1.7.20 Maine

Intestacy

General Definition

Any part of the estate of a decedent not effectively disposed of by his will. Sec. 2-101.

Order of Distribution

The intestate share of the surviving spouse is:

1. The entire estate if:
   A. There is no surviving descendant or parent of the decedent;
   B. All of the decedent's surviving descendants are also descendants fo the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;
   
2. The first $300,000, plus 3/4 of the balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent.
   
3. The first $100,000, plus 1/2 of the balance of the intestate estate, if all of the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent;
4. One half of the intestate estate if there are surviving descendants who are not descendants of the surviving spouse. Sec. 2-102.

The part of the intestate estate not passing to the surviving spouse, or the entire estate if there is no surviving spouse, passes as follows:

1. To the issue of the decedent; to be distributed per capita at each generation;
2. If there is no surviving issue, to the decedent's parent or parents equally;
3. If there is no surviving issue or parent, to the issue of the parents or either of them to be distributed per capita at each generation;
4. If there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the issue of the paternal grandparents if both are deceased to be distributed per capita at each generation; and the other half passes to the maternal relatives in the same manner; but if there is no surviving grandparent or issue of grandparents on either the paternal or maternal side, the entire estate passes to the relatives on the other side in the same manner as the half; or
5. If there is no surviving issue, parent or issue of a parent, grandparent or issue of a grandparent, but the decedent is survived by one or more great-grandparents or issue of great-grandparents, half of the estate passes to the paternal great-grandparents who survive, or to the issue of the paternal great-grandparents if all are deceased, to be distributed per capita at each generation; and the other half passes to the maternal relatives in the same manner; but if there is no surviving great-grandparent or issue of a great-grandparent on either the paternal or maternal side, the entire estate passes to the relatives on the other side in the same manner as the half. Sec. 2-103.

Any person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of homestead allowance, exempt property and intestate succession, and the decedent's heirs are determined accordingly. If the time of death of the decedent or of the person who would otherwise be an heir, or the times of death of both, cannot be determined, and it cannot be established that the person who would otherwise be an heir has survived the decedent by 120 hours, it is deemed that the person failed to survive for the required period. Sec. 2-104.

If there is no taker under Maine law, the intestate estate passes to the State. Sec. 2-105.

Will Qualifications

Common Law or Community Property

Maine is a common law, elective share state.

Capacity

Any person 18 or more years of age who is of sound mind may make a will. Sec. 2-501.

Drafting

Every will shall be in writing signed by the testator or in the testator's name by some other person in the testator's presence and by his direction, and shall be signed by at least two persons each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will. Sec. 2-502. Any person generally competent to be a witness may act as a witness to a will. A will is not invalid because the will is signed by an interested witness. Sec. 2-505.

A will that does not meet the requirements above is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator. Sec. 2-502.

Any will may be simultaneously executed, attested, and made self-proved, by acknowledgment by the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state where execution occurs and evidenced by the officer's certificate. Sec. 2-503.

Beneficiaries

A devisee who does not survive the testator by 120 hours is treated as if he predeceased the testator, unless the will of decedent contains some language dealing explicitly with simultaneous deaths or deaths in a common disaster, or requiring that the devisee survive the testator or survive the testator for a stated period in order to take under the will. Sec. 2-702.

Modification

A will or any part thereof is revoked:

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. Sec. 2-506.

Probate Process

Naming of Personal Representative

To acquire the powers and undertake the duties and liabilities of a personal representative of a decedent, a person must be appointed by order of the judge or registers, qualify and be issued letters. Administration of an estate is commenced by the issuance of letters. Sec. 3-103.

Submission of Will

After the death of a testator, any person having custody of a will of the testator shall deliver it with reasonable promptness to a person able to secure its probate and if none is known, to an appropriate court for filing and recording until probate is sought. Any person having custody of a will is not liable, to any person aggrieved, for failure to learn of the death of the testator of that will and the failure, therefore, to deliver that will as required. Any person who willfully fails to deliver a will, or who willfully defaces or destroys any will of a deceased person, is liable to any person aggrieved for the damages, which may be sustained by such failure to deliver, or by such defacement or destruction. Any person who willfully refuses or fails to deliver a will, or who so defaces or destroys it, after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to penalty for contempt of court. Sec. 2-515.

To be effective to prove the transfer of any property or to nominate an executor, a will must be declared to be valid by an order of informal probate by the registers or an adjudication of probate by the judge. Sec. 3-102.

Notifications

Not later than 30 days after his appointment every personal representative must give information of his appointment to the heirs and devisees, including, if there has been no formal testacy proceeding and if the personal representative was appointed on the assumption that the decedent died intestate, the devisees in any will mentioned in the application for appointment of a personal representative and, in any case where there has been no formal testacy proceedings, to the devisees in any purported will whose existence and the names of the devisees are known to the personal representative. The information must be delivered or sent by ordinary mail to each of the heirs and devisees whose address is reasonably available to the personal representative. The information must include the name and address of the personal representative, indicate that it is being sent to persons who have or may have some interest in the estate being administered, indicate whether bond has been filed, and describe the court where papers relating to the estate are on file. The personal representative's failure to give this information is a breach of his duty to the persons concerned but does not affect the validity of his appointment, his powers or other duties. Sec. 3-705.

Inventory

Within 3 months after his appointment, a personal representative must prepare and file or furnish an inventory of property owned by the decedent at the time of his death, listing it with reasonable detail, and indicating as to each listed item, its fair market value as of the date of the decedent's death, and the type and amount of any encumbrance that may exist with reference to any item. The inventory must also include a schedule of credits of the decedent, with the names of the obligors, the amounts due, a description of the nature of the obligation, and the amount of all such credits, exclusive of expenses and risk of settlement or collection. Sec. 3-706.

Homestead, Elective Share, Exempt Property and the Family Allowance

The surviving spouse is entitled to a homestead allowance of $22,500. If there is no surviving spouse, each minor child and each dependent child of the decedent is entitled to a homestead allowance amounting to $22,500 divided by the number of minor and dependent children of the decedent. Sec.2-402.

If a married person domiciled in this State dies, the surviving spouse has a right of election to take an elective share of 50% of the marital-property portion of the augmented estate. Sec. 2-202.

In addition, the surviving spouse is entitled from the estate to value not exceeding $15,000 in excess of any security interests in the estate. If there is no surviving spouse, children of the decedent are entitled jointly to the same value. If encumbered assets are selected and if the value in excess of security interests, plus that of other exempt property, is less than $15,000, or if there is not $15,000 worth of exempt property in the estate, the spouse or children are entitled to other assets of the estate, if any, to the extent necessary to make up the $15,000 value. Sec. 2-403.

The family is entitled to a reasonable allowance in money out of the estate for their maintenance, which allowance may not continue for longer than one year if the estate is inadequate to discharge allowed claims. Sec. 2-404.

Debts and Distributions

All claims against a decedent's estate which arose before the death of the decedent, including claims of the State and any subdivision of the State, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, if not barred earlier by another statute of limitations or nonclaim statute, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented within the earlier of the following:

1. Four months for creditors who are given actual notice and for all creditors barred by publication; Sec. 3-801(2).or
2. Nine months of the decedent's death. Sec. 3-803.

If the assets of the estate are insufficient to pay all claims in full, the personal representative will make payment in the following order:

1. Costs and expenses of administration;
2. Reasonable funeral expenses;
3. Debts and taxes with preference under federal law;
4. Medicaid benefits recoverable and reasonable and necessary medical and hospital expenses of the last illness of the decedent, including compensation of persons attending the decedent;
5. Debts and taxes with preference under other laws of this State;
6. All other claims.

No preference will be given in the payment of any claim over any other claim of the same class. Sec. 3-805.

The personal representative will proceed to pay the claims allowed against the estate in the order of priority prescribed, after making provision for homestead, family and support allowances, for claims already presented which have not yet been allowed or whose allowance has been appealed, and for unbarred claims which may yet be presented, including costs and expenses of administration. Sec. 3-807.

Estate Tax

Maine's estate tax exemption for the estates of decedents dying on or after January 1, 2022 is $6,010,000. MRS Title 36 Sec. 4102-5.

For taxable estates above the exemption amount, Maine has a graduated estate tax. If the taxable estate is between 0 and $3,000,000 above the exemption amount the estate tax rate is 8%. If the taxable estate is between $3,000,000 and $6,000,000 above the exemption amount the estate tax rate is 10%. Finally, if the taxable estate is more than $6 million above the exemption amount the estate tax rate is 12%. MRS Title 36 Sec. 4103-1

Income Tax Charitable Deductions and/or Credits

Maine allows a taxpaying resident to deduct itemized charitable gifts in the same manner as the IRS. MRS Title 36 Sec 5125. However, total itemized deductions from Maine AGI claimed on a return may not exceed $28,350. MRS Title 36 Sec 5125(4).