If you are like many people right now, you are isolating yourself in self-quarantine at home. Recent news reports suggest that many of you are using this extra time at home to get your legal affairs in order and are turning more frequently to online tools to draft wills and other estate planning documents. You should be aware many of those options won’t work for Maine residents because of Maine legal requirements.
Under Maine law, an individual of sound mind who is 18 or older or legally emancipated may make a will. Generally, to be valid under Maine law, the will must be: (1) in writing; (2) signed by the person making it; and (3) signed by at least two other people, each of whom signed within a reasonable time after the person signed his or her will or that person’s acknowledgment of that signature or the will. And because it makes it more likely to survive a legal challenge, most wills are notarized.
Getting two individuals to witness a will’s execution, let alone someone to notarize the instrument, can be challenging in times of quarantine. (Legal services have been designated as “essential” and so are permitted to remain open, but regardless many people now, to avoid risks to themselves and others, understandably do not wish to visit a law office or other public place.) As of now, Maine does not allow for remote notarization; the notary public must be in the physical presence of the maker of the will (also known as the “testator”) and the witnesses. Thankfully, the law provides an alternative.
The easiest solution is to make what is called a “holographic” will. That means, simply, that the will is in the handwriting of its maker and signed. It need not be witnessed. When we prepare wills for clients here at Western Maine Law, we include other types of provisions, but for emergency needs many people can start with the statutory will Maine provides at http://legislature.maine.gov/statutes/18-C/title18-Csec2-517.html. As written, the statutory will requires witnesses as discussed above. But, if you simply copy the statutory will in your own handwriting, filling in the blanks as appropriate, and sign it, it should be valid under Maine law, even without witnesses. Once the pandemic passes, we can use your holographic will as a starting point to complete the will-making process.
With respect to other estate planning documents, there are fewer alternatives. Maine has adopted the Uniform Health Care Decisions Act, which empowers people to make Advance Health Care Directives, which incorporate both individual instructions for health care decisions (such as not wishing to have life prolonged if the person is in a persistent vegetative state) and the naming of a power of attorney for health care. Although, as with the statutory will, the form does not include all of the provisions that we recommend, Maine law provides a sample form at https://legislature.maine.gov/legis/statutes/18-C/title18-Csec5-805.html. The statute requires, however, that the power of attorney must be in writing and must be signed by the maker and two witnesses in person and not by electronic means. One can, however, execute a form like this once in a hospital, and in our experience the sample provided by MaineHealth is sufficient for most people’s needs, especially in emergency circumstances.
UPDATE: On April 8, Governor Mills issued an executive order allowing for remote notarization in Maine. The order is available at https://www.maine.gov/governor/mills/sites/maine.gov.governor.mills/files/inline-files/EO37.pdf. That means that things like powers of attorney and advance directives may be executed without the physical presence of witnesses and a notary. This does not alter the legality of holographic wills (wills in the testator’s handwriting).