Do I need a Will?

I am married. Do I still need a Will?

If you are over the age of 18 and of sound mind, the answer is YES.

If you die without a Will (known as dying “intestate”), you might assume your spouse gets everything. This is not true under Maine law.

How much of your estate your spouse inherits depends upon a variety of factors including: whether you own property jointly or individually, whether you have completed valid beneficiary designation forms, and whether you have living issue (children, grandchildren, great-grandchildren, etc.) or living parents.

If you die without a Will, property you own individually and over which you did not designate a beneficiary becomes part of your “intestate estate”.

What happens to my intestate estate when I die?

If you have living issue, your spouse inherits the first $50,000, plus ½ of the balance of your intestate estate. If your living issue are not the issue of your spouse, then your spouse only inherits ½ of your intestate estate. The remaining ½ is divided amongst your issue.

If you have no living issue but have a living parent, your spouse inherits the first $50,000, plus ½ of the balance of your intestate estate. Your living parent inherits the remaining ½, or if both your parents are living, they equally split the remaining ½.

Can you give me some examples?

Example 1:     You are married, and you and your spouse have one child. You and your spouse own all of your property jointly, except for your house which is in your name. The house is worth $250,000. You do not have a Will when you die. Based on these facts, your spouse would inherit a 60% interest in your house ($150,000 of value) and your child would inherit a 40% interest in your house ($100,000 of value).

Example 2:     Assume the same facts as in Example A, but that your child is from a prior marriage. Your spouse would inherit a 50% interest in your house ($125,000 of value) and your child would inherit a 50% interest in your house ($125,000 of value).

Example 3:     Assume the same facts as in Example A, but that you are married, have no children and your mother is living. Your spouse would inherit a 60% interest in your house ($150,000 of value) and your mother would inherit the other 40% interest in your house ($100,000 of value).

Important Note about Real Estate Deeds: You may assume that because your name and your spouse’s name appear on your deed, that your spouse will automatically inherit the house upon your death. This is not necessarily true. If your deed does not include the term “as joint tenants,” “in joint tenancy,” “with rights of survivorship,” “to them and to the survivor of them,” or other similar language, then under Maine law you own the property with your spouse as tenants in common. This means that upon your death, your ownership interest in the property passes as part of your “intestate estate” and not automatically to your spouse.

Stephanie Strouse is an estate planning and probate attorney at Drummond & Drummond, LLP in Portland, Maine. If you would like to speak to Stephanie about preparing a Will, please contact her at (207) 774-0317.