Creating a last will and testament is an important step in planning for the distribution of your real and personal property upon your death. Maine wills allow the testator (the person making the will) to provide for a spouse, children, other family members, friends, and even pets after his death.
Not to be confused with a last will and testament, a Maine living will provides instructions should you become incapacitated and incapable of making decisions regarding your medical care. Accordingly, such a document would take effect, if necessary, within your lifetime while a last will and testament does not.
Do You Need a Last Will and Testament?
Although a last will and testament is not legally required, without a will, state laws (called laws of intestacy) will determine the distribution of the deceased’s assets. The outcome may not coincide with the decedent's (the person who passed away) wishes, however, which means it is generally advisable to create a last will and testament.
A last will and testament can serve many purposes, but one of the biggest benefits is that it gives the testator the opportunity to choose the executor of the estate, the person who will be responsible for carrying out the wishes contained in the will. Making provisions for this decision ahead of time can give a testator great peace of mind knowing his estate will be in the right hands; without a will, a court will choose the executor of an estate.
A testator can use a will for various purposes, but the most important is to express how assets such as real estate, vehicles, business holdings, and cash, should be divided upon the testator’s death. A testator can also name a guardian for minor children through a last will and testament.
Moreover, in addition to testamentary trusts (i.e., trusts created through a last will and testament) that provide a benefit for people, Maine law specifically allows for the creation of a trust for the care of animals alive during the settlor’s lifetime (“pet trust”); such a trust must terminate when there is no living animal covered by it. A Maine will gives you the option of caring for your animals after your death in this manner.
Before the terms of a will can be accepted, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person. Once the will is proven valid in probate court, the executor can then pay off any debts and taxes owed by the estate and then distribute the testator’s property according to the will. Maine does have a simplified probate procedure for those with small estates, defined as follows:
[The] value of the entire estate, less liens and encumbrances, does not exceed homestead allowance, exempt property, family allowance, costs and expenses of administration, reasonable funeral expenses, and reasonable and necessary medical and hospital expenses of the last illness of the decedent.
Otherwise, the will must be admitted to probate in the county where the decedent last lived, and then either formal or informal probate proceedings can commence.
Intestacy: Dying Without a Will
When someone dies without a will, she is said to be “intestate,” and the laws of intestacy kick in. In Maine, if a decedent is survived by only a spouse, the spouse inherits everything; alternately, if the decedent is survived by children but no spouse, the children inherit everything. If the decedent is survived by a spouse and descendants, the spouse takes $50,000 of the intestate property plus half of the balance and the descendants inherit the rest. The same applies if a decedent is survived by a spouse and parents (but no children) with the parents inheriting the remainder of the estate.
If there are no surviving spouse, children, or parents, the entire estate is inherited by siblings, and then so forth down the line depending on the degree of relation to the decedent.
Accordingly, you can see the importance of making a Maine will if you would like to have control over the distribution of your assets and to avoid the application of intestacy laws.
Exceptions to Ability to Distribute Property
Only property titled solely in your name at your death may be distributed according to a Maine will; jointly held property with the right of survivorship, then, may not. Also in Maine, a surviving spouse may choose to take an elective share, or portion, of the estate even if he or she was not included in the will.
Form a Last Will in Maine
The basic requirements for a Maine will include the following:
- Age: The testator must be at least 18 years old.
- Capacity: The testator must be of sound mind.
- Signature: The will must be signed by the testator or by some other person in the testator’s presence by the testator’s direction.
- Witnesses: The will must be signed by at least two individuals, each of whom signed within a reasonable time after having witnessed either the signing of the will or the testator’s acknowledgement of the signature or of the will itself.Writing: A Maine will must be in writing to be valid.
- Beneficiaries: A Maine last will and testament may provide for distribution of property to any beneficiary.
Other Recognized Last Wills in Maine
In addition to the last will and testament as described above, Maine also recognizes a handwritten will (“holographic will”) so long as the signature and material portions of the document are in the testator’s handwriting; such a handwritten will does not need to be witnessed.
Changing a Maine Last Will and Testament
A Maine last will and testament may be changed at any time by another will or by codicil, an amendment to the will; any such change must follow the same execution procedures required of wills.
Revoking a Maine Last Will and Testament
The revocation of a Maine will can be accomplished in the following ways:
(1) By a subsequent will which revokes the prior will or part expressly or by inconsistency; or
(2) By being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in his presence and by his direction.
When you are ready to get a last will of your own, LegalZoom can help. We can help you start a last will online in three easy steps online, today.