You did the responsible thing. You sat down with an attorney, signed your will, and filed it away somewhere safe. For a moment, it felt like you had your affairs in order. But then someone at dinner mentioned their revocable living trust, and now you’re wondering if your will is enough, or if you’ve left a gap in your plan that could cost your family later.
It’s a fair question, and you’re not alone in asking it. Many South Shore families who come to us for estate planning have a will already but aren’t sure whether they also need a trust. The honest answer is: it depends, but for many Massachusetts residents, having both can make a meaningful difference for the people they love.
What Does a Will Actually Do in Massachusetts?
A will, formally called a Last Will and Testament, is a written legal document that directs how your assets should be distributed after you die. Under Massachusetts General Laws Chapter 190B, Sections 2-501 et seq., a valid will must be in writing, signed by you (the testator), and witnessed by two disinterested parties. Massachusetts generally does not recognize unwitnessed handwritten (holographic) wills or oral wills, though handwritten wills may be valid if they meet strict statutory requirements.
Your will can name a personal representative (what most people still call an executor) to manage your estate, designate guardians for minor children, and specify who inherits your property. It is a foundational and truly important document in any solid estate plan.
There is one significant limitation. A will only takes effect after you die, and before anything in it happens, it usually must go through probate, the court-supervised process governed by M.G.L. c. 190B, Article III. Probate in Massachusetts can take months and sometimes longer for more complex estates. Once your will is filed with the court, it becomes a public record, which means anyone, including a curious neighbor, a distant relative, or an unknown creditor, can request a copy.
Will vs. Trust in Massachusetts: What Is the Difference?
When people talk about will vs. trust in Massachusetts, the core distinction comes down to timing and process.
A trust is a legal arrangement in which you (the grantor) transfer assets to a trustee to hold and manage for the benefit of named beneficiaries. Unlike a will, a properly funded revocable living trust becomes effective as soon as it is created and funded with your assets. It can manage your property during your lifetime and continues to do so after your death, without going through probate.
Trusts in Massachusetts are primarily governed by common law principles codified in M.G.L. Chapter 203. Certain trust-related provisions, such as testamentary trusts, are addressed under M.G.L. c. 190B, Article VII (the Uniform Trust Code provisions). A revocable trust can be modified or revoked at any time while you are alive and have capacity. An irrevocable trust, by contrast, generally cannot be changed once signed and is usually used for purposes such as tax planning or asset protection.
Here is a side-by-side comparison of how the two documents work:
- Probate. Wills must go through probate court, while assets held in a properly funded trust pass directly to beneficiaries without court involvement.
- Privacy. Wills become public record once filed with the court. Trusts generally remain private.
- Timing. A will only takes effect after death, whereas a trust can operate during your lifetime and continue after death.
- Incapacity planning. A will does not address incapacity, while a trust allows a successor trustee to manage your assets immediately if you become unable to do so.
- Guardianship. Only a will can designate a guardian for minor children. A trust cannot serve this function.
Is a Trust Necessary If I Have a Will? When a Trust Adds Real Value
If you have a will, you have a starting point. But is a trust necessary if you already have a will? For many Massachusetts families, the answer leans toward yes, particularly in the following situations.
You own real estate on the South Shore. Massachusetts does not allow transfer-on-death deeds for real property. That means if your home, rental property, or vacation cottage in Marshfield or Plymouth is titled solely in your name, it will likely need to go through probate when you die. Placing that property into a properly funded revocable living trust before your death keeps it out of probate and allows your successor trustee to transfer title to your heirs without court involvement.
Your estate may be subject to Massachusetts estate tax. Massachusetts imposes an estate tax on estates exceeding $2 million, with rates ranging from 0.8% to 16 percent under M.G.L. c. 65C. The state provides a credit of $99,600 for estates of decedents dying on or after January 1, 2023, effectively eliminating the tax for estates at or below the $2 million threshold. Married couples can use a credit shelter trust, sometimes called an A-B trust, to ensure both spouses’ exemptions are used. A simple will alone cannot achieve this level of planning.
You want to protect a beneficiary. If you have a child or grandchild who struggles with financial management, has a substance use disorder, or receives government benefits due to a disability, a trust lets you control how and when they receive an inheritance. A will cannot do this; it simply distributes assets. A supplemental needs trust, for example, can preserve a disabled beneficiary’s eligibility for programs like MassHealth without disqualifying them.
You are concerned about MassHealth estate recovery. Massachusetts law previously allowed MassHealth to recover costs from a decedent’s estate, including some assets that passed outside of probate. Following Chapter 197 of the Acts of 2024, effective December 2024 and retroactive to deaths after August 1, 2024, MassHealth estate recovery is generally limited to probate estate assets. Assets held in a properly funded revocable living trust pass outside the probate estate and are usually protected under this updated law. This change has increased the value of trusts for families planning for long-term care costs.
Benefits of Having Both a Will and a Trust
Many of our clients in Marshfield and throughout Plymouth County end up with both documents, and for good reason. The benefits of having a will and a trust work together rather than in opposition.
A trust can handle the bulk of your estate, including your home, investment accounts, and other significant assets that you transfer, or “fund,” into it. Your will then serves as a backstop for any assets that did not make it into the trust, whether because they were acquired late in life or simply forgotten. This type of will is called a “pour-over will” because it directs any remaining assets into your trust at death, where they are then distributed according to the trust’s terms. While these assets still go through probate, the trust ultimately controls their distribution.
A will also does something a trust cannot. It is the only document that allows you to name a guardian for your minor children. If you have children under 18, a will is essential. Massachusetts courts rely on the will to determine who should care for your children if both parents are unavailable.
Having both a will and a trust means your estate plan covers assets inside and outside the trust, provides for guardianship of your children, and helps ensure that your wishes are carried out privately and efficiently.
What Happens If You Only Have a Will?
If you only have a will and no trust, your estate will likely need to go through probate after you die. Under the Massachusetts Uniform Probate Code (M.G.L. c. 190B, Part III), the state does offer a simplified “voluntary administration” process for small estates. This process applies only if the estate consists of $25,000 or less in personal property (excluding one motor vehicle) and contains no real estate. Most South Shore homeowners exceed this limit with their property alone.
Standard probate, even when conducted informally, takes time and involves court filings, creditor notification periods, and personal representative fees. During this waiting period, your family may not have access to assets they need. A properly funded revocable living trust avoids this process entirely for any assets that are titled in the trust’s name, allowing for immediate management and transfer according to your instructions.
Key Takeaways
- A will is a foundational estate planning document, but it generally requires probate and becomes a public record once filed with the court.
- A properly funded revocable living trust avoids probate, preserves privacy, and allows a successor trustee to manage your assets if you become incapacitated.
- Massachusetts does not allow transfer-on-death deeds for real property, making trusts especially practical for homeowners who want to avoid probate.
- The Massachusetts estate tax applies to estates over $2 million under M.G.L. c. 65C. Trust planning, including credit shelter (A-B) trusts, can help married couples maximize available exemptions.
- Following Chapter 197 of the Acts of 2024, MassHealth estate recovery is generally limited to probate estate assets. Assets in a properly funded revocable trust are typically protected under this updated law.
- Only a will can designate a guardian for minor children; a trust cannot serve this function.
- Most South Shore families benefit from having both a will and a trust, ensuring that all assets are covered, children are provided for, and the estate plan is administered efficiently and privately.
Frequently Asked Questions
Do I need a trust if I have a will in Massachusetts?
Not always, but often yes. A trust can provide benefits that a will alone cannot. If you own real estate, have a taxable estate, want to protect a beneficiary with special needs, or want to keep your affairs private and avoid probate, a trust can add significant value. For many Massachusetts residents, having both a will and a trust creates a stronger, more complete estate plan.
Can a trust replace a will entirely?
No. A trust cannot name a guardian for minor children, and it only controls assets that have been properly transferred into it. A pour-over will acts as a safety net for any assets that were not placed in the trust during your lifetime.
Is a trust necessary if I have a small estate?
It depends on what you own. Even a modest home in Massachusetts will go through probate if it is not titled in a trust or held jointly with survivorship rights. If avoiding probate and maintaining privacy are important, a trust may still be worthwhile, even for smaller estates.
How does a trust help with Massachusetts estate taxes?
For married couples whose combined estates exceed $2 million, a credit shelter trust (sometimes called an A-B trust) can help ensure both spouses’ Massachusetts estate tax exemptions are fully used. Without this planning, the surviving spouse’s estate could owe significant tax that might have been reduced or avoided.
What is a pour-over will?
A pour-over will is a will that directs any assets outside your trust at the time of death to be transferred into your trust. It ensures that all assets ultimately follow the same distribution plan established in your trust.
Can I set up a trust without an attorney in Massachusetts?
Technically, yes, but it is strongly discouraged. A poorly drafted or unfunded trust may fail to avoid probate and could create legal or financial problems for your beneficiaries. Working with a trust attorney in Marshfield, MA ensures your trust is properly drafted, funded, and coordinated with your other estate planning documents.
Contact Cote Law Group, PLLC
If you have been asking yourself whether you need a trust alongside your will, the fact that you are asking is reason enough to have a real conversation with an attorney. Estate planning is not a one-size-fits-all process, and the right plan for your family depends on your assets, your goals, and the people you want to protect.
At Cote Law Group, PLLC, we work with families across Marshfield, Plymouth, Duxbury, Scituate, and the greater South Shore to build estate plans that actually work when they are needed most. Whether you are starting from scratch or revisiting a plan you have had for years, we are here to help.
We offer thoughtful, personalized guidance on wills, trusts, and all aspects of estate planning in South Shore, MA. If you are ready to take the next step and protect what matters most, we encourage you to reach out today.