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Massachusetts Estate Planning Basics
Pillar GuideMassachusetts18 min read

Massachusetts Estate Planning Basics

Massachusetts estate planning basics: a will under c. 190B, a power of attorney that says the right words, a health care proxy, and a funded revocable trust.

By Settled Editorial

A Massachusetts estate plan starts with four documents. A will under M.G.L. c. 190B, Section 2-502 says who inherits and who settles the estate. A durable power of attorney under Section 5-501 lets someone handle your money if you cannot. A health care proxy under M.G.L. c. 201D, Section 2 names a medical agent. A revocable living trust under M.G.L. c. 203E keeps titled property out of court.

Massachusetts departs from national advice on three of those four, so a checklist written for the country as a whole will steer you wrong here. Your power of attorney is not durable unless it carries wording the statute recognizes. Massachusetts has no living will statute and no transfer-on-death deed for real estate. And an estate can owe Massachusetts estate tax at $2,000,000 while owing the IRS nothing at all.

Use this page as a planning map, not as a fill-in-the-blank kit. Each of these documents hands real authority to another person or moves real property, and one signing slip can undo everything you intended. When a house, a blended family, a business, or a taxable estate is in play, have a licensed Massachusetts attorney draft or review the plan before you sign.

For what happens after a death, read the Massachusetts probate guide. For who inherits when there is no valid will, read Massachusetts intestate succession.

What Massachusetts Law Does When a Document Is Missing

An estate plan is not only for large estates. Here is what the Commonwealth decides on your behalf when a document is not there.

  • No will. The intestate succession scheme in M.G.L. c. 190B, Section 2-102 and the sections after it picks your heirs on a statutory formula. A surviving spouse does not automatically take everything.
  • No durable power of attorney. Someone has to petition the Probate and Family Court to appoint a conservator over your finances under Article V of chapter 190B. That is public, slower, and costs far more than a document signed while you are well.
  • No health care proxy. Massachusetts has no ranked family surrogate list. M.G.L. c. 201D, Section 16 says only that a provider may rely on the informed consent of responsible parties to the extent the law allows, so a contested decision can send your family to court for a guardianship.
  • No plan for titled assets. Property in your sole name passes through the Probate and Family Court, which means filings, a public file, and months of administration. See how to avoid probate in Massachusetts.

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The Four Documents and the Massachusetts Law Behind Each

DocumentWhat it doesMassachusetts law
WillNames who inherits, names the personal representative, nominates a guardian for minor childrenc. 190B, Section 2-502
Durable power of attorneyLets an attorney in fact manage your money and property if you cannotc. 190B, Section 5-501
Health care proxyNames a medical agent and records the limits you want on that agentc. 201D, Section 2
Revocable living trustHolds titled assets, skips probate, plans for incapacityc. 203E, Section 401 creation; Section 602 revocability

Every Massachusetts adult should hold at least the first three. Add a trust, and add finer detail, if you own a home, have children under 18, run a business, hold sizable retirement accounts, or are in a second marriage with children from an earlier relationship.

Your Will

The will is the document that speaks for you in the Probate and Family Court. It names your heirs, names the personal representative who settles the estate, and nominates a guardian for your minor children.

Section 2-501 sets the bar for making one: an individual 18 or more years of age who is of sound mind may make a will. Section 2-502 then requires the will to be in writing, signed by you or in your name by another individual in your conscious presence and at your direction, and signed by at least two individuals who witnessed either the signing or your acknowledgment of it.

Two Massachusetts negatives are worth memorizing. Massachusetts does not accept a handwritten will made in the Commonwealth, and Section 2-503 is marked Reserved, so there is no harmless-error rule to rescue a will that missed a formality. Get the execution right the first time, then make it self-proved under Section 2-504 with a notarized affidavit so no one has to hunt down your witnesses years later. The full walkthrough sits in the Massachusetts will requirements guide.

A will has limits. It cannot move property already titled in a trust, override a beneficiary form, or redirect property held with survivorship rights. Those assets pass on their own terms, which is why the next two sections matter as much as this one.

The Durable Power of Attorney

Here is the single most misunderstood point in Massachusetts planning. Massachusetts never adopted the Uniform Power of Attorney Act, and a Massachusetts power of attorney is not durable by default. Section 5-501 makes a power durable only where the writing contains the words "This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time," or "This power of attorney shall become effective upon the disability or incapacity of the principal," or similar words showing that intent.

Miss that sentence and the document quits at the exact moment your family needs it. Include it, and Section 5-502 confirms that acts your attorney in fact takes during your disability bind you and your successors as if you were competent.

Three more Massachusetts details to check before you sign:

  • There is no statutory short form and no statutory list of powers. Article V, Part 5 of chapter 190B runs seven sections and supplies no fill-in template. Your agent's authority comes from the four corners of your document, so spell out anything you want permitted, such as gifts, changes to survivorship, or trust amendments.
  • Notarization is not a validity rule, but you want it anyway. Part 5 imposes no acknowledgment requirement. Once real estate is involved, M.G.L. c. 183, Section 32 applies the deed acknowledgment and recording law to letters of attorney, and banks and title insurers refuse an unnotarized power regardless of the statute.
  • The power ends at death. Your attorney in fact loses authority the moment you die, and a personal representative takes over through the court. The Massachusetts power of attorney guide covers revocation, third-party protection, and the affidavit under Section 5-505.

The Health Care Proxy

Massachusetts handles medical decisions through one document. M.G.L. c. 201D, Section 2 lets every competent adult appoint a health care agent by signing a proxy, or having it signed at your direction, in front of two other adults who subscribe their names as witnesses and affirm in writing that you appeared to be at least eighteen years of age, of sound mind, and under no constraint or undue influence. Your agent may not serve as a witness. No notary is needed.

Massachusetts has no living will statute, so a standalone page of treatment wishes is guidance for your agent rather than a document a hospital must follow. Put the wishes inside the proxy as express limits on your agent's authority: Section 4 requires the proxy to describe any limitation you intend to impose, and Section 5 is what makes them bind, giving the agent authority over health care decisions subject to any express limitations in the proxy.

Massachusetts proxies always spring. Under Section 6, your agent's authority begins only after your attending physician determines in writing that you lack capacity to make or communicate health care decisions, states the cause, nature, extent, and probable duration of that incapacity, and enters the determination in your permanent medical record. If you recover capacity, the agent's authority stops. Read the Massachusetts health care proxy guide for the witnessing rules and how a MOLST form fits alongside the proxy.

The Revocable Living Trust

A trust is optional, and plenty of Massachusetts families do fine with a will alone. The case for a trust is stronger here than in most states for one reason: Massachusetts never enacted a transfer-on-death deed, so a funded revocable trust is the usual way to keep a house out of the Probate and Family Court.

Massachusetts runs trusts under the Massachusetts Uniform Trust Code. M.G.L. c. 203E, Section 602 says that unless the terms of a trust expressly provide that it is irrevocable, the settlor may revoke or amend it, so a standard living trust stays under your control for life. At your death the successor trustee you named distributes what the trust holds, without court supervision.

Two cautions. First, a trust only reaches the assets you actually retitle into it. Changing the deed and the account registrations is the step people skip, and an unfunded trust controls nothing. Second, Section 602 has a trap for agents: your attorney in fact may revoke, amend, or distribute trust property only to the extent both the trust terms and your power of attorney expressly authorize it. Check that the two documents say the same thing before you rely on either.

A revocable trust does not by itself reduce the Massachusetts estate tax. Treat it as a probate and incapacity tool. The Massachusetts revocable living trust guide walks through drafting, deeding the house in, and naming a successor trustee. To compare a trust against the other transfers that skip court, read how to avoid probate in Massachusetts.

Beneficiary Forms and How You Hold Title

Beneficiary designations and survivorship titles beat your will. If your will leaves a retirement account to one child while the account form names another, the form wins. M.G.L. c. 190B, Section 6-101 makes those contract-based transfers nontestamentary, which is why they never reach the court.

  • Bank and brokerage accounts. A payable-on-death line on a bank account and a transfer-on-death registration at a brokerage move the balance the day you die. The Massachusetts transfer-on-death registration rules reach securities and security accounts, not land.
  • Retirement plans and life insurance. These pass by the form on file. Name a first choice and a backup, and refresh both after a marriage, a divorce, or a death in the family.
  • Real estate. Married couples often hold the home as tenants by the entirety, which passes to the survivor outside probate. Since there is no Massachusetts transfer-on-death deed, the remaining ways to keep a house out of court are survivorship title or a funded trust.
  • After a divorce. Section 2-804 revokes many provisions in favor of a former spouse when the divorce becomes final, though it does not reach every plan governed by federal law. Update the forms yourself rather than trusting the statute to do it.

Line these designations up with your will and trust. Also keep a list of the online accounts your fiduciary will need, and read the Massachusetts digital assets guide before you write passwords into any document.

Record a Homestead Declaration

This one is close to free and most Massachusetts homeowners never do it. Under M.G.L. c. 188, Section 1, an automatic estate of homestead of $125,000 protects the equity in your principal residence from most unsecured creditors. Record a written declaration at the registry of deeds under Section 5 and the protected amount rises to $1,000,000.

Section 7 carries an existing homestead past the death of the holder for a surviving spouse and minor children who live in the home, which is why this belongs in a planning conversation and not only in a bankruptcy one. The shield stops unsecured creditors. It does not stop a mortgage, a tax lien, or a support order, and Massachusetts has no separate probate homestead allowance, since c. 190B, Section 2-402 is Reserved.

Naming a Guardian for Minor Children

If you have children under 18, your will is where you name the adult who would raise them. M.G.L. c. 190B, Section 5-202 lets a parent appoint a guardian for any minor child by will or by another writing signed by the parent and attested by at least two witnesses, revoke or amend that appointment, and set limits on the guardian's powers. The court still confirms the appointment, and a clear nomination spares your family a fight during a terrible week.

Many parents pair the nomination with a trust that holds the children's inheritance until they are older, rather than handing a lump sum to an 18-year-old. The Massachusetts guardianship planning guide covers how the Probate and Family Court handles the appointment.

A dog or a cat needs the same forethought and gets its own statute. M.G.L. c. 203E, Section 408 allows a trust for the care of an animal alive during the settlor's lifetime, so name a caregiver and fund the arrangement rather than leaving a pet in a will clause. See the Massachusetts pet trust guide for how those trusts are enforced and when they end.

The $2,000,000 Massachusetts Estate Tax Trigger

Massachusetts levies its own estate tax, and the trigger sits far below the federal one. Under M.G.L. c. 65C, Section 2A, subsection (g), the estate of a decedent dying on or after January 1, 2023 owes no Massachusetts estate tax if the value of the federal taxable estate is not more than $2,000,000. Subsection (f) allows a credit against the tax for those deaths, capped at $99,600.

Read that carefully, because $2,000,000 is not an exemption. Once the estate clears the line, the tax is computed on the whole Massachusetts taxable estate and then reduced by the capped credit, not computed only on the excess. The measure counts the house, the survivorship property, the payable-on-death accounts, and the funded revocable trust, so a family that never thought of itself as wealthy can land above it. The return is Form M-706, and the year of death decides the threshold, since deaths from January 1, 2006 through December 31, 2022 ran on a $1,000,000 figure, and earlier deaths on figures that differed again.

Massachusetts has no inheritance tax on what an heir receives. If you expect to sell inherited property later, read the Massachusetts step-up in basis guide and the guide to selling inherited property.

Can You Leave Your Spouse Out?

Not reliably. Massachusetts did not adopt the Uniform Probate Code elective share. Instead, M.G.L. c. 191, Section 15 lets a surviving husband or wife file a waiver of the will within six months after probate and claim a statutory share, which varies with who else survives and pays part of the share as a life income interest rather than outright. A prenuptial or postnuptial agreement is the usual way couples handle this on purpose. Do not assume a will alone settles it.

Review Your Plan When Life Changes

Documents drift. Check yours every three to five years, and sooner after any of these:

  • A marriage or a divorce.
  • The birth or adoption of a child.
  • The death of a beneficiary, an agent, or your named personal representative.
  • A move to Massachusetts from another state.
  • A large change in what you own, such as buying a home or selling a business.

To change a Massachusetts will you can sign a codicil or sign a fresh will that revokes the old one, and a fresh will is usually cleaner. Whoever you name to serve should know it in advance, so send them the Massachusetts executor duties guide rather than leaving the job as a surprise.

Frequently Asked Questions

What documents do I need for a Massachusetts estate plan?

Four documents carry most of the load: a will under M.G.L. c. 190B, Section 2-502, a durable power of attorney under Section 5-501, a health care proxy under M.G.L. c. 201D, Section 2, and, for many households, a funded revocable trust under M.G.L. c. 203E. Two Massachusetts add-ons matter almost as much: your beneficiary forms and a recorded homestead declaration under M.G.L. c. 188.

Is a Massachusetts power of attorney durable by default?

No. M.G.L. c. 190B, Section 5-501 makes a power of attorney durable only if the writing contains language such as "This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time," or similar words showing that intent. A document without that sentence stops working at the moment your family needs it.

Does Massachusetts have a living will?

Massachusetts has no living will statute. M.G.L. c. 201D creates one advance directive, the health care proxy, which appoints an agent. Written treatment wishes carry legal force as express limits on that agent's authority: Section 4 requires the proxy to describe the limitation and Section 5 makes it bind, so put them inside the proxy rather than on a separate page.

Do I need a trust if I already have a will in Massachusetts?

Not always, though the case for a trust is stronger in Massachusetts than in most states because there is no transfer-on-death deed for Massachusetts real estate. A funded revocable trust under M.G.L. c. 203E is the usual way to keep a house out of the Probate and Family Court here. A trust controls only the assets you retitle into it.

When does an estate owe Massachusetts estate tax?

For a death on or after January 1, 2023, M.G.L. c. 65C, Section 2A(g) says an estate owes no Massachusetts estate tax if the federal taxable estate is not more than $2,000,000. Above that point the tax is computed on the whole Massachusetts taxable estate and then reduced by the credit in Section 2A(f), which is capped at $99,600. Massachusetts has no inheritance tax.

Can I leave my spouse out of my Massachusetts will?

Not reliably. Under M.G.L. c. 191, Section 15 a surviving husband or wife may file a waiver of the will within six months after probate and take a statutory share instead. Massachusetts did not adopt the Uniform Probate Code elective share, so the figures come from chapter 191 rather than from an augmented estate calculation.

Related Massachusetts Guides

This page is general information about Massachusetts estate planning. Planning turns on facts specific to your family and your property, so confirm anything that affects your situation with a licensed Massachusetts attorney before you sign or rely on a document.

Sources:

It is not legal advice.

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Settled Estate is not a law firm and does not give legal advice.

Information current as of July 29, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Massachusetts can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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