While it is difficult to think about end-of-life topics, making a will is an opportunity to protect your loved ones after you die. This FAQ answers common questions about wills and Maine law so you can start the process.
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What If I Die Without a Will in Maine?
When a Maine resident dies and has a will, their will dictates how to distribute assets and personal belongings among their loved ones. If a person dies and does not have a will, called “dying intestate,” the court follows state law or intestacy statutes to determine who inherits.
If there is a spouse and children, they receive the assets. If there is no spouse or child, then next of kin such as parents, siblings, or grandchildren inherit. If the state cannot locate the next of kin, the state keeps the assets. Suppose you have a partner but are not married or have stepchildren you have not yet adopted; they will be left out of your estate entirely.
What Does a Will Do?
It is critical to have a will to avoid the state controlling your assets and other decisions, such as who administers your estate or cares for your young children. In your choice, you can do the following:
- Name a personal representative or executor who is responsible for locating your will and assets, filing the will with the probate court, ensuring your estate pays the administrative fee, and carrying out your wishes through the probate process.
- Identify and give away specific personal property and real estate to the people you choose
- Name beneficiaries to inherit the rest or remainder of your property
- Make charitable bequests to charities of your choice if you wish
- Name guardians for minor children so someone you trust can care for them
- Name caregivers for pets and set aside funds for their care
Because you made these decisions in your will, you streamline the probate process, saving time and court fees.
What Doesn’t a Will Do?
While a will transfers many of your assets, there are some assets that a will cannot transfer. These are called non-probate assets and pass to named beneficiaries. Examples of non-probate assets include:
- Retirement accounts, 401(k)s, IRAs, and Keoghs
- Property owned as joint tenants with right of survivorship
- Trusts, including living trusts and assets owned by trusts
- Funds in payable on death or transfer on death bank accounts or investment accounts
- Life insurance payments (to beneficiaries other than to the estate itself)
- Social Security death benefits
You name a beneficiary and a backup beneficiary in case your primary beneficiary dies before you. If you have an account or policy without a named beneficiary, that asset goes into your probate estate.
Who Can Make a Will in Maine?
For a will to be valid in Maine, the testator (person making the will) must meet some requirements, including:
- Age: The testator must be 18 years old or a legally emancipated minor.
- Sound Mind: The testator must be of sound mind, which means they know who their beneficiaries are, know what they generally own, and understand they are making a will.
The testator must have a sound mind at the time they make and sign their will. Maine residents with concerns about if they can make a will should consult with an estate planning attorney for legal advice.
Does Maine Have a Statutory Will?
Maine has a statutory will, a form they provide. You can find it in Maine statutes Title 19-C Probate Code, Article 2, section 517. However, the form limits how you can distribute your property, and only the testator can sign it. There are better options for a Maine will. You can create your own customized to your needs using self-help solutions such as FindLaw Legal Forms and Services. Or hire an estate planning attorney, such as one in Portland, Bangor, or Augusta, for legal advice.
What Types of Wills Does Maine Accept?
It is important to understand the various types of wills that are options for testators in the state of Maine.
- Handwritten Will: Also called a holographic will, this is a will with the material portions in the testator’s handwriting and signed by the testator without witnesses. There does not need to be a witness for it to be valid.
- Oral Will: Sometimes referred to as a nuncupative will, this is a will that the testator speaks, but it is not in writing. Oral wills are not valid in Maine.
- Electronic Will: A digital will, or one that only exists in electronic format, is invalid in Maine.
A traditional will is one that is typewritten or printed and signed by the testator in front of two witnesses. Handwritten wills are less reliable than a traditional will because they may be subject to will contests and may not hold up in court.
Can I Make My Own Will in Maine?
Yes. You can make your own will in the state of Maine. You are not required to have an attorney make it for you. If you know your wishes, you can create the will yourself using a service such as FindLaw Legal Forms and Services to ensure your will meets all of the state’s requirements.
How Do I Make My Will Valid in Maine?
For a will to be valid in Maine, there are several components that a will must include:
- Signature: As the testator, you must sign your name yourself or have someone else sign for you in your conscious presence and at your direction.
- Witnesses: Two witnesses must sign the will in person within a reasonable time after seeing the signing of the will or having the testator acknowledge to them that it is their will or their signature on the will. Any adult who is generally competent can witness a will. An interested witness is someone who is a beneficiary in the will. Maine does not disqualify an interested witness or revoke the bequest to the interested witness.
- Notary: There is no requirement to use a notary public to attest to your signature unless you use a self-proving affidavit.
- Self-Proving Affidavit: Maine statutes provide a self-proving affidavit which is a document the testator and witnesses sign and swear to before a notary. When attached to the will, it replaces the need for witness testimony about the will’s execution in court.
Can I Disinherit My Spouse in Maine?
You are not required to include your spouse in your will, but under Maine law, a surviving spouse may claim an elective share of your estate. An elective share is a portion of your estate that a spouse may receive if left out of the will. In Maine, the elective share is up to half of the decedents’ marital property in the estate.
Can I Disinherit My Children in Maine?
You are also not required to leave anything to your children. However, if you had no living child living when you signed your will but have a child that is born or adopted after the will was signed (called an omitted child), then the child has a right to inherit what they would have gotten if you had died without a will.
If you had at least one living child when you executed the will and left bequests to a child or children, then a child who is born or adopted after the execution of the will is entitled to a portion of the estate as well, with specific rules specified in the statute.
The best way to disinherit a child is to specifically state in your will that you are disinheriting them.
What Estate Planning Documents Should I Have in Maine?
In addition to a will, there are other estate planning documents you should have in Maine, including:
- Power of Attorney. This document designates the person of your choice to have the authority to handle your financial affairs if you are unable to do so yourself. Your agent is someone you trust to act in your best interests.
- Health Care Directive. Maine has an advance directive document that contains two parts. It allows you to name an agent who can make health care decisions for you if you are unable to make them yourself. It has a second section that includes your instructions for health care for life-sustaining and end-of-life care.
Fortunately, making a valid will and creating other Maine estate planning documents is easy with online estate planning templates.