnesses — and a notary if you want the Will to be self-proving
- You need clauses with regard to “proving” certain aspects of the Will
- You just don’t know what you don’t know. For example:
- Are you electing the most streamlined form of Probate? New forms became available in 2012.
- Are you giving your Personal Representative (formerly called Executor) authority to properly deal with your assets, including real estate? Real estate powers have to be explicitly stated.
- Are you clear about who your beneficiaries are? What if they predecease you? What if they die a few days after you?
- What about assets you want to leave to your children but you want them protected if your child got divorced?
- Are any of your beneficiaries under 18? If so, who controls the money?
- Did you name guardians for your underage children?
- What about estate taxes?
The bottom line is that, if you are not trained in drafting these documents, you simply don’t know what questions to ask yourself. Don’t try this at home. Hire someone who does this every day, and trust their advice.
You don’t want to get this wrong.
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