The Covid-19 Testamentary Work Around – The Holographic Will

Some, but not all, states authorize holographic wills. Maine is one of those states that permit holographic wills. Title 18-C M.R.S. Section 2-502.  A holographic will, in Maine, is defined as a will that does not comply with Section 2-502(1) if the signature and material portions of the document are in the testator’s handwriting. In essence,  it is a handwritten will.  Typically, lawyers despise holographic wills, as they are a recipe for disaster.  However, when your practice is unable to execute wills because clients are concerned about Covid-19, a very short (1/2 a page) pour-over holographic will, for the client to transcribe in longhand can offer a witness free alternative to an in-person signing.

When done correctly, the will is executed by the client first, and then, a traditional revocable trust is executed.  Maine, like many states, has default law that applies where a will is silent, and the pour-over holographic will envisioned here would likely attempt to make good use of that default law so as to save the client from having to copy more than a page.

Now, in Maine, a revocable trust need not, unless its terms provide, require witnesses nor must it be acknowledged, though both are commonly used.  At the very least, signatures on trusts are frequently acknowledged before a notary so that they can be, should the need arise, recorded or introduced into evidence as an attested instrument and because it helps others accept the instrument as “legal.”   If the client cannot appear before a notary in person in Maine, an e-notary, such as that authorized in Virginia to take foreign acknowledgments can be used.  In Maine, Title 4 M.R.S Section 1011,, provides for recognition of notarial acts performed outside this State for use in this State with the same effect as if performed by a notary public of this State when performed by certain persons authorized pursuant to the laws and regulations of other governments.  In short, the client can have their signature on the trust acknowledged without leaving the safety of their home.  The same goes for deeds and powers of attorney.   Sadly, Health Care Directives in Maine are a different story as they require 2 in-person witnesses.  Unfortunately, there is no such thing as a holographic Advance Health Care Directive.  Perhaps there should be.

While the holographic workaround is not the most elegant way to present an estate plan to a client, these are desperate times, and desperate times may call for desperate measures. Hopefully, state Governors will start to realize that the legal community during the Covid -19 crisis needs new tools to keep them and their clients safe.   Until then, when you have an elderly client with a strong wrist but a weak heart, or any serious health concern, consider the holographic will solution and, if there is a need, give the client a free revocable trust upgrade to allow for an out of the office document signing.  Our position as lawyers does not entitle us profit, only to serve.  Serve your clients well, and you will be rewarded.

Happy Drafting.


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NEEP Adds New Automated Documents

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Do you have estate planning form issues?  NEEP has the answer.

New England Estate Planning (“NEEP”)(, which opened for attorney registration on January 1st, has just announced that it has added more documents to its automated estate planning library. Only lawyers actively licensed in Maine, New Hampshire, or Massachusetts can register with NEEP.  Attorney registration is free.  NEEP has not opened its automated platform at this time to all attorney registrants but plans on launching this part of the site by January 1, 2021.  Until that time, NEEP has been made available to some beta users.

What type of forms will NEEP make available?

The breadth of coverage is the central focus of NEEP.  There are other services, such as ElderDocs or InterActive Legal, that are better situated for technical drafting.  Maximum efficiency, and a place to start, for the drafting lawyer or his or her staff, is what NEEP is all about.

Basic wills

Revocable trusts (individual and joint)

Powers (financial and health)



Letters (to clients and third parties)

Client acknowledgments

Engagement agreements


Probate forms

Appointments, Acceptances, Resignations


Nonjudicial Settlement Agreements

Small Estate Affidavits



Gift deeds

Basic court filing forms (Entry of appearance, motion, order, etc.)

Probate forms

And more!

NEEP will focus on the forms that slow your busy practice down and make them accessible and useful.   From time to time, every lawyer has need of a form that is missing from his or her arsenal.  NEEP is here to address that need.  NEEP is also creating the first attorney rated directory of other professionals and the first automation site that will enable third parties to integrate their information into forms that save lawyers time.

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The Law Governing a Will – Can You Change It?

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The Law Governing a Will – Can You Change It? 

Traditionally, a will in Maine was governed by the place where the decedent was domiciled at the time of his or her death.   The common law definition of “domicile” in Maine means the place (A) where a person resides, and (B) where that person intends to remain and, whenever absent, intends to return. See State v. Falcone, 2006 ME 90, ¶ 9, 902 A.2d 141.  That meant that a court would apply the laws of the State of Maine regarding meaning and effect to the will and that the Personal Representative (also known in other jurisdictions as an Executor) would have the powers, and be subject the duties and requirements, set forth in Maine’s statutes and case law.

Under Prior Law, Trusts Were Treated Differently

Under prior law, trusts were not similarly restricted.   A trust could set forth a governing law other than the State of Maine.  In a trust, there are very few restrictions on what default laws the trust must abide by.  Generally, the terms of a trust are only limited by the knowledge and skill of the drafting attorney, which, in theory, reflect the intent of the client.  For this reason, and others, trusts are often the preferred estate planning vehicle.

Maine’s New Uniform Probate Code

The Maine Uniform Probate Code (MUPC), Title 18-C M. R. S. § 1-101 et seq., with a delayed effective date of September 1, 2019, revokes Title 18-A.  Title 18-C brings with it significant changes to the law.  One change is ushered in by § 2-703, which enables the drafter of any instrument, including but not limited to Wills, to alter the governing law.  Local, Maine law, would only govern in the absence of a governing law provision unless the application of that law is contrary to the provisions relating to the elective share, exempt property and allowances or any other public policy of Maine applicable to the disposition. This is a change in the law from the former Title 18-A and establishes parity between the Maine Uniform Probate Code and the Maine Uniform Trust Code. See Title 18-B M.R.S. § 107.

To be clear § 2-703 only addresses the “meaning and legal effect” of an instrument.  In Maine, choice of law as to execution of wills is governed by 18-C M.R.S. § 2-505,  which provides “A written will is valid if executed in compliance with section 2-502 or if its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode or is a national or if executed in compliance with 10 United States Code, Section 1044d.”  10 United States Code, Section 1044d addresses military testamentary instruments and is not further discussed.

The enactment of § 2-703 is important because it, with the rest of Title 18-C, puts trusts and wills on equal footing.  Many wills contain trust provisions.  This fact confuses people.  However, a trust isn’t a “thing” so much as it is an agreement (or declaration) that establishes a special relationship among parties and that relationship can be established in a separate instrument (a trust) or under a testamentary instrument (a will).   For this reason, and others, allowing wills to alter the governing law governing the meaning and effect of its provisions, such as separate trusts, can be helpful for the knowledgable drafter that wants to alter default provisions of the probate or trust code.  This is a change in the law that increases what lawyers can do for their clients within the context of a will and is a welcomed change.

Happy Drafting!

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Turn AVVO, Martindale-Hubbell, and SuperLawyers on Their Heads, and What Do You Get?


Let’s Do Something Great!

New England Estate Planning (“NEEP”), is, among other things, a state-specific automated drafting site for lawyers licensed in Maine, New Hampshire, and Massachusetts, and is now open for attorney registration.

While the site,, is not yet ready for attorney use, we are now open for registration and doing beta testing on the site. We hope to launch the site in phases starting on January 1, 2021.

Attorney registration is simple and can be done online in a few minutes. Please visit  We will confirm through your bar that you are an active member. If you would like additional passwords for staff, please let us know their names and email addresses, and we will provide you with separate passwords for their use.  If a staff member leaves your firm, please let us know so that we can cancel their access.

Most of the features of NEEP are free to attorneys and their staff.  A premium area will be carved out as a possible future place for the development of subscription-based forms.

To help NEEP succeed, we need your help.  Encourage attorneys that you know to register!  Forward the site link and this blog post.  The more lawyers that register and that eventually use NEEP, the greater the likelihood that NEEP can eventually attract enough subscribers to the directory to enable the site to be self-sufficient.  A populated directory also creates a resource for lawyers of businesses that are vetted by attorneys.  Once the directory is populated with businesses, you can continue to help NEEP by using and rating the businesses listed in the directory just as you would on Google, Yelp, or similar sites.  Attorney ratings are anonymous.  Lawyers can also pay for a subscription listing in the directory or subscribe to the premium service.

For as long as I can remember, lawyers have been the contestants in a never-ending beauty contest.  When I started practicing, that meant being listed in Martindale-Hubbell.  Their large handsome printed volumes were a standard set in many law offices.  Today,  thanks to the web, we have AVVO, Martindale-Hubbell, SuperLawyers,, LegalMatch, Findlaw, and the list goes on.  Most of them don’t ask you if you want to be listed.  You are just listed – it’s a right protected by the 1st Amendment. Most of them want you to pay them and not an insignificant amount either.   You might get some SEO juice out of the deal, but my bet is that these services are not making your phone ring off the hook, particularly if you are just getting started.  Don’t like your rating or reviews?  Too bad. You have to live with it.   Moreover, do any of them help you practice day-to-day?  Do they make your practice more efficient?  Provide you with tools?  Anything of substance?  Anyone? Anyone?

However, if you turn AVVO, Martindale-Hubbell, SuperLawyers, and all the rest of them, on their heads and, in the process, got some assistance with working faster, more efficiently, and with no added cost, what do you get?  NEEP, that’s what and, it’s not cheap, it’s free (mostly).  Anyway, that’s what we are trying to build, and it’s for you, the estate planning lawyer because we know that, someday you will need “that form” or “that resource” or that “professional referral” and when that day comes, we hope that you will find “that” on NEEP.

To learn more, please visit  Contact us at

Happy New Year!

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2020 SSI and Spousal Impoverishment Standards

The Centers for Medicare and Medicaid Services (CMS) released the Spousal Impoverishment Standards for 2020, which is available at


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Quality Control in Estate Planning – How to Run Your Firm like it is Made in Geneva

Quality Control in Estate Planning – How to Run Your Firm like it is Made in Geneva. 

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Estate Planning Systems and Checklists

How do you maintain constant quality control in your estate planning practice?  Of course,  as an attorney you pay attention to the details, but can you be assured that you always catch everything?  How about your staff?  You can’t have an efficient practice if you don’t delegate, so how do you ensure that they maintain the same level of diligence?   How about new staff?  It can take years to properly train a staff person.  How can you get them up and running quickly, but also ensure that when you aren’t watching over them, that they are assisting you in a way that does not undermine your practice?  And when new issues arise and are identified, how do you resolve them so that the issue or mistake does not reoccur?

The answer is you have to have a system (many, in fact), and you have to be checklist driven. Even then, mistakes of one sort or another will arise, but when you employ dedicated systems and checklists, at least you are functioning on a consistent basis.  That’s the first step in quality control and to making your practice run like clock-work. From how matters are opened, to how they are closed, cradle to grave, you simply have to have systems and checklists.  Sounds great – right?  Right. Sure, no problem.  You have lots of time to do all that administrative work, refine it, update it and expand it as you see new areas of concern.  Okay, I get it, no one, or very few of us, have that kind of time.  Not to worry, New England Estate Planning has your back.

New England Estate Planning (“NEEP”), is developing forms for lawyers in Maine, New Hampshire, and Massachusetts, including checklists, and workflows (systems) to help make that dream a reality for every estate planning attorney because let’s face it, it takes a lot of time (and a particular type of personality) to put that together. It also takes a lot of experience.

Can you use the forms that NEEP provides and modify them to suit your needs?  You bet.  Will NEEP forms likely need to be adjusted to do that?  As we all have our own particular practices and ways of doing things, you should expect that forms that NEEP will offer will be there as a starting place.  Can you contribute (share) forms for other lawyers to benefit from?  You bet.  That is one of the main goals of NEEP; to create a shareware site for lawyers.

Do you really need a system and/or checklists?  Can’t you just wing it?  To answer that question, you might want to do some additional reading. Many people have written about the power of systems and checklists.  The Power of A System (, by John H. Fisher, is one example.   The Checklist Manifesto ( by Atul Gawande is another.  The short answer is, of course, you can, but if you had a choice, why wouldn’t you?

Who uses checklists?  Pilots, surgeons, architects, financial advisors (I hope), and accountants.  Professionals that take their work and the outcome seriously.  Professionals that believe that the only number of acceptable mistakes over 1,000 transactions is zero. At my firm, Brennan & Rogers, PLLC (, we use checklists because what we do is serious work.  Admittedly, it feels like our systems and checklists are always changing.  It’s a challenge, however, that I fully embrace.  I suppose that is why they call it the practice of law, but,  recently, I have come to a place in my life’s practice where I simply don’t see the need for each legal generation to have to recreate that wheel from scratch.  Too much is at stake.  If you believe avoidable mistakes are acceptable, then don’t be checklist driven.  However, if you think that is crazy talk, then it is time to get serious.

If you are an attorney licensed in Maine, New Hampshire, and Massachusetts, you can pre-register with New England Estate Planning. It’s free to register.  It’s anonymous.  It likely won’t be the final solution for all your needs for estate planning, but as a shared base for many attorneys, it may provide you with a good foothold to start your way to a better practice, a more efficient practice, or a safer practice

Today we are attaching a sample deed review checklist. Deed Review Checklist. Maine

Happy Drafting and Happy Holidays!

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Maine’s New Elective Share – Does a Marriage Become More “Worthy” with Age?

Maine’s New Elective Share – Is a marriage more “worthy” with age? Maine’s new probate code thinks so.  What do you think?

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If a decedent leaves a will and the surviving spouse is not provided for, as in the case where the will postdates the marriage, or the spouse receives less than he or she thinks they are due, the spouse may elect to take against the will by filing a for an elective share.  This is an election to take a statutory amount instead of what the will provides.  Until the enactment of Maine’s Uniform Probate Code (MUPC) (Title 18-C of the Maine Revised Statutes), that amount was 1/3rd of the “augmented estate,” which was not always easy to calculate.  The enactment of the MUPC changed that rough justice and exchanged it for, what I will refer to as, “uncertain equality,” and as you might gather from the rest of this post, I am not a fan of this change in the law.
Under the new law, the amount of the elective share is 50% of the “marital-portion of the augmented estate” (under the former Title 18-A M.R.S § 2-201, et seq. it was 1/3rd of the “augmented estate”). The augmented estate under Title 18-C, to the extent provided in Sections 2-204, 2-205, 2-206, and 2-207, consists of the sum of the values of all property, whether real or personal; movable or immovable, tangible or intangible, wherever situated, that constitute: (1) the decedent’s net probate estate;  (2) the decedent’s nonprobate transfers to others; (3) the decedent’s nonprobate transfers to the surviving spouse; and (4) the surviving spouse’s property and nonprobate transfers to others.  However, and this is where uncertain equality raises its ugly mug, the value of the marital property portion of the augmented estate consists of the sum of the values of the 4 components of the augmented estate (above) multiplied by a percentage that starts out at 3% and increases to 100% only with 15 years or more of marriage.
This change in law reflects the adoption of the MUPC of the partnership theory of marriage (an economic theory) by gradually increasing the amount of the elective share based on the length of the marriage but does not adopt a minimum elective share amount.  That sounds all nice and well, but why then, inconsistently, does this same partnership theory not apply to the intestate share of a surviving spouse (that amount is not adjusted based on the length of a marriage) or the allowances and exemptions otherwise afforded to a spouse?  Taking it one step further, the estate tax exemptions do not base marital deductions on this theory (nor the ability to port over an unused exemption amount of a deceased spouse).  I find these inconsistencies troubling, though I do note that in the case of divorce, the length of a marriage may be a factor that is considered in the division of assets.   However, at death, we are not dealing with a failed marriage, so is grafting on the family law concept of a partnership theory really a fair comparison in the context of an estate?
I have a number of thoughts with regard to the new law, and though I haven’t arrived at my final opinion, I am not a fan of the elective share change. The old elective share was sometimes rough, leaving the surviving spouse with the right to receive less than what the current law might provide, but the increased amount under the new law only comes for well-established marriages – does time make a marriage more “worthy.”  Silver marriages (seniors getting married late in life) might well result in the surviving spouse receiving the shorter end of the financial stick.  Why should the law discriminate in this manner?  Is this disguised age-related discrimination?  Who does this really favor?  Who does this potentially hurt? Will this increase or decrease the complexity of advising clients that are recently married and interject ethical issues for the lawyer at a stage in the attorney-client relationship when there is no immediate conflict? If an individual considering a premarital agreement was on the fence about getting a premarital agreement and didn’t and gets married, are they more likely to seek an early divorce if they know that every year their spouse’s elective share interest in their estate is growing and will, after 15 years, reach 50%? Does this statute promote divorce?  I think it conceivably might.  It should, and probably will, encourage more premarital and post-marital agreements, but so few people are willing to come to the table with their spouse and lawyer and have these conversations, is this simply a trap for the unwary?  And what about the Department of Health and Human Services (DHHS)?  Many departments believe that they can enforce an elective share claim or treat it as a penalty if not made by a surviving spouse.  Does this change in the law “damage” prior Medicaid plans that factored in the risk of a 1/3 claim but not a 50% claim? Does it change how attorneys should think about the viability of wills with supplemental needs-based plans? I think I will take that glass of wine now; my head is spinning!
While I am not a fan of the new elective share, I am not a fan of the old one either.  Whenever the folks in office tinker with the clockwork, there are likely to be far-reaching implications. However, where the old law offered certainty, this law does not.  Where the old law offered a minimal level of protection, this law does not.  Whereas the old law was not inconsistent with the law in general as to decedents, in that it did not base its application on time (ie., the age of a marriage), this law does.
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Liability of nonprobate transferee – Trick or Treat?

Hold on to your candy kiddos; this is a stickup!

Title 18-C MRS Section 6-102(2) ( of Maine’s Uniform Probate Code introduces us to a new concept, nonprobate transferee liability.   The statute provides that, except as otherwise provided by statute, a transferee of a nonprobate transfer is subject to liability to any probate estate of the decedent for allowed claims against the decedent’s probate estate and statutory allowances to the decedent’s spouse and children to the extent the estate is insufficient to satisfy those claims and allowances.  In other words, if the probate estate is insolvent, creditors with allowed claims (claims that were timely presented and not denied) can seek recovery from assets passing outside of probate (trust, multi-party accounts, joint tenancy, beneficiary designation, etc.).  Boo- that’s scary!  Thankfully, the statute provides that the liability of a nonprobate transferee may not exceed the value of nonprobate transfers received or controlled by that transferee, but isn’t that stating the obvious?

This statute makes it important to still probate a will, even if there are no assets, because, in Maine, creditors have 4 months from the first date of the publication of notice to creditors (published in a local newspaper) to present their claims.  Creditors that fail to do so are forever barred from bringing a claim.  In the past, if the probate estate was insolvent, a revocable trust might be liable for claims, but the recipients of property otherwise passing outside of probate, such as assets jointly owned, were not similarly liable. Thanks to Title 18-C MRS 6-102(2), that is no longer the case.

Nonprobate transferees are liable for the insufficiency in the following order of priority:

  1. A transferee designated in the decedent’s will or any other governing instrument, as provided in the instrument;
  2. The trustee of a trust serving as the principal nonprobate instrument in the decedent’s estate plan as shown by its designation as devisee of the decedent’s residuary estate or by other facts or circumstances, to the extent of the value of the nonprobate transfer received or controlled; and
  3. Other nonprobate transferees, in proportion to the values, received.

The above default ordering rules also have the potential to cause trouble unless a will thoughtfully addresses who should bear the debts of an insolvent estate.

The increased statutory allowances (see Title 18-C MRS 2-401 -404) available  to a decedent’s spouse and children, which are often overlooked, may encourage a different type of claim relief where assets of an insolvent estate are encumbered.  In bankruptcy, what I am referring to is sometimes called a “cram down.”  I’ll return to this issue in a future article but, I’ll tell you this, it’s a trick and not a treat.

Happy Drafting!

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Maine’s Transfer on Death Deeds


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The enactment of the Maine Uniform Probate Code on September 1, 2019, brought with it Title 18-C M.R.S. § 6-401, et seq., the Uniform Real Property Transfer on Death Act, see, which authorizes the use of transfer on death deeds, sometimes called “Lady Bird Deeds”.  During life, a transfer on death deed is revocable even if the deed or another instrument contains a contrary provision.  The transfer is not nontestamentary (meaning, it is not subject to probate) but the same degree of capacity required to make a will is required to make or revoke a transfer on death deed.

The essential elements of a transfer on death deed are:

  1. The deed must contain the essential elements and formalities of a properly recordable inter vivos deed;
  2. The deed must state that the transfer to the designated beneficiary is to occur at the transferor’s death; and
  3. The deed must be recorded before the transferor’s death in the public records in the registry of deeds in the county where the property is located.

A transfer on death deed is effective without delivered to the beneficiary during the transferor’s life or consideration (ex. money or money’s worth).

During a transferor’s life, a transfer on death deed does not affect an interest or right of the transferor or any other owner, including the right to transfer or encumber the property.   Among other things, it also does not affect the transferor’s or designated beneficiary’s eligibility for any form of public assistance.  Effectively, it is as if nothing has happened because, in fact, nothing has.  Remember, a transfer on death deed is entirely revocable during life.

If you or a client create a transfer on death deed, should your power of attorney address the circumstances under which an agent (that is, the attorney in fact) under the power can revoke it? Probably.  While a transfer on death deed does not affect the transferor’s or designated beneficiary’s eligibility for any form of public assistance during the life of the transferor, that does not mean it is without future ramifications.  There will likely be many circumstances where complications with public assistance will arise because of the use of a transfer on death deed that might not have occurred had a more thoughtful vehicle been chosen – one that anticipated the need for future public assistance.

No doubt transfer on death deeds will reduce the number of future ancillary administrations that Maine practitioners will need to deal with and that the courts will have to process.

Happy Drafting!

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Maine’s Enactment of Uniform Probate Code

The Maine Uniform Probate Code (MUPC), Title 18-C M. R. S. § 1-101 et seq.,, with a delayed effective date of September 1, 2019 (see Section 8-301(1), H.P. 1881- L.D. 1535) pursuant to emergency legislation, revokes Title 18-A. Title 18-C brings with it significant changes to the law, including a new means of collection against nonprobate transferees in insolvent estates, automatic inflation adjustments, transfer on death deeds, multiple-party accounts, changes to the elective share, changes to the intestacy statute, the Maine Revised Uniform Fiduciary Access to Digital Assets Act,  just to  name a few, all of which will alter the preprobate process in some respects and probate practice in many respects.  Many practice forms will need to be revised, including but not limited to Wills, Powers of Attorney, and tangible memorandum bequest forms.   Stay tuned for a series of short articles on this blog that will explore the changes and what you should know.

Got Forms?  The legal wind direction has changed once again!

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Once it is launched, New England Estate Planning ( will host updated forms, which will be very helpful for the attorney that is licensed in Maine but does not regularly practice in Maine.   Access to forms on is limited to lawyers licensed to practice law in Maine, New Hampshire, and Massachusetts.

Happy Drafting!

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