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When a Family Member Dies Without Assets

                                   By Rudman Winchell Attorney Tracy Collins

 

My Uncle Spike had two claims to fame: He was a nationally recognized ghost hunter, and he was the Yukon Cornelius of the Penobscot River, prospecting for gold and regaling the locals and passers-through with his tales of adventure and fortune. (I am not making this up.) A millionaire, however, he was not. Bless his heart, when he died in December, Spike had maybe 900 clams to his name in a bank in Lincoln and no will. Not enough to buy a haunted house, but not pocket change, either.

What do you do when a loved one dies without significant assets?

Maine makes it easy. Right now, if a Mainer dies without a will with an estate smaller than $20,000, an heir can fill out what’s called a Small Estate Affidavit. (In July, changes to Maine probate law will take effect that bump up the value of a “small estate” from $20,000 and less to $40,000 and less.)

How do you know if you’re the “heir” who gets to fill out the affidavit? Sometimes, it’s easy to figure that out. For example, if Uncle Spike had a will and left his clams to me, I’m the heir. Sometimes, it’s trickier, like when there’s no will and multiple remaining family members who do not agree about how to proceed. (Pro tip: Assume your family won’t want to think about how to divvy up the clams when they’re trying to figure out how to live life without you. Ask a lawyer to draft you a will telling them what to do. Comparing the stress of deciding where to go out to dinner and the stress of managing money while mourning, it’s a no-brainer.) If it’s not clear who the heir is or if there’s disagreement, ask a lawyer.

In the affidavit, heirs swear to a few basic facts:

  • The heir’s name
  • The heir’s representation that the facts within the affidavit are true based on his or her personal knowledge pursuant to Maine law
  • The name of the deceased loved one, his or her city or town of residence, his or her birthdate
  • That at least thirty (30) days have passed since the deceased loved one’s death
  • That the estate does not exceed a value of $20,000
  • That no one has asked that the probate court appoint them as personal representative, which is a step involved in more formal proceedings
  • That the heir is entitled to the estate and the basis for that entitlement
  • Details about the asset(s); for example, my family would have included a sentence indicating the name of Spike’s bank and his account number

18-A M.R.S.A. §§ 3-1201, 3-1202. The heir can take the affidavit to any attorney or notary public and swear to its truth, and then take it to the bank with a death certificate. Financial institutions should accept the affidavit as sufficient to allow them to release the assets.

Naturally, you cynics of Maine, your next question is: What’s to stop someone from falsifying an affidavit and cleaning out an account, with no one the wiser? Mostly, the same thing that stops you from pocketing a Twix in line at the grocery store. God, karma, morality, setting a good example for the youth of America — at the very least, the fear of steep fines and prison time. Turns out, Maine judges and jurors don’t much like theft or forgery, especially when those thieves are taking advantage of family and friends who trust them. Also, your magic affidavit is a paper airplane without a death certificate, and procuring one of those for a living person is not as easy as it sounds.

Thankfully, Maine law gives us this tool to quickly and easily sort out an estate in a case like Uncle Spike’s, so we can focus our energy on whether the yearly memorial will involve a ghost hunt or a dig for gold.

Disclaimer: These materials have been prepared by Rudman Winchell for educational purposes only. They are not legal advice. The transmission of this information to you is not intended to create a lawyer-client relationship. Readers should not act upon this information without seeking legal counsel. Do not send any confidential or private information to Rudman Winchell until a formal lawyer-client relationship has been established in writing.

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