COMPLEX WILL WITH TESTAMENTARY TRUST
(State of Maine)
[This template is designed for immediate customization and legal review. All bracketed fields must be completed or modified to fit the Testator’s specific circumstances. 18-C M.R.S. (Maine Uniform Probate Code) and 18-B M.R.S. (Maine Uniform Trust Code) control to the extent not expressly varied herein.]
TABLE OF CONTENTS
- Document Header
- Definitions
- Operative Provisions
3.1 Revocation of Prior Instruments
3.2 Family Information & Identification of Beneficiaries
3.3 Specific Devises & Bequests
3.4 Residuary Estate Disposition
3.5 Creation of Testamentary Trust
3.6 Funding & Allocation Rules - Representations & Warranties of Testator
- Covenants & Restrictions Applicable to Fiduciaries
- Default, Removal & Remedies
- Risk Allocation
7.1 Trustee Indemnification
7.2 Limitation of Liability to Trust Assets
7.3 Exculpatory Provisions - Dispute Resolution
- General Provisions
- Execution Block
- Self-Proving Affidavit (Optional but Recommended)
1. DOCUMENT HEADER
1.1 Title. Last Will and Testament of [FULL LEGAL NAME] (the “Testator”) Including the [SURNAME] Testamentary Trust (the “Trust”)
1.2 Effective Date. This instrument is executed on [DATE] (the “Execution Date”).
1.3 Jurisdiction & Governing Law. This Will shall be governed by and interpreted under the laws of the State of Maine, specifically 18-C M.R.S. for probate matters and 18-B M.R.S. for trust administration, except as expressly modified herein.
1.4 Recitals.
(a) The Testator is a domiciliary of [COUNTY], Maine, over the age of eighteen (18), of sound mind, and acting voluntarily.
(b) The Testator desires to dispose of all probate assets and establish a testamentary trust upon death according to the terms set forth below.
(c) Consideration for this instrument consists of the Testator’s mutual promises herein and the Testator’s desire to make an orderly disposition of the Testator’s estate.
2. DEFINITIONS
Unless the context clearly requires otherwise, capitalized terms have the meanings set forth below. Terms defined in one Section apply throughout this instrument.
“Accounting Period” – Each calendar year, or a shorter period ending upon termination of the Trust or change of Trustee.
“Beneficiaries” – Those persons or entities identified in Section 3 who are entitled to receive assets under this Will or beneficial interests under the Trust.
“Fiduciary” – Any Personal Representative, Trustee, Co-Trustee, or Successor Trustee acting under this instrument.
“Personal Representative” – The individual or institution appointed in Section 3.5.2 to administer the Testator’s probate estate.
“Primary Beneficiaries” – [LIST, e.g., the Testator’s children, “Child A,” “Child B,” and “Child C.”]
“Qualified Terminable Interest Property (QTIP) Share” – That portion of the Trust, if elected, which qualifies for the federal estate-tax marital deduction under I.R.C. § 2056(b)(7).
“Residuary Estate” – All property subject to the Testator’s testamentary disposition not otherwise specifically devised or bequeathed.
“Trust” – The testamentary trust created in Section 3.5, together with any sub-trusts.
[// GUIDANCE: Add, delete, or modify defined terms as appropriate; ensure each defined term is used consistently.]
3. OPERATIVE PROVISIONS
3.1 Revocation of Prior Instruments. The Testator hereby revokes all prior wills and codicils.
3.2 Family Information & Identification of Beneficiaries.
(a) Spouse. The Testator is presently married to [SPOUSE NAME] (“Spouse”).
(b) Children. The Testator has the following living children: [LIST].
(c) Omitted Issue. Any child hereafter born to or adopted by the Testator shall be included in the term “children” and “issue” unless expressly excluded.
3.3 Specific Devises & Bequests.
3.3.1 Real Property. I devise my real property located at [ADDRESS OR DESCRIPTION] to [BENEFICIARY OR TRUST].
3.3.2 Tangible Personal Property. I bequeath my tangible personal property in accordance with any written memorandum executed pursuant to 18-C M.R.S. § 2-513.
3.3.3 Pecuniary Bequests. I bequeath the following sums, free of trust and free of tax apportionment:
(a) $[AMOUNT] to [BENEFICIARY];
(b) $[AMOUNT] to [BENEFICIARY].
3.4 Residuary Estate Disposition. The Residuary Estate shall pour over to the Trust created in Section 3.5, to be held, administered, and distributed as provided therein.
3.5 Creation of Testamentary Trust.
3.5.1 Name; Separate Entity. Upon the Testator’s death, the “[SURNAME] Testamentary Trust” is hereby created as a separate legal entity.
3.5.2 Trustee Appointment. I appoint [PRIMARY TRUSTEE NAME] as initial Trustee. If [he/she/it] is unable or unwilling to serve, then [SUCCESSOR TRUSTEE NAME] shall serve. Bond is waived unless required by the Probate Court.
3.5.3 Beneficiaries of the Trust.
(a) Income Beneficiary. During the Spouse’s lifetime, the Trustee shall distribute all net income, at least annually, to the Spouse. The Trustee may distribute principal for the Spouse’s health, education, maintenance, or support (“HEMS”).
(b) Remainder Beneficiaries. Upon the Spouse’s death, the remaining Trust property shall be distributed per stirpes to the Primary Beneficiaries.
3.5.4 Trust Duration. The Trust shall terminate upon the earlier of (i) final distribution under 3.5.3(b); or (ii) twenty-one (21) years after the death of the last to die of the Testator’s descendants living at the Testator’s death, consistent with 18-B M.R.S. § 901 (Rule Against Perpetuities).
3.5.5 Discretionary Spray Authority. After the Spouse’s death, the Trustee may distribute income or principal among the Primary Beneficiaries in unequal shares for HEMS needs, with any undistributed balance remaining in further trust until the youngest Primary Beneficiary reaches age twenty-five (25).
3.5.6 Spendthrift Protection. To the maximum extent allowed by 18-B M.R.S. § 502, no beneficiary may anticipate, encumber, or voluntarily or involuntarily transfer any interest in the Trust before actual receipt.
3.5.7 Tax Provisions.
(a) Marital Deduction. The Trustee may, in the Trustee’s discretion, elect to treat any portion of the Trust as QTIP property.
(b) Generation-Skipping Transfer (GST) Tax. The Personal Representative is authorized to allocate the Testator’s GST exemption in the manner most tax-efficient.
3.5.8 Allocation of Receipts & Disbursements. Fiduciary accounting shall follow 18-B M.R.S. Article 6 unless the Trustee elects, in a writing retained with Trust records, to adopt alternate reasonable rules.
3.6 Funding & Allocation Rules.
(a) Pour-Over. Assets shall be transferred to the Trustee without delay.
(b) Non-Pro-Rata Funding. The Personal Representative may distribute assets in kind or in cash, without liability for equality of treatment among devisees, provided overall values are substantially equivalent.
4. REPRESENTATIONS & WARRANTIES OF TESTATOR
4.1 Capacity. The Testator represents that the Testator is of full age and sound mind.
4.2 No Undue Influence. The Testator warrants that this instrument is executed freely and voluntarily, without duress or undue influence.
4.3 Disclosure of Assets. The Testator has made full and fair disclosure of all known probate assets to the drafting attorney.
[// GUIDANCE: Although wills seldom include “representations,” including them can bolster later probate defense against will-contest allegations.]
5. COVENANTS & RESTRICTIONS APPLICABLE TO FIDUCIARIES
5.1 Fiduciary Standards. Each Fiduciary shall administer in good faith, in accordance with the purposes of the Trust, and with the care an ordinarily prudent person would exercise (18-B M.R.S. § 804).
5.2 Prudent Investor Rule. The Trustee shall diversify investments unless the Trustee reasonably determines that, because of special circumstances, the purposes of the Trust are better served without diversification.
5.3 Delegation. The Trustee may delegate investment and management functions pursuant to 18-B M.R.S. § 807, provided the Trustee exercises reasonable care in selecting the agent and periodically reviews the agent’s performance.
5.4 Compensation & Reimbursement. Fiduciaries are entitled to reasonable compensation and reimbursement for expenses properly incurred.
5.5 Accountings; Information.
(a) The Trustee shall provide annual written accountings to adult Beneficiaries and the Spouse.
(b) The Trustee shall furnish such additional information as any Beneficiary reasonably requests for the protection of the Beneficiary’s interest.
6. DEFAULT, REMOVAL & REMEDIES
6.1 Events of Default. Removal of a Fiduciary may be sought upon:
(a) Serious breach of trust;
(b) Lack of cooperation substantially impairing administration;
(c) Unfitness, unwillingness, or persistent failure to administer; or
(d) Substantial change in circumstances warranting removal in the best interests of the Beneficiaries.
6.2 Notice & Cure. Unless immediate action is required, a written notice specifying the alleged default shall be delivered to the Fiduciary, allowing thirty (30) days to cure before petitioning the Probate Court.
6.3 Remedies. The Probate Court may order any equitable remedy, including but not limited to surcharge, injunction, removal, or appointment of a Special Fiduciary.
7. RISK ALLOCATION
7.1 Trustee Indemnification. To the maximum extent permitted by law, the Trust shall indemnify the Trustee against claims, liabilities, and expenses (including reasonable attorney fees) arising from the Trustee’s good-faith administration, except to the extent caused by the Trustee’s willful misconduct or gross negligence.
7.2 Limitation of Liability to Trust Assets. All claims against the Trustee or Trust shall be satisfied solely from the Trust assets; no Fiduciary shall have personal liability, absent willful misconduct or gross negligence.
7.3 Exculpatory Provisions. A Fiduciary shall not be liable for any loss or depreciation in asset value resulting from the exercise of discretion in good faith and in accordance with this instrument.
8. DISPUTE RESOLUTION
8.1 Governing Law. All matters shall be adjudicated under Maine law.
8.2 Forum Selection. Exclusive jurisdiction lies with the [COUNTY] Probate Court of the State of Maine.
8.3 Arbitration. Arbitration is not available for probate and trust matters under current Maine practice; any dispute shall be resolved by the Probate Court.
8.4 Jury Waiver. Jury trials are not available in probate proceedings under 18-C M.R.S.; any fact issues shall be determined by the Probate Judge.
8.5 Injunctive Relief. The Probate Court may issue temporary restraining orders, preliminary injunctions, or other equitable relief to prevent waste or enforce Trust provisions.
9. GENERAL PROVISIONS
9.1 No Bond. No Fiduciary shall be required to furnish bond unless the Probate Court so orders.
9.2 Spendthrift & Creditor Protection. See Section 3.5.6.
9.3 Simultaneous Death. If any Beneficiary fails to survive the Testator by one hundred twenty (120) hours, that Beneficiary shall be deemed to have predeceased the Testator, unless contrary federal estate-tax consequences would result.
9.4 No-Contest Clause. Any Beneficiary who, directly or indirectly, contests or assists another in contesting this Will or the Trust shall forfeit all interests herein, and such interests shall pass as if that Beneficiary had predeceased the Testator.
9.5 Tax Allocation & Apportionment. All estate, inheritance, and similar transfer taxes attributable to probate assets shall be paid from the Residuary Estate, except as otherwise provided by beneficiary-designated assets or nonprobate transfers.
9.6 Digital Assets. The Personal Representative and Trustee have authority under 18-C M.R.S. § 10-104 to access, manage, and distribute the Testator’s digital assets.
9.7 Severability. If any provision is invalid or unenforceable, remaining provisions shall be given full effect consistent with the Testator’s intent.
9.8 Headings. Headings are for convenience only and shall not affect interpretation.
9.9 Integration. This instrument constitutes the Testator’s complete testamentary plan and supersedes all prior expressions of testamentary intent.
9.10 Counterparts & Electronic Signatures. This Will may be executed in counterparts; a facsimile, PDF, or electronic signature shall be deemed an original for all purposes.
[// GUIDANCE: Maine formally permits “electronic wills” only under specific statutory conditions not yet enacted; retain wet-ink signatures for now.]
10. EXECUTION BLOCK
IN WITNESS WHEREOF, I, [FULL LEGAL NAME], the Testator, have hereunto set my hand on the Execution Date first written above, declaring this instrument to be my Last Will and Testament.
[TESTATOR SIGNATURE]
[FULL LEGAL NAME], Testator
ATTESTATION CLAUSE
We, the undersigned witnesses, certify that on the Execution Date, the Testator declared to us that this instrument is the Testator’s Last Will and Testament, and that the Testator, in our presence, signed it willingly (or expressly directed another to sign for the Testator), and that each of us, in the presence of the Testator and each other, hereby signs our name as witness. The Testator appeared to us to be of sound mind and over eighteen (18) years of age and not under duress or undue influence.
Witness 1: ________
Name: [PRINT]
Address: [ADDRESS]
Witness 2: ________
Name: [PRINT]
Address: [ADDRESS]
[// GUIDANCE: Maine requires two credible witnesses. Consider using three if any witness may later be unavailable.]
11. SELF-PROVING AFFIDAVIT (OPTIONAL BUT RECOMMENDED)
State of Maine
County of [COUNTY]
We, [TESTATOR NAME], [WITNESS 1 NAME], and [WITNESS 2 NAME], being first duly sworn, do hereby declare to the undersigned authority that the Testator signed and executed the foregoing instrument as the Testator’s Last Will and Testament, that the Testator signed willingly (or expressly directed another to sign for the Testator), and that each witness, in the presence and hearing of the Testator, and in the presence of each other, signed the Will as witness. The Testator was at that time eighteen (18) years of age or older, of sound mind, and under no constraint or undue influence.
[TESTATOR NAME], Testator
[WITNESS 1 NAME], Witness
[WITNESS 2 NAME], Witness
Subscribed, sworn to, and acknowledged before me by [TESTATOR NAME], the Testator, and subscribed and sworn to before me by [WITNESS 1 NAME] and [WITNESS 2 NAME], witnesses, this ___ day of ____, 20__.
Notary Public
Printed Name: ___
My Commission Expires: ______
[// GUIDANCE: Attach any dispositive memoranda, separate trustee acceptance, or beneficiary designation schedules as exhibits if desired. Ensure all beneficiary designations on non-probate assets (life insurance, retirement accounts) are coordinated with this testamentary plan.]