MAINE WILLS AND TRUSTS REQUIREMENTS
Statutory Authority.
Wills: Maine Revised Statutes, Title 18-C, Art. 2: Intestacy, Wills & Donative Transfers
Trusts: Maine Revised Statutes, Title 18-B: Maine Uniform Trust Code
Maine Will Requirements.
To execute a valid will in Maine, a testator must be of sound mind and at least 18 years of age or an emancipated minor.ย A Maine will must be in writing, signed by the testator (or someone else on behalf of the testator at the testatorโs request), and witnessed by two competent witnesses.ย ย
Witnesses to a Maine will must sign the will within a reasonable time after either observing the testator execute the will or hearing the testator acknowledge the signatureโs authenticity. Although witnesses with no interest in the testatorโs estate are preferable, a Maine will is not invalid solely because it is witnessed by an individual with an interest in the testatorโs estate.
Maine law allows a testator to incorporate by reference another document in existence at the time the testator executes the will. Maineโs Probate Code specifically lets testators incorporate a list identifying intended recipients of tangible personal property items within a testatorโs estate. Sometimes called a โmemorandum of personal property,โ the list must be signed by the testator or in the testatorโs handwriting. It must identify the specific items and beneficiaries with reasonable certainty. A memorandum of personal property can be prepared before or after the willโs execution and may be altered by the testator after it is initially created. Personal property lists cannot include money or real estate.
Maine does not require that wills be notarized, but a Maine will can be made โself-provedโ through execution of a notarized affidavit by the testator and the willโs witnesses.ย Self-proved wills can be admitted in probate based on the affidavit and without the need for witness testimony. The Maine legislature provides a statutory self-proved affidavit form, at Maine Rev. Stat., Title 18-C, ยง2-503.
Within a self-proved affidavit, the testator attests that the will was signed voluntarily by the testator while the testator had legal capacity and was under no constraint or undue influence. Witnesses attest that the testator signed willingly with the intent that the document serve as a will; that the testator had legal capacity to create the will; that the testator was under no duress or undue influence when signing; and that the witnesses signed the will in the presence of the testator and each other.ย ย
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Amendment, Revision, and Revocation of Maine Wills.
A Maine testator can amend an existing will by executing a new will or codicil (an addendum to an existing will). A will or codicil amending an existing will must comply with all requirements for execution of an original will.
Under Maine law, a will can be revoked in whole or in part by the testatorโs performance of a โrevocatory actโ with the intent to revoke the will.ย Revocatory acts include destruction of all or part of the physical document by burning, tearing, or obliterating. The destruction must be accomplished by the testator or by someone else acting at the testatorโs direction while in the testatorโs presence.ย ย
A Maine will may also be revoked by the testatorโs execution of a subsequent will that revokes the prior will either expressly or by inconsistency. Express revocation occurs when a subsequent will states the testatorโs intention to revoke the prior will. Revocation by inconsistency occurs if the testator intended the later will to replace rather than supplement the prior will.ย
A later will that completely distributes the testatorโs estate is presumed to have been intended as a complete revocation of the earlier will. A later will that does not completely dispose of the testatorโs estate is presumed to have been intended as a supplementโin which case the prior will is only revoked to the extent it is inconsistent with the subsequent will.
If a Maine testator is divorced after executing a will or revocable trust, any provisions in the will or trust in favor of the former spouse (or a relative of the former spouse) are deemed to have been revokedโunless the will or trust, a court order, or a valid pre- or post-nuptial agreement provides otherwise.ย ย
If a testator marries after executing a will, the surviving spouse receives a share of the testatorโs estate as if the testator had died without a willโexcept that property devised to a child of the testator born before the marriage and not also the surviving spouseโs child is excluded when calculating the surviving spouseโs intestate share. A later-married surviving spouse is not entitled to an intestate share if the will was made in contemplation of the marriage, the will expressly states that it is effective notwithstanding a subsequent marriage, or the testator provided for the spouse through non-probate transfers intended in lieu of the will.
If a testator has a child after executing a will and the after-born child is not provided for under the will, the after-born child may be entitled to an intestate share in the estate. If the testator already had children when making the will and those children are provided for in the will, an after-born childโs share is limited to the amount devised to the testatorโs other children. An after-born childโs intestate share is inapplicable if the will leaves substantially all of the testatorโs estate to the after-born childโs other parent.ย ย
Holographic and Oral Wills.
A document that does not satisfy the formalities ordinarily required for wills under Maine law may nonetheless be valid as a handwritten (or โholographicโ) will. A holographic will must be signed by the testator personally, and all material provisions must be in the testatorโs handwriting.ย
Maine law no longer recognizes oral (or โnuncupativeโ) wills.
Maine Trust Requirements.
Maine trusts are primarily governed by the Maine Uniform Trust Code, with provisions relating to creation of trusts beginning at Me. Rev. Stat., Title 18-B ยงยง401, et. seq.ย A Maine trust may be created for any lawful purpose that is not contrary to the stateโs public policy or impossible to achieve. In general, a trust and its terms must be for the benefit of the trustโs beneficiaries.
A settlorโto create a valid trust under Maine lawโmust have adequate capacity and express an intent to create a trust. A settlorโs capacity to create, amend, revoke, or fund a revocable trust (or direct its trusteeโs actions) is measured under the same standard applying to wills. A Maine trust is void to the extent its creation was induced through fraud, duress, or undue influence.
Maine trusts must have at least one beneficiary who can be definitely ascertained at present or in the futureโsubject to exceptions for charitable trusts, trusts for the care of animals, and certain trusts created for noncharitable purposes.
A Maine trust must also have a trustee with actual duties to perform.ย Trustees must exercise reasonable care, skill, and caution in carrying out their duties.ย Trustees who manage assets are generally governed by the โprudent investor ruleโ and must invest trust assets prudently considering the trustโs purposes, terms, distribution requirements and other circumstances.ย The prudent investor rule may be expanded, restricted, modified, or eliminated by a trust instrument.ย A Maine trustโs sole trustee cannot also be its sole beneficiary.ย
To the extent a trust is revocable, the trusteeโs duties are owed exclusively to the settlor. The trustee of a revocable trust can follow a direction from the settlor even if it is contrary to the terms of the trust.ย
A settlor can create a Maine trust by transferring property to a trustee (either during life or through a will or other testamentary disposition), by exercising a power of appointment in favor of a trustee, or by declaring that identifiable property is owned as trustee. Though most trusts are evidenced by a written instrument setting forth the trustโs terms, Maineโs Uniform Trust Code allows oral trusts. However, an oral trustโs creation and terms must be established by clear and convincing evidence, and other statutes may require certain types of trusts to be evidenced in writing. Trusts involving Maine real estate, for example, must be evidenced by a signed, written instrument.
Maine law assumes a trust is revocable unless it is expressly made irrevocable. The settlor of a revocable trust can amend or revoke the trust by complying with the terms set forth in the trust instrument, through a subsequent will that expressly references the trust or distributes property that would otherwise pass through the trust, or using any other method that clearly shows the settlorโs intent to revoke or amend the trust.ย
Maine trusts terminate upon revocation or expiration under the trustโs own terms; when there is no purpose of the trust remaining to be achieved; or when the trustโs purposes become unlawful, contrary to public policy, or impossible to achieve. A trust may also be modified or terminated by a court upon the petition of the settlor, trustee, and/or beneficiaries.ย In some circumstances, modification or termination of a trust may be made upon the consent of the trustee and all beneficiaries.ย A court may also modify a Maine trust to conform to the settlorโs intentions or to achieve the settlorโs tax objectives.
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Estate Taxes: Large estates in Maine are potentially liable for estate taxes at both the state and federal levels. Maineโs estate-tax exemption amount is $5.87 million in 2021โabout half of the $11.7 million federal exemption for 2021โso many Maine estates qualify for the state-level tax that do not qualify for the federal version. Unused Maine estate-tax exemptions are also not portable between spouses, like with federal exemptions. Maineโs estate tax rate starts at 8% and increases to 12% for estates over $11.87 million.
Maine does not charge an inheritance tax.
Simplified Probate:ย Maine law authorizes summary administration of qualifying small estates. When available, summary administration simplifies the estate process by allowing administration to conclude without further court supervision. An estateโs personal representative may request summary administration if the estateโs net value does not exceed statutory allowances and exemptions, estate administration costs and expenses, funeral expenses, and reasonable healthcare costs necessitated by the decedentโs last illness.ย
Maine also has procedures for collection of an estateโs personal property through an affidavit completed by the decedentโs successor. To qualify, the estateโs value must not exceed $40,000.ย
Maine Statutory Will:ย The Maine legislature publishes a statutory will template within Maine Rev. Stat., Title 18-C, ยง2-517. A properly executed will completed in the statutory form is presumed valid under Maine law. Maineโs statutory will is a basic form that makes general distributions of assets, names a personal representative, and allows a testator to appoint a guardian if the testator leaves minor children. The statutory will may be insufficient for larger or more complex estates.
Non-Probate Transfers:ย Along with living trusts, Maine law offers several other options for transferring assets outside of probate. POD (payable-on-death) and TOD (transfer-on-death) designationsโwhich provide for automatic transfer of an asset to a named beneficiary upon an ownerโs deathโcan be used in Maine for a variety of assets. For instance, POD designations can be added to financial accounts and CDs, and TOD designations can be used with assets like registered securities and brokerage accounts.ย ย
Similarly, some assetsโlike retirement accounts and life insuranceโallow owners to name a beneficiary who automatically takes ownership of the asset upon the original ownerโs death.
Assets co-owned as joint tenants with a right of survivorship automatically transfer to a surviving owner upon the other ownerโs death, with no need for probate. Maine specifically authorizes joint tenancy with right of survivorship for co-ownership of real estate and corporate securities.ย
Maine law does not recognize tenancy by the entiretyโa form of joint ownership with right of survivorship that can only be used by spouses. A Maine deed purporting to create a tenancy by the entirety is deemed to create a joint tenancy.ย
Transfer-on-Death (TOD) Deeds and Vehicle Titles:ย Maine law authorizes TOD designations on real estate deedsโcommonly called โTOD deedsโ or โbeneficiary deeds.โ A TOD designation is included within a recorded TOD deed during the ownerโs life, and title to the real estate automatically transfers to the named beneficiary upon the ownerโs death. The beneficiary, though, does not acquire present rights in the property until the ownerโs death actually occurs.
Maine does not currently allow TOD designations on motor vehicle titles. However, Maineโs motor vehicle laws provide for automatic transfer on death of vehicle titles held by a married owner. When a married Maine resident who owns a vehicle registered in Maine dies, ownership transfers to the surviving spouseโunless the deceased spouseโs will provides otherwise or a lienholder does not grant permission for the transfer.
Spousal Shares: To protect against disinheritance, Maine law affords surviving spouses a right (waivable by a valid prenuptial agreement) to claim a spousal elective share in the โmarital propertyโ portion of a decedent spouseโs โaugmented estate.โ Along with wealth within the decedent spouseโs net probate estate, the augmented estate includes non-probate transfers (such as property held in joint tenancy or with a POD or TOD designation), and certain property of the surviving spouse.ย ย ย
The portion of a decedent spouseโs augmented estate constituting โmarital propertyโ ranges from 3 to 100 percent, depending on how long the couple has been married.ย The spousal elective share is then equal to one-half of the value of the resulting marital estate.
If a married Maine decedent leaves no will, the surviving spouseโs intestate share depends on the decedent spouseโs surviving relatives. A surviving spouseโs intestate share ranges from the entire estate (if either no descendants or parents survive the decedent or all the decedentโs descendants are also descendants of the surviving spouse) to one-half of the estate (if the decedent leaves at least one surviving descendant who is not the descendant of the surviving spouse).ย ย
Maine Spendthrift Trusts: The general rule is that a creditor of a trustโs beneficiary can attach the beneficiaryโs interest in the trust with court authorization. Spendthrift trusts, which are recognized in Maine and most other jurisdictions, are an exception to the general rule. A spendthrift trust is a trust that includes a provision restraining transfer of beneficiary interestsโthereby protecting trust assets from claims of most creditors of beneficiaries.ย A creditor cannot reach a beneficiaryโs interest in a spendthrift trust until actually distributed to the beneficiary.ย
If a spendthrift trust is revocable, the settlorโs creditors can attach trust assets during the settlorโs lifetime or upon the settlorโs death through claims against the estate. If a spendthrift trust is irrevocable, the settlorโs creditors can only reach the amount of trust assets that can be distributed to the settlor of for the settlorโs benefit.ย ย
Creating a will or trust does not have to be difficult or intimidating.ย However, certain circumstancesโlike second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)โcan add a layer of complexity and result in unforeseen long-term consequences.ย Whenever any out-of-the-ordinary issues are present, itโs a good idea to consult with an experienced attorney familiar with and licensed under the laws of the relevant jurisdiction.
