Massachusetts Estate Planning & Probate Attorney
Wills, trusts, probate, and long-term care planning for families across Massachusetts and Rhode Island. Massachusetts taxes estates above $2 million, does not recognize living wills, and applies a five-year MassHealth look-back — three rules that make a generic online plan worse than no plan at all.
Estate planning is not about death. It is about who decides, who pays, and who is protected — starting the moment something goes wrong.
Most people think of an estate plan as a will. A will is one document out of nine, and it is the only one that does nothing at all until you die. The documents that matter most on a bad Tuesday — a stroke, a car accident, a dementia diagnosis — are the ones that work while you are still alive.
Botelho Law Group has practiced estate planning in Massachusetts since 2005. We work from Fall River with families throughout Bristol, Norfolk, Plymouth, and Barnstable Counties, and across the Commonwealth and Rhode Island. This page explains what a Massachusetts estate plan actually contains, what the Commonwealth does differently from every state you have read about online, and what happens if you do nothing.
Five Massachusetts Rules That Break Generic Estate Plans
National estate planning advice is written for states with different statutes. These five rules are specific to the Commonwealth, and each one changes what your plan should say.
1. The estate tax starts at $2 million — and does not pass to your spouse
The federal estate tax exemption is $15 million per person for 2026. Massachusetts taxes estates above $2 million under M.G.L. chapter 65C, at graduated rates from roughly 7.2% to 16%. Nearly every Massachusetts family that pays estate tax pays it only to the Commonwealth.
The exemption is per person and it is not portable. A married couple with $4 million who leaves everything outright to the survivor faces tax at the second death against a single $2 million exemption — the first spouse’s is simply lost. Credit shelter planning recovers it.
Your home, your retirement accounts, and your life insurance death benefit all count toward the threshold. A paid-off house in Bristol County plus a 401(k) plus a group life policy crosses $2 million more often than people expect.
2. Massachusetts does not recognize living wills
This surprises almost everyone. Massachusetts is one of a small handful of states with no living will statute. If you write a living will here, your physicians are not legally bound to follow it.
What is binding is the Health Care Proxy under M.G.L. chapter 201D. It names an agent, and once your doctor documents that you cannot make or communicate decisions, health care providers must follow that agent as if the decision were yours.
A living will still has real value in Massachusetts — as evidence of your wishes and as direction for your agent. It is a companion to the proxy, not a replacement for it. Anyone who sold you a living will as your end-of-life document sold you the wrong thing.
3. The MassHealth look-back runs five years
When you apply for MassHealth long-term care benefits, the agency reviews sixty months of your financial records. Transfers made for less than fair market value during that window create a penalty period of ineligibility.
This is why timing governs long-term care planning. An irrevocable trust funded today protects assets in five years. An irrevocable trust funded the month before a nursing home admission protects nothing and can make the situation worse.
One correction worth stating plainly: a revocable living trust does not protect assets from MassHealth. Because you keep control, the assets stay countable. Revocable trusts avoid probate. They do not shield assets.
4. The homestead is $125,000 automatic, $1,000,000 declared
Under M.G.L. chapter 188, every Massachusetts homeowner has an automatic $125,000 exemption on a principal residence with no filing at all. Record a Declaration of Homestead at your county Registry of Deeds and it rises to $1,000,000.
That declared figure doubled from $500,000 effective August 6, 2024. If you recorded before that date, you receive the increase automatically with no re-filing needed.
Know the limits. Homestead does not defeat a mortgage, a tax lien, a lien recorded before your declaration, a court-ordered support obligation, or a judgment based on fraud — and it does not stop MassHealth estate recovery. For about $35, it is still the highest-value filing available to a Massachusetts homeowner.
5. Probate here runs under the MUPC, and creditors get a full year
Massachusetts probate operates under the Massachusetts Uniform Probate Code (M.G.L. c. 190B), administered through the Probate and Family Court. Creditors have one year from the date of death to bring a claim against the estate. A personal representative who distributes assets before that year runs can be held personally liable if a valid claim surfaces afterward. This is the single most common way well-meaning family members get themselves into trouble.
The Nine Documents in a Massachusetts Estate Plan
Not every family needs all nine. Almost every family needs more than the one they came in asking for.
1. Last Will and Testament
Your will appoints a personal representative, directs who receives what, and — for parents — nominates a guardian for minor children. That last function is often the real reason young families come in, and it is not something a trust handles.
Without a valid will, Massachusetts intestacy law decides. Those rules are generic by design and routinely produce outcomes no one would have chosen: a surviving spouse sharing with the deceased’s parents, stepchildren receiving nothing, a fractured family business.
A will needs revisiting after marriage, divorce, a birth or adoption, the death of a named beneficiary or personal representative, and any substantial change in assets. Read more about wills and trusts in Massachusetts.
2. Revocable Living Trust
A revocable trust holds your assets during life and passes them at death without probate. You keep full control and can amend or revoke it at any time. The trade-off is that the flexibility you keep is exactly why it offers no creditor or MassHealth protection.
The most common failure is not drafting — it is funding. A trust that was signed but never had assets transferred into it does nothing, and your family discovers this in probate court holding the binder. See our guide to the Massachusetts revocable living trust and our Fall River living trust overview.
3. Irrevocable Trust
Assets placed in a properly drafted irrevocable trust leave your estate. That is what produces the protection: removal from your taxable estate for Massachusetts estate tax purposes, insulation from future creditors, and — after the five-year look-back has run — protection from MassHealth.
The price is control. You cannot casually undo it. That is precisely why it works, and it is the conversation to have carefully before signing. More on Massachusetts irrevocable trusts.
4. Durable Power of Attorney
Your financial agent. “Durable” means it survives your incapacity, which is the entire point — a power of attorney that stops working when you become incapacitated is worthless exactly when you need it.
Massachusetts banks are strict about these. Generic internet forms get rejected, and forms missing specific gifting and real estate powers leave your agent unable to act on the transactions that matter most. Without a valid durable power of attorney, your family’s only option is a conservatorship petition in Probate Court. See our detailed Massachusetts power of attorney guide.
5. Health Care Proxy
The most important document in Massachusetts advance planning, and the one that is legally binding here. Under M.G.L. chapter 201D, you name an agent who makes medical decisions once your attending physician documents that you cannot.
It must be signed before two adult witnesses, neither of whom is your agent or alternate. Without one, no one holds automatic legal authority — not even a spouse in every circumstance, and certainly not an unmarried partner. Your family’s alternative is a guardianship petition, filed during a medical crisis.
6. Personal Directive (the Massachusetts “living will”)
Because Massachusetts has no living will statute, we draft this as a companion to your proxy rather than a standalone directive. It records your values and treatment preferences — resuscitation, ventilation, artificial nutrition, hospice and palliative care, organ donation.
It is not binding on physicians. It is persuasive evidence of your intent, and it gives your agent something to stand on during the hardest decision of their life. For anyone with a serious illness, a MOLST form — a medical order signed by your physician — is the instrument that actually directs treatment.
7. HIPAA Authorization
A short document naming who may receive your medical information. Without it, hospital staff can legally refuse to tell your own children how you are doing. It costs nothing to include and solves a problem families hit within hours of an emergency.
8. Declaration of Homestead
Recorded at your county Registry of Deeds, raising your home equity protection from the automatic $125,000 to $1,000,000. Roughly a $35 filing.
One trap worth knowing: transferring your home into a trust can affect your homestead status, so the declaration and the deed need to be coordinated rather than handled separately. This overlaps directly with Massachusetts asset protection planning.
9. Life Estate Deed — when it fits
A life estate deed conveys your home to your chosen remaindermen while you keep the legal right to live there, collect income from it, and use it for life. At your death the property passes to them outside probate.
It is simpler and cheaper than a trust and it can support MassHealth planning, but it is rigid. Selling or refinancing afterward generally requires the remaindermen’s cooperation, and if one of them divorces, is sued, or dies before you, the situation becomes complicated. Massachusetts does not permit Lady Bird deeds, which is why a life estate with a retained power of appointment is sometimes used instead. This is a document to choose deliberately, not by default.
Which Massachusetts Trust Does What
| Trust Type | Avoids Probate | Protects From Creditors / MassHealth | Best For |
|---|---|---|---|
| Revocable Living Trust | Yes | No — you keep control, assets stay countable | Probate avoidance, privacy, real estate in more than one state |
| Irrevocable Trust | Yes | Yes, once the 5-year look-back has run | Long-term care planning, estate tax reduction, creditor protection |
| Credit Shelter / Bypass Trust | Yes | Estate tax only | Married couples above $2M — captures the first spouse’s exemption |
| Irrevocable Life Insurance Trust | Yes | Removes death benefit from the taxable estate | Anyone whose life insurance pushes them over $2M |
| Special Needs Trust | Yes | Preserves SSI and MassHealth eligibility | Providing for a loved one with a disability without disqualifying them |
| Realty / Nominee Trust | Yes | No — privacy only, not protection | Keeping ownership off the public record; layering with an LLC |
| Charitable Remainder Trust | Yes | Estate and income tax benefits | Appreciated assets plus charitable intent plus an income need |
A fuller comparison is on our Massachusetts trusts page.
Probate in Massachusetts
Probate is the court-supervised process of validating a will, appointing a personal representative, paying debts and taxes, and distributing what remains. It runs through the Probate and Family Court under the MUPC.
When there is a will
A will does not avoid probate — it directs it. The court confirms the will was validly executed, appoints the personal representative named in it, and supervises administration from there.
The personal representative inventories assets, notifies heirs and creditors, settles debts and taxes, resolves any disputes, and distributes the remainder. Massachusetts offers informal administration before a magistrate for straightforward estates and formal administration before a judge where there is conflict or complication.
More detail in our Bristol County probate guide.
When there is no will (intestate)
Dying without a will is called dying intestate. The court appoints an administrator — also called a personal representative — usually a close family member, following the order of preference set by Massachusetts law.
Distribution then follows the intestacy statute rather than anyone’s wishes. Spouses, children, and parents are prioritized in a fixed order that takes no account of estrangement, blended families, informal promises, or who actually provided care. Where multiple family members want to serve, the appointment itself becomes contested before distribution is even reached.
The one-year creditor window
Creditors have one year from the date of death to file claims against a Massachusetts estate. Distributing before that period closes exposes the personal representative to personal liability for valid claims that arrive later. Families administering an estate themselves frequently distribute early because it feels like the kind thing to do. It is the single most expensive mistake in Massachusetts estate administration.
Small estates and voluntary administration
Not every estate requires full probate. Massachusetts permits voluntary administration where the personal property is $25,000 or less and there is no real estate. It is a substantially simpler filing, and it is worth confirming whether an estate qualifies before opening a full proceeding.
MassHealth and Long-Term Care Planning
For most Massachusetts families the real threat to an inheritance is not the estate tax. It is the cost of long-term care, which routinely runs past $15,000 a month in this state and can consume a lifetime of savings in a few years.
The five-year look-back
MassHealth reviews sixty months of financial records on a long-term care application. Transfers for less than fair market value in that window create a penalty period. Planning works when it is early; it fails when it is reactive.
Estate recovery
Federal law requires MassHealth to seek reimbursement from the estates of members who were 55 or older and received certain long-term care benefits. As of Chapter 197 of the Acts of 2024, recovery is limited to probate estate assets.
What actually protects the home
A properly drafted and timely funded irrevocable trust. Not a revocable trust, not a homestead declaration, and not a deed to the kids — each of which creates its own problems, from capital gains exposure to your children’s creditors reaching the house.
Why “just put the house in the kids’ names” goes wrong
It is the most common self-help move in Massachusetts and it backfires in four ways at once. It is a disqualifying transfer inside the look-back. It strips the stepped-up basis your children would have received at your death, creating a capital gains bill that can dwarf any probate savings. It exposes the home to your children’s divorces, lawsuits, and creditors. And it leaves you without legal right to remain in your own house. There are better tools. Use them.
What Massachusetts Families Need at Each Stage
| Your Situation | The Priority | Core Documents |
|---|---|---|
| Young parents | Guardian for the children, and someone who can act if you cannot | Will with guardian nomination, durable power of attorney, health care proxy, HIPAA, term life insurance |
| Homeowners under $2M | Avoiding probate, protecting home equity | Revocable trust, pour-over will, homestead declaration, powers of attorney and proxy |
| Estate above $2M | Capturing both spouses’ exemptions | Credit shelter trust, ILIT, lifetime gifting, full document set |
| Age 60+, healthy | Starting the five-year MassHealth clock | Irrevocable trust, updated proxy and power of attorney, personal directive |
| Facing a care crisis now | Crisis planning within the rules | MassHealth application strategy, permitted transfers, spousal protections |
| Business owners | Succession without forcing a sale | Buy-sell agreement, entity structuring, trust coordination, asset protection |
| Family with a disability | Providing without disqualifying | Special needs trust, carefully coordinated beneficiary designations |
| Recently widowed or divorced | Undoing a plan built for a life you no longer have | Full review — beneficiary designations especially |
How the Process Works
Step 1 — Consultation
A free 30-minute conversation about your family, your assets, and what you are actually worried about. Bring any existing documents. We will tell you plainly whether you need anything at all — sometimes the answer is that your current plan is fine.
Step 2 — Design and flat fee
We recommend a specific set of documents and explain the reasoning behind each, including what each one costs you in control or flexibility. You get a flat fee before any work begins.
Step 3 — Drafting and signing
We draft, you review, we revise, and we execute with the witnesses and notarization Massachusetts requires. Execution formalities are where DIY plans most often fail outright.
Step 4 — Funding, which is not optional
Deeds recorded, accounts retitled, beneficiary designations updated, homestead filed. An unfunded trust is an expensive binder. We do not consider a plan finished until the assets are actually inside it.
Massachusetts Estate Planning FAQ
Is a living will legally binding in Massachusetts?
No. Massachusetts is one of a small handful of states with no living will statute, so physicians are not legally required to follow one. The Health Care Proxy under M.G.L. chapter 201D is the only legally enforceable document for medical decision-making here — once your doctor documents that you cannot decide for yourself, providers must follow your named agent. A living will still matters as written evidence of your wishes and as guidance for your agent, which is why we draft it as a companion to the proxy rather than a substitute.
What is the Massachusetts estate tax threshold in 2026?
$2 million per person, with graduated rates running from roughly 7.2% to 16% under M.G.L. chapter 65C. The federal exemption is $15 million, so most Massachusetts families who owe estate tax owe it only to the Commonwealth. The state exemption is not portable between spouses, which means a couple who leaves everything outright to each other can waste the first $2 million exemption entirely. Your home, retirement accounts, and life insurance death benefit all count toward the threshold.
Does a revocable living trust protect my assets from MassHealth?
No. Because you keep control of a revocable trust and can amend or revoke it at any time, MassHealth treats those assets as countable. Revocable trusts are excellent for avoiding probate and keeping your affairs private, but they provide no protection from long-term care costs or creditors. Protection requires an irrevocable trust, funded and seasoned before the five-year look-back period applies.
How much home equity does the Massachusetts homestead protect?
$125,000 automatically with no filing required, rising to $1,000,000 if you record a Declaration of Homestead at your county Registry of Deeds. The declared amount doubled from $500,000 effective August 6, 2024, and declarations recorded before that date receive the increase without re-filing. Homestead does not override mortgages, tax liens, liens recorded before your declaration, court-ordered support, or judgments based on fraud, and it does not prevent MassHealth estate recovery.
Does having a will avoid probate in Massachusetts?
No. This is the most common misunderstanding we encounter. A will directs probate rather than avoiding it — it tells the Probate and Family Court who should serve as personal representative and who receives what. Avoiding probate requires assets to pass outside the probate estate, through a funded trust, joint ownership, beneficiary designations, or a life estate deed.
How long does probate take in Massachusetts?
Most straightforward estates run nine to eighteen months. The floor is set by the creditor period: creditors have one full year from the date of death to bring claims, and a personal representative who distributes before that year closes can be held personally liable for valid claims arriving afterward. Contested wills, hard-to-value assets, or real estate with title problems extend the timeline considerably.
Should I just put my house in my children’s names?
Almost never. It is a disqualifying transfer inside the MassHealth five-year look-back. It strips the stepped-up basis your children would otherwise receive at your death, often creating a capital gains bill far larger than the probate cost you were avoiding. It exposes your home to your children’s divorces, lawsuits, and creditors. And it leaves you with no legal right to remain in your own house. An irrevocable trust or a properly structured life estate deed accomplishes the goal without those consequences.
What happens if I die without a will in Massachusetts?
Massachusetts intestacy law decides. The Probate and Family Court appoints an administrator following a statutory order of preference, and your assets are distributed under a fixed formula prioritizing spouses, children, and parents. That formula makes no allowance for estrangement, blended families, stepchildren you raised, informal promises, or which relative actually provided your care. Where several family members want to serve as administrator, the appointment itself can be litigated before anyone reaches the question of distribution.
When should I start long-term care planning?
Before you need it, which in practice means at least five years before. The MassHealth look-back reviews sixty months of transfers, so assets moved into an irrevocable trust today are protected in five years. Planning done after a diagnosis or an admission is crisis planning — still worth doing, because permitted transfers and spousal protections exist, but a narrower set of options than early planning offers.
How much does estate planning cost in Massachusetts?
We quote a flat fee after the initial consultation, so you know the full cost before committing. Pricing depends on whether your plan is document-based or trust-based and on complexity like business interests, blended families, or out-of-state property. The consultation is free and there is no obligation — if your existing plan is sound, we will tell you that.
Do you serve clients outside Fall River?
Yes. We are based in Fall River and serve families throughout Massachusetts — Bristol, Norfolk, Plymouth, and Barnstable Counties, plus Taunton, New Bedford, Brockton, Boston, Worcester, and Cape Cod — along with clients in Rhode Island. Most planning is handled by phone and video, with in-person meetings for signings.
Talk to a Massachusetts Estate Planning Attorney
Thirty minutes will tell you whether your current plan works, what it is missing, and what it would cost to fix. No obligation, and a straight answer about whether you need us at all.
Call 508-500-1551 Request a Consultation
Botelho Law Group · 901 Eastern Ave., Unit 2, Fall River, MA 02723 · Monday–Friday 8am–5pm