Probate in Maine: Part 1 - Intestate Succession
Intro: This is a three-part series which attempts to highlight some important features of 18-C M.R.S. §§ 1-101 - 10-118, also known as the Maine Uniform Probate Code. The focus of these articles is on probating an estate after death. I will provide a mixture of law and professional experience navigating the probate system. Part 1 covers intestate succession. Remember that this information does not constitute legal advice, every estate is different and you should not administer someone’s estate or plan your own, based on the information herein.
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Have you ever heard the story of the great-great-uncle dying and leaving you, his long-lost relative the family fortune and mansion? This is mostly told in books, movies, and on television, but it does happen in real life as well. How can it be that somebody you never even knew existed leave their vast wealth to you? The answer is most likely going to be: Intestate Succession. Intestate succession is a lawyer term for “dying without a Will”. If you pass away without ever establishing your own estate plan, be that a Will or a trust, then the State of Maine has a list of rules, known as the probate code, which controls what happens to your wealth.
Article 2 of the probate code deals with Intestate Succession. Generally speaking, the way that intestate succession works is that any assets which are subject to probate (a topic that will be covered in Part 3) are going to pass to your heirs-at-law. Your heirs are only determined at your death, many practitioners argue that you do not even have heirs, unless you are deceased. When you pass away, we look to your living relatives to determine who receives your wealth. The first person we look to is the spouse.
If you pass away while married, then, under the probate code, your spouse is entitled a portion of your estate. That portion ranges from 100% to as low as 50%, depending on whether or not your parents are alive, and if you have children. If there are no parents and no children (or grandchildren, and so on) then the spouse will be entitled to 100% of your assets. If either of your parents are alive, and there are no children, then your spouse is entitled only to the first $300,000 dollars, plus 3/4ths of the balance. The parent receives the remainder. If there are children, then they get priority over the parent. If those children are also the children of the spouse, then the spouse is entitled to only the first $100,000 dollars, plus 1/2 of the balance. The children receive the remainder. If the child is yours, but not your spouse’s child, then the spouse only receives 1/2 of the total estate, and the child receives the remainder.
But what if you’re not married? The above-section only applies to spouses who are legally married. Common-law marriage is not recognized in Maine, domestic partners, boyfriends, girlfriends, life partners, and any other similar situation will not be recognized in the above-distribution pattern. For everyone else, the estate passes as follows:
First, to any children. If those children are not alive, but left children of their own, then the grandchild can step into the shoes of the deceased child. This continues on until there are no more children, grandchildren, great grandchildren, and so on. 100% of the assets will go to anyone under this section, before looking to the next section.
Second, to any parents. The parents will share equally if they are both alive, otherwise, to the sole surviving parent.
Third, to any siblings. Similar to children, if a sibling has predeceased you, then their children (your nieces and nephews) can stand in their shoes.
Fourth, to any grandparents. Things start to get messy here, as we are now looking to both paternal, and maternal grandparents. Again, if grandparents have passed away, then we can have cousins begin to step into the shoes of a grandparent.
For most people, we’ve likely captured all of the assets in one of these categories. If you still do not have any family members falling under any of the above categories, then we begin to look at great-grandparents, before starting to look at deceased spouses. If you still do not have any heirs at this time, the assets will escheat to the state of Maine. Escheat, pronounced [ess-cheat] is another lawyer word for “return your property to the state”.
So, if you do not want your great-great nephew, or the state of Maine to receive your property, and would rather write your own rules, then I would suggest establishing a Last Will and Testament to override these state-provided defaults.
