Articles

Making a Will in Maine

FIVE GOOD REASONS TO MAKE A WILL

  1. Having a Will Ensures that Your Wishes will be Honored. In Maine, if you do not have a Will, State law will determine how your property will be distributed and who will manage your estate upon your demise. With a Will, you are the one who decides to whom and how your assets will be distributed and who will take care of your financial affairs.
  2. A Will May Be Your Main Estate Planning Document. In simple estate planning situations, a Will may be the main document in your estate plan. In more complex estate planning situations, you may want to use a “Revocable Trust” as the main document in your estate plan. In this situation, your Will “pours over” any assets which you did not transfer to the Revocable Trust during your lifetime to the Trustee for the Trust to administer.
  3. A Will Can Be Drafted to Reduce Your Estate Taxes: Your Will can take advantage of estate tax planning options to lessen the estate tax impact such as charitable gifts, marital deduction gifts, and credit shelter gifts. Your Will can include instructions on how to administer specific properties, including estate and income tax elections.
  4. A Will Can Provide for the Care of Your Children and for Those You Care for Who are Disabled: If you have minor children or are responsible for the care of disabled persons, you can appoint in your Will a guardian to have custody and care for them, and a conservator or guardian of the property to be responsible for administering property for them. You may also provide for any share of your estate passing to a minor or disabled person to be held in a trust.
  5. With a Will, You Decide Who is Your Personal Representative: Your Will also designates a Personal Representative (or Executor) to handle your affairs after your demise. The Personal Representative collects your assets, administers your estate, settles claims and tax obligations, and arranges for distribution of your estate to those you have selected to be your beneficiaries.

HOW TO MAKE A WILL IN MAINE:

In Maine, any person 18 or more years of age who is of “sound mind” may make a Will. The “sound mind” standard means you can identify the natural objects of your bounty and be able to identify, in general terms, your assets and liabilities.

In Maine, you must be the person signing the Will, or someone can sign in your presence and at your direction. Your Will must also be signed by at least 2 persons who witnessed your signing or your acknowledgment of your signature. Standards may vary in other states and countries.

WHAT SHOULD GO INTO YOUR WILL:

Will drafting is not recommended as a “do it yourself” exercise. You should always obtain knowledgeable counsel and advice to be sure that your Will is properly prepared and executed. Here are some points that your counsel will address.

  1. Declaration and Publication.A Will should contain:
    1. A statement that you are making your Last Will, revoking all prior Wills and Codicils. A “codicil” is an amendment or modification of an existing Will.
    2. A declaration of your domicile or legal residence, which is helpful in defining where the Will should be offered to a Court for “probate”. (“Probate” is a term derived from the Latin word meaning “to prove” and a Will which has been accepted for probate has been “proved” to be the last Will.). The declaration also defines what State laws, including State estate tax laws, apply to your estate.
    3. A statement of family relationships: Identifying spouses and other family members by name helps to define your legal heirs and demonstrate your knowledge of the likely objects of your bounty.
  2. Direction to Pay Debts and Taxes. Although your Personal Representative is responsible to pay to your debts and tax obligations, you may identify in your Will how these expenses will be paid and identify the source of funds for payment of debts and taxes.
  3. Disposition of Tangible Personal Property. You may give specific directions about who will receive tangible items such as automobiles, household possessions and family heirlooms. In Maine, you can either make gifts of personal property in your Will or you can make reference to a separate written memorandum.
  4. Specific Gifts. You can provide for gifts of cash or specific items of property to beneficiaries of your choice. Be sure to provide alternate dispositions in case the original beneficiary does not survive you or declines to accept the gift. Also bear in mind the possibility that the specific item in question may be sold or disposed of or given away by you during your lifetime or that an investment may change in form as a result of mergers or acquisitions, so you can provide for this possibility.
  5. Charitable Gifts. You can provide for specific gifts of money or property to charitable organizations. Be sure to verify the correct name of the charitable organization and confirm that the organization has, in fact, been recognized as a charitable organization by the Internal Revenue Service. Alternate provisions should be included in case the organization changes its name or ceases to exist or no longer qualifies as a charitable organization.
  6. Tax Qualified Gifts. If you plan to use the Will as the principal document in your estate plan, you may include marital deduction qualified gifts and credit shelter qualified gifts in your Will. Estate taxes can be quite complicated and you will want to be sure to work with your counsel to meet statutory requirements so as to minimize estate taxes.
  7. Residuary Gift. All well-drafted Wills contain a “residuary gift” to specify how any of your remaining or “residual” assets are to be distributed. In drafting a Will, you will want to plan carefully about what will happen to the share of a residuary beneficiary if he or she predeceases you. In cases where you use a Revocable Trust as your principal estate planning document, the residuary clause will “pour over” into the Trust. A “Revocable Trust” is a written agreement between you and a “trustee” in which your trustee agrees to manage the property in accordance with your directions and instructions. A “Revocable Trust” can be “revoked” at any time during your lifetime so that you are always in control of your assets. The “Revocable Trust” can be a helpful way of passing assets without the involvement of the probate court, protecting family privacy, and providing for management of assets if you become ill or disabled.
  8. Trust Provisions. In addition to “Revocable Trusts” you can also create trusts in your Will. These arrangements are called “Testamentary Trusts.” If you provide for the creation of trusts for beneficiaries (such as a marital deduction trust, credit shelter trust, or trust for minors), you will want to include provisions to govern the Trustee’s duties and responsibilities in administering the trust fund. This might include a reference to the trustees’ powers under State law or a detailed recitation of the Trustee’s powers.
  9. Personal Representative Powers. A “Personal Representative” (sometimes called the Executor or the Administrator) is the person whom you designate to settle your affairs, collect your assets, pay your bills and expenses, and distribute your assets to your chosen beneficiaries. You may want to specify in detail the powers of your Personal Representative, either by referring to the powers of the Personal Representative under state law or by listing these powers in the Will. Your Will can include directions to the Personal Representative about exercising various tax elections.
  10. Nominating Guardians and Conservators. If you have minor or disabled children, you should nominate persons to serve as guardians and conservators. Guardians are responsible for personal care needs of the individual. Conservators are responsible for managing and controlling property of a minor or disabled person.
  11. Nominating Personal Representatives. You should nominate the person who you wish to be responsible for administering your estate.
  12. Execution and Acknowledgement. Traditionally, a Will concludes with an “attestation” clause in which you declare the document to be your last Will and sign it in the presence of the number of witnesses required by state statute who will sign the Will in your presence. Wills may be typically “self proved” through a procedure by which you and the witnesses sign in the presence of a notary public and complete a “self proving” affidavit.

Special Forms of Wills

  1. Nuncupative Wills. A nuncupative Will is an oral Will. Under certain circumstances, typically involving a soldier or sailor in a war zone or emergency, it may be possible to establish an oral Will. These are not recommended due to the difficulty of proof.
  2. Holographic Wills. A holographic Will is one which fails to meet the execution requirements imposed by law (typically due to the lack of appropriate witnesses’ signatures). Such a Will is valid regardless of whether or not witnessed if the signature and material provisions are in the handwriting of the testator. These are not recommended due to problems of proving the validity of the handwriting and the lack of witnesses who can testify about the circumstances of signing the Will.
  3. Statutory Form Wills. Maine has an official statutory form of Will which can be obtained from the Registers of Probate. The form is somewhat difficult to complete and should not be used without appropriate instruction.

Planning Ahead Will Help You and Others.

If you need legal assistance in preparing any of the documents discussed here, including a Will or Trust, you can refer to my Phil Hunt webpage at www.perkinsthompson.com for more information about me. I would be happy to assist you with this, or with any other estate planning or elder law matter. I can be reached at (207) 774-2635 or phunt@perkinsthompson.com for more information.