Maine Wills

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Making, Revoking or Changing a Maine Will

A Maine Will (or Maine Last Will and Testament) is a legal document which enables you to plan your affairs after death. It’s an estate planning tool, a means of ensuring what happens to your property and any minor children.

What are the requirements of making a Maine Last Will & Testament?

  • The requirements are contained in Title 18-A Probate Code.

 

  • The person making a Maine Will (testator) must be at least 18 years old and must be of sound mind §2-501

 

 

  • In writing and signed by the testator. §2-502

 

 

  • Witnessed by two persons §2-502

 

Does Maine recognize holographic wills?

Yes. If the testator’s Will does not comply with the execution requirements above, then the Will may be valid as a holographic Will. Witnessing is not required if the signature and material provisions are in the testator’s handwriting. §2-503 Note: it is never recommended to rely on these types of Wills. Always try to comply with the stricter requirements to ensure your Maine Will has the best chance of being probated.

Can a spouse witness a Maine Will?

Yes. A Maine Last Will and Testament can be witnessed by any person who is generally competent to be a witness. The Will does not become invalid if it’s signed by an interested person including a spouse. §2-505.

How can I revoke a Maine Last Will?

  • Make a new Will which revokes the prior expressly or by inconsistency; or

 

  • Burn, tear, cancel, obliterate or destroy the Will with the intention of revoking it. §2-507.

 

Attorneys generally advise to undertake both; to expressly revoke your former Will in a new Will and to physical destroy the old Will.

Changing a Last Will and Testament

A Codicil may be used to change parts of a Maine Last Will. However, it’s more orderly and securer to write a new Will and revoke the one you wish to be changed.

What happens to my Maine Will if I become divorced?

A divorce does not revoke the entire Will. Only those parts which benefit the former spouse or which appoint him/her as executor, trustee or guardian are revoked. The document will be interpreted as though your spouse died before you. If you wish for any gifts or appointments to stay in place, you can expressly provide for this to happen in your Maine Will and Testament.

Where are Last Wills deposited in Maine?

The probate courts can no longer accept Wills for safekeeping. §2-901. You should store your Maine Last Will & Testament in a safe place or with a trusted person. If you store the original with another person, after your death, that person is required to deliver your Maine Will to an appropriate person who can apply for probate or to the court with reasonable promptness. §2-902

How to Probate a Maine Will

Does a Maine Will need to be probated?

If the entire estate is worth more than $20,000 then you need at least an informal probate order to prove that the Will is valid. §3-102. This is made easier with self-prove affidavits signed by the witnesses.

What if the estate is less than $20,000?

Estates worth $20,000 or less can be distributed using the collection of personal property by affidavit procedure. Successors (person’s entitled to the decedent’s property under the Maine Will or intestate heirs) can use the affidavit to collect the deceased’s property after 30 days following the deceased’s death. §3-1201

Small Estates

Small estates are defined as those being less than: the homestead allowance, exempt property, family allowance, administration costs and expenses, reasonable funeral expenses and reasonable medical and hospital expenses of the deceased’s last illness (less any liens and encumbrances). The personal representative may distribute the small estate without giving notice to creditors and file a closing statement of the estate. §3-1203

Informal Probate of a Maine Last Will and Testament

If there is an original Maine Will in existence and no one has objected, an interested person may file an application for informal probate of the Will. The application must be filed within 3 years of the decedent’s death, however some exceptions apply. If the application is in order and the Will is in compliance with execution requirements, then the register can issue a written statement of informal probate. §3-302

Who is an interested person?

An interested person includes heirs, devisees, children, spouses, domestic partners, creditors, beneficiaries and any others having a property right or claim against the estate. §1-201

Formal Testacy Proceedings

If there is a question over whether the decedent left a valid Last Will, then this must be decided in Formal Testacy Proceedings. This includes cases where the Maine Will has been lost, destroyed or is otherwise unavailable. An interested person may commence litigation by filing a petition with the probate court. A hearing date will be fixed and notice must be given to various persons including the spouse, children, heirs, devisees, executors named in the last Will and Testament and any personal representative who has been appointed. §3-403

Maine Estate Taxes

For all decedents with property taxable to Maine, the state imposes a tax on estates valued more than $1,000,000 (gross estate plus prior taxable gifts). The Maine estate tax is applied even if there is no federal estate tax. When someone owning Maine real or tangible personal property dies, an automatic lien is placed on that property. For estates with a value equal to or below the taxable threshold and that have real or tangible personal property in Maine, a release of that lien may be obtained for that property by filing Form 706EZ-ME with Maine Revenue Services. Estates above the threshold will need to file a Maine Estate Tax Return (Form 706ME). Federal Estate Taxes will resume in 2011.

Contesting a Maine Will and Testament

Any party to a formal proceeding who opposes the probate of a Maine Will for any reason may state the objections in his/her pleadings. §1-201 Grounds for contesting a Will include lack of testamentary intent or capacity, undue influence, fraud, duress, mistake or revocation. §3-407 If the Maine Last Will is held to be invalid then it will become null and void. Unless there are other testamentary instruments or Wills, the decedent will be deemed to have died intestate and his/her assets will be distributed in accordance with the intestate succession laws.

Excluding a Spouse or Child from Maine Wills

How to prevent your spouse or child from inheriting your estate? If you simply omit them from your Maine Will, the legislation provides statutory entitlements for these family members.

Excluding a Spouse, Wife or Husband

If you are married, live in Maine and try to exclude your spouse from your Maine Last Will and Testament, your spouse is still entitled each to the following:

  • Elective share – one third of the augmented estate. §2-201

 

  • Homestead allowance – $10,000. §2-401.

 

 

  • Exempt property – up to the value of $7,000. §2-402. This can be made up from your residence, motor vehicle, clothing, furniture, appliances, jewelry, tools of trade and other personal property such as furnaces stoves, fuel, food, produce, animals, farm equipment and life insurance contracts (Title 14, chapter 507, subchapter II, Article 7, §4422). If there is insufficient exempt property, then the right applies to other assets of your estate.

 

 

  • Family allowance – a reasonable allowance of money awarded by the court out of your estate for the maintenance of your spouse and minor and dependent children. If the estate is inadequate to discharge allowed claims then the allowance can only be allowed for a period of one year. Otherwise, the allowance can continue for longer, as deemed necessary by the court. §2-403

 

Excluding a Child

The state of Maine allows testators to omit a child from the last Will and Testament if the omission is clearly intentional. Children born after the signing of your Maine Willare entitled receive a share of your estate unless:

    1. The will stipulates that the omission is intentional;

 

  • At the time of signing the Will, you had one or more children and devised substantially all your estate to the omitted child’s parent;

 

 

  • You provided for the omitted child outside the Will with an intention that the transfer be instead of a testamentary provision. This must be shown by a statement or implied by the amount of the transfer. §2-302

 

If none of these exceptions apply, then the child will receive a share as though you had died intestate (without a last Will and Testament). §2-302 If you exclude a child merely on the basis that you believe that child to be dead, then that child is entitled to a share of your estate. §2-302 Also, if a child is conceived before your death, they will benefit as though they had been born in your lifetime. §2-108 Due to the complexity of the statutes, never try to exclude a child or spouse from a Maine Will and Testament without guidance from a qualified attorney. A lawyer can provide you with the correct clause and advise any other steps you need to take.

What happens if I die Without a Maine Will?

If a Maine resident passes away without leaving a valid Maine Will (intestate), then his/her property will pass in accordance with the Maine Intestate Succession laws. Here is a summary of who receives a share of your assets and to what extent:

Spouse or Surviving registered domestic partner: §2-102

The share which your spouse or registered domestic partner will receive depends on your kindred. If you have:

  • No surviving issue* or parents – Entire estate;

 

  • No surviving issue but a parent or parents – First $50,000 plus ½ of the balance intestate estate;

 

 

  • Issue, all of whom are also issue of the surviving spouse/registered domestic partner – First $50,000 plus ½ of the balance intestate estate;

 

 

  • Issue, one or more of whom are not issue of the surviving spouse/registered domestic partner – ½ of the intestate estate.

 

* Issue means: all lineal descendants of all generations with the relationship of parent and child at each generation.

Other Heirs:

Any share which does not pass to the surviving spouse or registered domestic partner (if there is none surviving, then the entire intestate estate), will go to:

  • Your issue per capita at each generation (which means each person at a particular generation level shares equally with all other persons in the same generational level).

 

  • If you have no surviving children, to your parents equally or the survivor;

 

 

  • If there are no surviving children or parents, to the issue of your parents per capita at each generation.

 

 

  • If there are no surviving grandparents, great-grandparents, issue of grandparents or great-grandparents or any other relatives as defined in §2-103 then the intestate estate passes to the State of Maine. §2-105

 

Examples where persons die Without a Will:

Intestate distribution when wife passes away leaving a husband and two children: Ange passed away without a will. She had two children to her husband Kent. Her estate is worth $300,000. Who gets what? Kent: $175,000, Ange & Kent’s children: $62,500 each. Husband died without Will, leaving wife, their children. Husband also has child from former partner: Fred died leaving an estate of $300,000. He had no will. He had two children to his wife Britney and also a child from a former partner. Who gets what? Britney: $150,000, Fred & Britney’s 2 children: $50,000 each, Fred’s child from former partner: $50,000. Husband died without Will, leaving wife, their children. Wife also has child from former partner: Seth died leaving an estate of $300,000. He had no will. He had two children to his wife Anne. Anne has a child from a former partner. Who gets what? Anne: $150,000, Seth & Anne’s 2 children: $75,000 each, Anne’s child from former partner: Nil. Example of per capita at each generation distribution to child & grandchildren: Wade died without a will. His estate is worth $300,000. He had 3 children with his wife, Alyson. Two of their children have already died, leaving a granddaughter from one child and two grandsons from the other deceased child. Who gets what? Alyson: $175,000, Wade & Alyson’s surviving child: $75,000 (1/3 of the balance), Wade & Alyson’s 3 grandchildren – $50,000 each (2/3 of the balance, divided equally).

Maine Will Forms

Note: Before making a Maine Last Will and Testament, we recommend you read a comprehensive guide on preparing, signing and witnessing a last Will including:

  • Distributing your property including specific bequests and the residue
  • Appointing an Executor
  • Creating a Trust
  • Appointing a Trustee to look after trust property of minor children or other beneficiaries
  • Designating a guardian for your minor children

Sample Last Will and Testament forms available as free downloads (printable PDF documents).

Maine Will Form: Married with adult children
Maine Will Form: Married with adult and/or minor children, includes a trust for minor children
Maine Will Form: Married with no children

Maine Will Form: Single with adult children
Maine Will Form: Single with adult and/or minor children, includes a trust for minor children
Maine Will Form: Single with no children

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