By Mia Poliquin Pross, Esq.

The last will and testament is an important part of a comprehensive estate plan. A basic estate plan should include at least three documents: a durable financial power of attorney, a health care power of attorney, and a last will and testament (i.e., a will). The two powers of attorney documents allow you to name someone you trust to handle health care and financial matters for you while you’re alive if you can’t (or don’t want to) do it on your own. The will, however, takes effect only after you die. There are a number of items one needs to address in a will.

It’s important to remember that your will only controls assets that are not jointly titled with anyone else, and that do not have a beneficiary designation on them. Those items will pass directly to the joint owner or to the named beneficiary. Your will controls everything else. Your will names the people or entities that you want to inherit the property that’s passing through your will after you die. Some people want equal shares distributed, and some people choose to provide unequal shares, or to leave specific property to specific people (for example, your house to one child, and your camp to another, or two-thirds of the estate to one person, and one-third to a favorite charity). You should specify what you want to happen if someone you named dies before you. Would that person’s share be passed down to his or her children, or to someone else? You should also clearly state your intentions if you are disinheriting someone, like an estranged child.

In addition, you should provide specific instructions for any minor children, such as naming a guardian and directing how money should be held or spent for them. If you are leaving assets to a person with disabilities, you may want to consider leaving those assets in a special kind of trust for that person to protect any public benefits they may receive.

Your will also identifies your Personal Representative (PR), sometimes referred to as an “executor.” This is an important role that comes with authority and responsibilities that are mandated by law. The PR is the person with the legal authority to handle all of your assets after you are gone and is the person who has the authority to access information about your estate. The PR can file for probate of your will at the Probate Court, if it’s necessary (whether your estate needs to be probated is determined by the nature and amount of assets you own when you die). The PR is responsible for seeing the probate process through to completion, paying expenses and any debts of your estate, liquidating and consolidating assets, and eventually distributing your estate to the beneficiaries named in your will. The person you name should be someone you deem trustworthy and who will handle your estate swiftly and with care. It is wise to also name an alternate PR.

Your will should also address disposition of any “tangible personal property.” This can include items such as jewelry, family heirlooms, photo albums, furniture, art work, and other belongings in your home. It is often these sentimental items that cause conflict in families. Most wills address this issue by stating there is a separate list, outside of the will, and that the PR should distribute those items according to the directions in the list. The reason to list these items separate from the will is to allow you to manage and update this list, without having to redo your will every time you get a new item. Sometimes, people start giving these items away prior to death and then they update their list accordingly.

Finally, you’ll want to make sure your will is executed in accordance with Maine law. Once your will is complete and signed, it is best not to write on it or alter it by hand. Making handwritten edits or notations in the margins can often create confusion and conflict after you are gone. If changes are needed, it would be best to revoke your will and prepare a new one, or prepare a formal amendment to your will, called a codicil. There are many other technical considerations that an experienced estate planning attorney can walk you through to design a will and estate plan that is most appropriate for your circumstances.

Originally published in Sun Journal Estate and Funeral Planning Guide, May, 2023