Estate law can be complex, so understanding the responsibilities and limitations of certain roles is crucial. If you’re wondering whether an executor can serve as a witness to a will in Massachusetts, continue reading and speak with a skilled Middlesex County will lawyer today.
What is an Executor?
An executor, sometimes referred to as a “personal representative” under Massachusetts law, is the person named in a will to administer the estate after someone passes away. Their role is to ensure that the deceased person’s final wishes are carried out as intended and as described in the document.
An executor manages the probate process, which can include:
- Filing the will with the Probate and Family Court
- Collecting and protecting assets
- Paying debts, taxes, and expenses
- Distributing property to heirs and beneficiaries
Executors gain authority to administer the will only after the Probate Court formally approves and appoints them.
Why Do You Need a Witness to a Will?
A witness to a will is someone who is present when the testator (the person who creates the will) signs the document. They observe the testator’s signature and then sign the document themselves to confirm its authenticity.
Under Massachusetts law, at least two witnesses are required to be present when a will is signed. They both must be competent adults over the age of 18 and must sign the document in the presence of the testator. This provides legal assurance that the testator signed the will voluntarily and with full knowledge of what they were doing, which helps prevent future challenges to the document’s validity.
Can an Executor Be a Witness to a Will?
In many states, an executor cannot be a witness to a will. Witnesses must generally be an “uninterested” party, meaning that they are not listed as a beneficiary and have no direct financial interest in the will. This is to mitigate any risk of there being a conflict of interest. However, Massachusetts does not follow this rule.
Under Section 2-505 of Massachusetts General Laws, “The signing of a will by an interested witness shall not invalidate the will or any provision of it…” This means that a witness can be an executor or beneficiary of the contents of the will.
However, the law goes on to say that “a devise to a witness or a spouse of such witness shall be void unless there are 2 other subscribing witnesses to the will who are not similarly benefited thereunder or the interested witness establishes that the bequest was not inserted, and the will was not signed, as a result of fraud or undue influence by the witness.”
A devise is a gift of real property or assets granted through a will. So, under Massachusetts law, yes, an executor can serve as a witness to the will. However, any assets left to them or their spouse will be considered void unless there are two additional witnesses who are not beneficiaries and do not have the same conflict of interest, or if the executor can prove that there was no fraud or undue influence involved.
The probate process is generally easier when the executor is not one of the witnesses to the will. Estate law is complex, so work with a knowledgeable lawyer for experienced legal counsel.
