Updated June 01, 2022
The Massachusetts living trust form is a legal document wherein a Grantor signs all of their assets over to a trust, which, in the event of their death, will be transferred to a designated Beneficiary. In addition to signing the living trust document, the Grantor will have to transfer all of their individual assets, including bank accounts, income, stocks, and bonds, through separate paperwork (the documents needed to transfer motor vehicles and real estate are provided near the bottom of this page).
With a living trust, the Successor Trustee will gain control of the living trust should the Grantor fall ill or be incapacitated (unless the Grantor revokes this right), whereas, with a Last Will and Testament, control of assets will be given to a person appointed by court. One of the main reasons to opt for a living trust, is that it allows the beneficiaries to avoid going through probate in the event of the Grantor’s death (probate is the legal process through which a Will is “proved” in court and the assets distributed to the assigned beneficiaries). By avoiding this process, with a living trust, assets can be distributed in a period of weeks, instead of a period of month or years.
Laws – Chapter 203 (Trusts)
Terminate (203 § 42) – If a Grantor wishes to revoke their Revocable Living Trust, they will need to file Form MPC267 with their County Probate Court.
Will (Last Will and Testament) – Any assets and property not included in the living trust should be put into the Grantor’s Last Will and Testament.
Types
Irrevocable – An Irrevocable Living Trust, once signed, cannot be altered, amended, or revoked in any way (except to change Beneficiaries). The benefit of this option being asset protection and tax savings.
Revocable – In a Revocable Living Trust the Grantor retains the right to alter or revoke the living trust at anytime. The principal benefit of this option, is that the Beneficiaries will be able to avoid probate.
Individual Roles
There are four (4) major roles involved in a living trust:
Grantor (or “Settlor”) – The person who creates the trust (often also the Trustee and Beneficiary).
Trustee – The person in control of all assets and property placed in the trust.
Successor Trustee – This person is designated to become the Trustee if the active Trustee, falls ill, or for any other reason, is incapacitated and unable to fulfill their function as Trustee.
Beneficiaries – The designated recipients of all the living trust’s assets and property in the event of the Grantor’s death.
How to Make a Living Trust in Massachusetts
In accordance with 203E § 402 a trust may be created by an individual as long as they have the mental capacity to create it and that they are not the sole Trustee and Beneficiary of the document. A trust is not required to be registered with any State or local agency and should be held by the parties involved, mainly, the Trustee. Although not legally required, having the document notarized could help prove authenticity should it be challenged.
Following the creation of the trust all property is required to be placed in it. Therefore the following resources will likely be needed:
Motor Vehicles – Any motor vehicles being put into the living trust must have their vehicle title put in the name of the trust through the Registry of Motor Vehicles.
Real Estate Deeds – The transfer of ownership to the trust should be completed through a Massachusetts Deed which should be filed in the Registry of Deeds Office.
Websites – If there are any websites or domain names that will be placed in the trust the contact and ownership information must be reflected with the WHOIS or ICANN information.
After the death of the creator of the trust, the ‘Settlor’, the Trustee will be responsible for handling all the property ensuring that the Beneficiary takes ownership and possession.
Do I Need a Living Trust in Massachusetts
This depends on the needs of the creator if it is absolutely necessary to bypass the probate process. If so, the only other recourse is if a person’s estate is valued at less then $25,000 (per MGL c. 190B, Section 3-1201) the Heirs may file a Small Estate Affidavit after their death. Even then the assets and property will be spread between all the descendants and not to a single Heir like you can with the living trust. Therefore a living trust is not required for everyone but if a person is seeking to avoid probate a living trust is the only option.