The Original Will Matters in Massachusetts Probate
A Photocopy is Not Enough
The Legal Requirement of an Original Will in Massachusetts Probate
A common, and often costly, misunderstanding in Massachusetts probate is the belief that a photocopy of a will carries the same legal weight as the original.
It does not.
Under Massachusetts law, the original will is required in order to enforce the terms of the will. While probate proceedings can begin without it, a photocopy alone may be insufficient if the will’s validity or enforceability is challenged.
When an objection is raised, the absence of the original document can dramatically alter how an estate is administered and who ultimately receives assets.
Significance of Original Will vs. a Photocopy
Massachusetts probate law places significant weight on the physical original of a will because it is the strongest evidence of the decedent’s final intent.
When the original will cannot be produced, the law presumes that:
The decedent had possession or control of the will, and
The will was intentionally destroyed with the intent to revoke it
This presumption applies even when a photocopy exists and even when family members believe the copy accurately reflects the decedent’s wishes.
As a result, a photocopy is not automatically enforceable as a will under Massachusetts law.
Why a Photocopy Creates Legal Risk
A photocopy of a will may appear complete and valid, but its legal enforceability depends on whether it is challenged.
If no one objects, the court may allow the probate process to move forward using the photocopy. However, if an interested party objects, the circumstances can change dramatically.
An objection can come from:
A disinherited heir
A family member who would inherit more under intestacy
A creditor or other interested party
Any person with standing in the estate
Once an objection is raised, the lack of an original will becomes a central issue.
What Happens If the Photocopy Is Contested?
If the photocopy of a will is challenged and the original cannot be produced, the estate may be required to proceed as if the decedent died without a will, known as intestacy.
This outcome is not theoretical. It occurs with regularity in Massachusetts probate practice.
When an estate is administered as intestate:
The will’s terms are not enforced
Assets are distributed according to Massachusetts intestacy statutes
The decedent’s stated wishes may be overridden entirely
This can dramatically change who inherits from the estate.
How Intestacy Can Change Distributions
Massachusetts intestacy law follows a rigid statutory framework that does not account for personal relationships, blended families, or informal intentions.
Depending on family structure, intestacy may result in:
A surviving spouse receiving less than expected
Adult children receiving shares earlier than intended
Unmarried partners receiving nothing
Stepchildren being excluded entirely
Estranged relatives inheriting assets
For many families, this outcome directly contradicts the decedent’s estate planning goals.
Why Original Wills Often Go “Missing”
In some cases, the original will may not have been destroyed intentionally. Although the law treats it as destroyed, sometimes it is obvious that the will may have been lost or stolen, even if it cannot be proven.
Common scenarios include:
The will was stored at home and lost during a move or cleanout
The document was kept in a safe deposit box without clear access instructions
The will was retained by a former attorney who retired or closed a practice
Family members assumed a copy was legally sufficient
Unfortunately, probate law does not distinguish between intentional revocation and accidental loss without strong evidence (which often requires extended litigation).
Practical Implications for Executors and Families
Executors and family members should confirm the existence and location of the original will as early as possible.
Key questions include:
Does the original will still exist?
Where is it physically stored?
Who has access to it?
Is there documentation showing it was not revoked?
Addressing these issues early can prevent objections, delays, and unintended intestate administration.
Planning Lessons for Massachusetts Residents
This issue underscores several important principles in Massachusetts estate planning:
A valid estate plan requires more than proper drafting
Document custody is critical to enforceability
Copies provide information, not certainty
Executors must be able to produce original documents when challenged
Even a well-designed estate plan can fail if the original will cannot be located when enforcement becomes necessary.
Considerations for Professional Advisors
For financial advisors, accountants, and other professionals working with shared clients, the location of original estate planning documents is a frequently overlooked risk.
Important considerations include:
Whether original wills are accessible
Whether document storage is documented
Whether executors are informed in advance
Whether successor advisors know where documents are held
These practical details often determine whether an estate plan works as intended.
Conclusion
In Massachusetts probate, the distinction between an original will and a photocopy is huge.
When the original will cannot be produced and a photocopy is challenged, the estate may be administered as intestate )without a will), fundamentally changing the distribution of assets. The result can be increased litigation, higher costs, and outcomes that conflict with the decedent’s intent.
Understanding this issue is essential for anyone serving as an executor, advising clients, or planning an estate in Massachusetts. Working with an experienced Massachusetts probate lawyer can help identify and address these risks before they become irreversible.
