The Importance of Wills and Trusts

I cannot emphasize enough the importance of having a will or a trust, especially if someone wishes to leave behind property to those outside of one's family. If a person does not have a will or a trust, then one must rely on the statutes of intestate succession for the disposal of one's assets. Intestate succession statutes are laws that dictate who will benefit from your estate's property and the portion of the property they will be entitled to in the absence of a will or trust. This particular post focuses on Maine law. My goal is to write a subsequent post focused on New York law.

Until July 1, 2019, the law that governs intestate succession can be found in the Probate Code in Title 18-A of the Maine Revised Statutes §§ 2-101 to 2-114. On July 1, 2019, the new Probate Code (Title 18-C) will take effect (with the statutes governing intestate succession being found in 18-C M.R.S. §§ 2-101 to 2-118). While the Probate Code does the best job it can in contemplating what many people would want for the disposal of their estate assets (e.g., leaving things to spouses, children, or other relatives), you may want to customize your estate plan. Maybe you are encountering difficulties in an interpersonal relationship with a family member. Perhaps you wish to give a sizable portion of your estate to charitable causes. These examples illustrate that there are various reasons why testators (those executing wills) or settlors (those creating trusts) choose an active approach in directing the future of their assets instead of relying on the laws of intestate succession.

Another advantage of having a will or a trust is that you avoid the different outcomes of intestate succession that result from changes to the Probate Code. For example, under Title 18-A of the Maine Revised Statutes (which remains in effect until July 1, 2019) if you were to die and leave behind a surviving spouse/registered domestic partner as well as children where both you and your spouse/registered domestic partner are the parents of all the children then the spouse/domestic partner would be entitled to the following from the estate: "the first $50,000, plus 1/2 of the balance of the intestate estate." 18-A M.R.S. § 2-102(3). However, the outcome of the same scenario under the Probate Code that will be taking effect on July 1, 2019, would result in the surviving spouse/registered domestic partner receiving "[t]he entire intestate estate." 18-C M.R.S. § 2-102(1)(B). This example illustrates the potential fluctuations in outcomes for intestate succession that stem from changes in the Probate Code.

The point I want readers to take away from this post is that it is vitally important that one's wishes regarding the disposition of assets be known through a will or a trust. In the absence of a will or a trust, the ultimate recipients of a person's assets will be determined by intestate succession.

If you would like to speak with me about creating a will, I would encourage you to contact me through the methods listed below:

Phone: 207-500-9533

E-mail: bradley.sica@gmail.com

Mailing Address: P.O. Box 538, Canton, ME 04221