Disclaimer: This article is for educational purposes only and does not constitute legal advice.
Detailed Answer: Locating and Verifying Original Wills and Codicils in Massachusetts
Under Massachusetts law, probate cannot proceed without the decedent’s original will or codicils. Here’s how to locate and verify these documents before filing a petition:
1. Contact the Decedent’s Attorney
Many Massachusetts residents engage a lawyer to draft their wills. Reach out to the attorney or law firm that prepared the will. Attorneys often retain the original document in a secure file or safe deposit box.
2. Search the Safe Deposit Box
The decedent may have stored the will in a bank safe deposit box. Massachusetts law allows certain individuals—usually the surviving spouse or an appointed personal representative—to obtain a court order to open the box. Check with local banks where the decedent held accounts.
3. Check the Home and Personal Files
Look in the decedent’s personal records: home safes, locked cabinets, file drawers or with other important papers like deeds, tax returns or financial statements. Wills are often kept alongside other estate planning documents.
4. Review Probate Court Records for Deposited Wills
Under M.G.L. c.190 § 11, a testator may deposit a will or codicil with the Probate and Family Court before death. Contact the Register of Probate in the county where the decedent lived to ask if a will is on deposit. See M.G.L. c.190 § 11: malegislature.gov/Laws/GeneralLaws/PartII/TitleIII/Chapter190/Section11.
5. Verify Execution Formalities
Massachusetts law demands specific execution steps. Under M.G.L. c.190 § 2, a valid will must be:
- In writing
- Signed by the testator (or by another at the testator’s direction)
- Attested and subscribed by at least three credible witnesses present at the same time (M.G.L. c.190 § 2).
For codicils, the same formalities apply. Confirm the presence of the testator’s signature, date and the signatures of three witnesses.
6. Address Lost or Destroyed Wills
If the original will is missing, Massachusetts allows probate of a lost will if you can prove:
- The will existed and was in the decedent’s possession before death.
- No one has since altered or revoked it.
- This proof requires testimony from at least two disinterested witnesses. See M.G.L. c.190 § 12: malegislature.gov/Laws/GeneralLaws/PartII/TitleIII/Chapter190/Section12.
Helpful Hints
- Document Your Search: Keep a written log of places and people you’ve contacted.
- Secure Originals: If you find an original will, store it in a safe, locked location until probate.
- Collect Witness Information: Note full names and contact details of the attesting witnesses in case they must testify.
- Consult the Register of Probate Early: A brief call can save time and clarify local customs.
- Prepare for Court Orders: If a safe deposit box or attorney’s office resists release, you may need a court order under local court rules.