What Is a Will and Why Would I Want One?

Submitted by dave mallon on Wed, 05/09/2012 - 18:42
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Wabanaki Legal News, Summer 2012

A Will is a legal document that states how and to whom your money and property will be distributed when you die. It allows you to control who gets your belongings.  A detailed Will can prevent family members and others from fighting about your property in court.  So, make a Will if you want to make sure a certain person gets property, money, or a special item.

Please remember that it is a good idea for anyone who owns a house to write a Will even if you believe that your wishes about whom your house should go to are clearly understood.  

Tribal members who are homebuyers in a tribal housing program, but who do not own their home yet, should have a “designated successor” named in the housing agreement with the tribal Housing Authority.  A designated successor is the person who will take over your rights to your house after your death.  If you would like someone other than the designated successor to inherit your house, name the person you want to inherit your house in your Will.  Then, check with your tribal Housing Authority to find out how to change the name of the designated successor to the person named in your Will.

After you create a Will, you sign it in front of two witnesses.  The witnesses sign it as well.  Your Will is only final at the time of your death.  This means you can change your Will at any time but those changes should be made with the same formality as your original Will.  If you want to change your Will, contact the Volunteer Lawyers Project for advice.

If you die without a Will (“intestate”) a court will decide who gets your property.  It will decide how to distribute your property according to applicable laws. 

Who Makes Sure That My Will is Followed?

When you make a Will, you name a person who you want to carry out the directions of your Will.  This person is called the executor or Personal Representative (P.R.).

The PR reads your original Will and decides whether the Will needs to be "probated."  If your Will is probated, a court will review the Will and make sure your directions are followed.  If you have few belongings and your Will is well written, the PR can most likely follow the directions without going to probate court.  

If there is a house or other substantial property, your named PR will send the original Will to the court and ask to be appointed as PR by the court.  Your heirs will be notified about this request. If no one objects, the court gives that person the authority to act as PR.  If there is disagreement, the court will decide who to appoint as PR. The PR may also pay any bills you have left at your death if there is money to do so.

Unlike Maine State Courts, the Penobscot Nation and Passamaquoddy Tribe do not have separate Probate Courts.  The Tribal Courts act as Probate Courts.  Probate matters include inheritance issues (whether or not the deceased left a Will) as well as name changes and guardianships/conservatorships.  When hearing probate matters, the Tribal Court generally follows the requirements of the Maine Probate Code.  Many Probate matters require notice to interested parties (e.g. heirs, relatives, creditors) and publication. There may be some cost to the filing party due to the necessity of publication. 

If I Have a Will and It Goes to Probate, What Will Happen?

Most of the time probate is inexpensive and takes little time. The court simply makes sure everything is in order and the Will is followed.

Sometimes, family members or others will disagree about the way things are being handled. This can happen with or without a Will.  But the clearer you are in your Will, the less chance there is for disagreement about what your wishes are.

Are There Ways Other Than a Will To Pass Along My Property?

Yes.  Here are two examples.

1. Name a loved one as a beneficiary on a life insurance policy. When you die, that person gets a check from the company.  No Will is needed.

2. Give another person an interest in your property as joint tenant while you're alive.  When you die, that person will own the whole property.  No Will is needed.  Please note that this could trigger a MaineCare ineligibility period.  So check with an attorney before making such a transfer.

What If I Have A Power of Attorney?

If you have a Power of Attorney, your agent's power to manage your property interests is only effective during your lifetime.  When you die, your agent no longer has any authority to act on your behalf or to manage or dispose of your property.

Let us help you.

You are not required to have a lawyer write your Will, but it is risky to do it yourself because some laws about Wills and property are complex. 

The Maine Volunteer Lawyers Project may be able to offer free legal assistance through volunteer attorneys regarding issues about Wills and inheritances.  Local informational programs are being developed to provide information to the Native community on these issues.  Further information regarding these programs will be publicized in the near future.  Call us at:  207-942-9348  or  888-956-4276.