1. HOW IS PROPERTY DISTRIBUTED WHEN THERE IS NO WILL?

The laws of intestacy govern the distribution of assets of a decedent who did not leave a will. These laws set forth a system to determine to whom the assets will pass, based on the survivor's relationship to the decedent. For example, if the decedent left no surviving parents or children, the surviving spouse takes the entire estate. If there are surviving children then the surviving spouse takes the first $50,000 of the estate plus one half of the remainder of the intestate estate. The Maine Probate Code sets forth the laws of intestate succession at 18-A MRSA section 2-102 and 2-103. The procedure for estate administration is similar to the procedure when there is a will except that different forms are required. They can be obtained at Probate Court.

2. WHAT DO I DO WITH A WILL AFTER MY SPOUSE/PARENT HAS DIED?

According to the Maine Probate Code, 18-A MRSA section 2-902, anyone in custody of the decedent's will must give it to a "person able to secure its probate and if none is known, to an appropriate court." This means that the will should be delivered to the person named in the will as personal representative, an attorney, or the Probate Court in the county where decedent resided. Willful failure to deliver a will, or destroying it, may result in contempt of court proceedings.

3. WHAT CAN A SURVIVING SPOUSE DO IF HE/SHE IS DISSATISFIED WITH HIS/HER SHARE OF THE PROBATE ASSETS?

According to 18-A MRSA section 2-201 and following laws, the spouse may elect to take what is known as an elective share. The elective share ensures that the surviving spouse receives his/her "fair share" of the estate; it prevents the decedent from disinheriting the surviving spouse. The spouse may elect to receive this share in addition to the allowance provided for surviving spouses, but has to forego any interest he/she would be entitled to under the will or the laws of intestacy. If the surviving spouse wishes to take the elective share, he/she must file a petition with the probate court or the personal representative, within either nine months of the death or six months after the will is probated, whichever is later.

However, a surviving spouse cannot choose the elective share if he or she has previously waived that right. Under 18-A MRSA section 2-204, the right of election of a surviving spouse may be waived by a written agreement signed by the waiving party after fair disclosure. For example, the right of election may be waived through a prenuptial agreement.

In addition, there is another option available to a surviving spouse who married the decedent after the decedent executed a will. A surviving spouse will received the same share of the estate he or she would have received if the decedent had died intestate, unless the decedent deliberately failed to provide for the surviving spouse in a will or the decedent provided for the spouse through other means and intended that provision to be in lieu of providing for the surviving spouse through a will.

4. IS THERE A TIME LIMIT FOR PROBATING A WILL?

Yes. A will must be filed with the probate court within three years of the death. If a will is not filed during this time it becomes invalid.

5. HOW ARE CLAIMS AGAINST THE ESTATE PAID IF THERE ARE NOT SUFFICIENT ASSETS?

Claims against the estate can only be paid after allowances are paid to the surviving spouse or dependent children. Then the personal representative must pay claims against the estate in the following order as set forth at 18-A MRSA 3-805:

1. Costs of estate administration.
2. Reasonable funeral expenses.
3. Debts/taxes with preference under federal law.
4. Medicaid estate recovery claims and reasonable and necessary medical and hospital expenses of the last illness.
5. Debts and taxes with preference under state law.
6. Other claims, such as credit card debts.

If you have any questions about this information, please call the Legal Services for the Elderly Hotline at 1-800-750-5353 or (207) 623-1797.  

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