A Letter From The F.A.A.? Call An Attorney.

A friend called me up the other day, because he had received a letter from the Federal Aviation Administration. Yikes. The letter started out scary: “Personnel from this office are investigating a complaint of a low-flying aircraft . . .”, and gave some specifics about the alleged incident.

The meat of the letter included an invitation to either clear it all up, or self incriminate:

We would appreciate receiving any evidence or statements you might care to disclose regarding these events within 5 days of receipt of this letter. Any discussion and/or written statements furnished by you will be given consideration in our investigation. If we do not hear from you within the specified time, our report will be processed without the benefit of your statement.

The FAA has had, since about 2015, a new “compliance policy” orientation. That is, they want cooperation from pilots when there has been an alleged “deviation from regulatory standards”, so they can gently guide the pilot back to compliance or competence or obedience, or whatever.

That means they’re less about enforcement and punishment, and more about rehabilitation, supposedly. That’s not to say they don’t still pursue certificate and civil and even criminal penalties. They want cooperation, but the danger is that one can say incriminating things while being cooperative. Clamming up, and referring them to a lawyer just pushes them toward the more punitive approach; blabbing too much to be cooperative can be a big problem. One must thread the needle.

I’m sure you are aware that the rules are that a pilot maintain at least 500 feet clearance from people and buildings and vessels when flying. The exception is when one intends to take off, or to land.

 

Some salient regs:

 

  • § 91.13   Careless or reckless operation.

(a) Aircraft operations for the purpose of air navigation. No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.

 

 

  • § 91.115   Right-of-way rules: Water operations.

(a) General. Each person operating an aircraft on the water shall, insofar as possible, keep clear of all vessels and avoid impeding their navigation, and shall give way to any vessel or other aircraft that is given the right-of-way by any rule of this section.

(b) Crossing. When aircraft, or an aircraft and a vessel, are on crossing courses, the aircraft or vessel to the other’s right has the right-of-way.

(c) Approaching head-on. When aircraft, or an aircraft and a vessel, are approaching head-on, or nearly so, each shall alter its course to the right to keep well clear.

(d) Overtaking. Each aircraft or vessel that is being overtaken has the right-of-way, and the one overtaking shall alter course to keep well clear.

(e) Special circumstances. When aircraft, or an aircraft and a vessel, approach so as to involve risk of collision, each aircraft or vessel shall proceed with careful regard to existing circumstances, including the limitations of the respective craft.

 

  • § 91.119   Minimum safe altitudes: General.

Except when necessary for takeoff or landing, no person may operate an aircraft below the following altitudes:

(a) Anywhere. An altitude allowing, if a power unit fails, an emergency landing without undue hazard to persons or property on the surface.

(b) Over congested areas. Over any congested area of a city, town, or settlement, or over any open air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft.

(c) Over other than congested areas. An altitude of 500 feet above the surface, except over open water or sparsely populated areas. In those cases, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure.

(d) Helicopters, powered parachutes, and weight-shift-control aircraft. If the operation is conducted without hazard to persons or property on the surface—

(1) A helicopter may be operated at less than the minimums prescribed in paragraph (b) or (c) of this section, provided each person operating the helicopter complies with any routes or altitudes specifically prescribed for helicopters by the FAA; and

(2) A powered parachute or weight-shift-control aircraft may be operated at less than the minimums prescribed in paragraph (c) of this section.

 

Notice that a “congested area” requires a greater clearance.

 

The FAA does not define congested area in the FARs or in the Aeronautical Information Manual. Interpretations in low-flight enforcement cases are not particularly helpful to determine a precise definition. Rulings are decided on a case-by-case basis, and “congested” has been interpreted rather broadly. Off the shoreline is likely not congested, while over sunbathers on the beach would, I think, be seen as congested. In Administrator v. Johnson 3 N.T.S.B. 363 (1977), a shopping plaza during a time of day when there were very few people about was held to be an inherently congested area. Additionally, in a F.A.A. issued memorandum, Assistant Chief Counsel for Regulations Rebecca MacPherson reasoned that while the presence or absence of people was not relevant in Johnson, a large number of people render an area congested. Fly at least a thousand feet above a beach, unless you intend to land. If you get a letter from the F.A.A., call an attorney.

David Packard to Present at MSBA Summer Meeting

Attorney David Packard will be presenting at the Maine State Bar Association Summer Meeting as part of a panel titled Mobile Device Forensics.  As a Cellebrite Certified Physical Examiner, David can extract data from a mobile device through a forensically sound process, making the device’s contents more easily searchable and exportable in a format that can be used at trial. Evidence contained on mobile devices is being used increasingly in the legal world—particularly at trial or during settlement negotiations—and it is important for lawyers and clients alike to understand how this valuable type of evidence can be properly and effectively used to support their positions. David will be presenting with Justice William Stokes and Judge Charles Dow in a panel about emerging issues in mobile device forensics on June 23, 2017 at Sugarloaf in Carrabassett Valley, Maine.

Passing Real Estate to the Next Generation: Is Adding Your Child to the Deed a Quick Fix?

When planning for the future, I often hear property owners ask: Do I really need to create an entire estate plan, or can I just handle my real estate by adding my child to the deed? Adding a child to a deed may seem like a simple way to pass property to the next generation, but it can also lead to many unintended and unwanted complications. A comprehensive estate plan is often a more straightforward and, ultimately simpler, way to handle titled property.

When someone wants to add a child to a deed in order to pass the titled property to that child, the child will need to be added as a joint tenant. A joint tenant has rights of survivorship, which means that when one joint tenant dies, the property passes automatically to the other joint tenant(s) outside of probate. Sounds pretty simple, right? Unfortunately, this option is often only minimally advantageous in Maine (i.e., probate is generally simple and relatively inexpensive in Maine, there are other ways to achieve better privacy, and this option does nothing to avoid estate taxes) and can result in a number of unwanted challenges.

First, any joint tenant may sever the joint tenancy and sell his or her interest in the property to whomever he or she may wish. Do you really want your child to have the flexibility to sell his or her interest in your home while you are still living in it? Or to sell an interest in your investment property while you are still reaping the income from it? Even if you trust that your child will not sell his or her interest in the real estate, what about his or her creditors (ones you may or may not know about)? As a joint tenant, his or her creditors have the ability to attack your child’s interest in the property.

Second, your child could complicate or interfere with decisions you want to make regarding the property. For example, if you wanted to sell or refinance the property or place it in a business or trust, your child’s consent and signature would be required for all related documents in order to transfer or refinance the entire property. The requirement of your child’s signature could significantly limit what you are able to do with your property.

Third, if one joint tenant becomes incapacitated, the court may require that a conservatorship protect the interest of that joint tenant, which can lead to unintended complications. For example, if the parent becomes incapacitated, a conservator may challenge actions of the child or expect a child to cover a certain portion of the expenses, which may not have been intended by the parent(s). Likewise, if the child becomes incapacitated, the conservator could challenge the actions the parents are taking regarding their own home or their investment property, even if the intent is for the parents to receive all the benefits such as rental income from the property during their lives.

Fourth, if the property generates income, the income tax obligations will be split among the owners according to their interests. Therefore, if the parents own income-generating property and want to continue to reap the benefits of all of the income for the remainder of their lives, the child as a joint tenant is nonetheless on the hook for income taxes for his or her interest in the property.

Fifth, adding your child to a deed raises issues around gift and estate taxes. Once the interest deeded to your child (together with any other gifts for that year) exceeds the $14,000 annual exclusion, you will need to file a Form 709 indicating the value of the gift in excess of the annual exclusion. This amount will count against the total amount you are able to gift before paying gift and estate taxes. Moreover, a child will take his or her interest as a joint tenant with the same basis the parent(s) had in that interest. As the other joint tenants pass, the child will receive a step up in basis only on the interests that pass as a result of the death of the other joint tenants. The step up on each interest will be equal to the value of that interest on the date of the other joint tenant’s death. On the other hand, when the child is not added as a joint tenant, allowing the property to pass at the time of death, the child takes the entire property with a step up in basis equal to the value of the property on the date of death. This difference in basis could have a significant impact on the amount of taxes owed by your child if he or she decides to sell the property.

Sixth, because one’s Last Will and Testament does not have any impact on property held in joint tenancy (because the property automatically passes to the other joint tenants on the deed no matter what any joint tenant’s Will may state), you run the risk of unintentionally disinheriting other individuals or creating a disparity in inheritance where none was intended. This is especially true when one experiences a major life change such as divorce, the birth or adoption of a child, or a marriage after creation of the joint tenancy.

Ultimately, creating a joint tenancy can be an easy way to transfer property on death while avoiding probate with respect to that particular property. However, it is important to be informed about the issues that can arise when adding a child to a deed. An attorney can help you develop a plan that will pass your property according to your wishes.

Tamlyn M. Frederick is an estate planning attorney at Frederick, Quinlan & Tupper in Portland, Maine.

Commercial Tenants: Understanding the Terms of Your Lease

Before you enter into a commercial lease, as a tenant it is important to understand the different types of commercial leases and the obligations required of you under each. Your periodic payments and other obligations could differ drastically depending on the type of lease you sign. Therefore, as you are negotiating the terms, be sure you understand how the particular type of lease you are dealing with works and how it will impact your overall expenses.

  1. Gross Lease (Full Service)
    Under the terms of a full service lease, the rental rate of the property covers the operating expenses owed on the property including property maintenance, utilities, and property taxes. However, the agreement will typically allow the landlord to pass on subsequent increases in such operating expenses to the tenants in the form of an increased rental rate. This type of lease is most often used in the case of office space.
  2. Modified Gross
    A modified gross lease is similar to a full service lease, but it modifies the full service lease to require the tenant to cover some operating expenses in addition to the monthly rental rate. The lease will specify which expenses shall be borne by the tenant.
  3. Triple Net
    A triple net lease is one in which the rental rate does not include operating expenses such as property maintenance, utilities, insurance, and property taxes. Tenants can expect to be billed on a monthly basis for all such expenses over and above the stated rental rate for the space.
  4. Percentage Lease
    Under a percentage lease, the amount the tenant will pay is partly dependent on the amount of revenue earned by the business tenant. Therefore, the tenant will pay the monthly rental rate plus a set percentage of revenue in addition to the base amount.

Although renting commercial space may seem straightforward, distribution of expenses can become confusing, especially where the landlord agrees to cover some expenses and not others or when the landlord reserves the right to pass on increases in operating expenses to the tenant. In addition to expenses, there is a whole host of issues to deal with including: the level of insurance required, the handling of improvements and changes, restrictions on signage, restrictions on use, responsibility for repairs, and termination, to list a few. An attorney can help you negotiate the terms of your lease and make sure you understand the obligations you are agreeing to when dealing with your landlord.

The Legal Requirements for Amateur-Built Aircraft

Experimental, or amateur-built, or homebuilt aircraft have become, in many cases, extraordinarily sophisticated machines; some rival or exceed the comfort, speed, range, and performance specifications of many factory-built airplanes. Consider the world’s best-selling general aviation airplane, the Cirrus SR-22: it got its start in the 1980s as the VK-30, a kit plane marketed to the then-new and growing kit plane market. Today, the ancestor of that composite kit plane is a factory-built, high performance beauty that starts at $520,000. One big reason that amateur built planes have become so popular (the fellow at the Experimental Aircraft Association told me 35,000-40,000 homebuilts are registered and presumably flying today) is because one can get a terrific plane for a fraction of the cost of a new one. After all, the labor is free(?) and the cost of development, testing, and liability has been sharply reduced. Given that folks routinely have access to tools and equipment and knowledge that was not so readily available a generation ago, one can reasonably expect to build a plane at home, in a year or less.

The rules and regulations regarding rights and responsibilities (couldn’t help it) that a home builder must be familiar with are outlined in the FAA Advisory Circular AC 20-27G. The Advisory Circular does not have the weight of law, but Title 14, Code of Federal Regulations (14 CFR) part 21, Certification Procedures for Products and Parts, § 21.191(g) Experimental certificates does. The meat of the matter is that a builder(s) must complete at least 51% of the aircraft, for their own education or recreation. Before a builder schedules an inspection, he or she must register the plane, because the completed plane will need the N-number clearly marked typically in 12” letters and numbers, two-thirds as wide as they are high, spaced no less than one fourth the character width . . . and so on. For this, a builder will need to provide proof of ownership and an affidavit certifying that the aircraft was built from parts or a kit. File form 8050-1 to register. When that’s done, and the plane is all but perfect, the builder can schedule an inspection. The FAA has airworthiness inspectors who are often booked a ways out, and there are designated airworthiness representatives who are deemed by the FAA to be qualified to issue airworthiness certificates. In my case, four gentlemen went over my building logs, particularly for the engine, before they came to the site and poked over 164SH for four hours. After that, I was issued an airworthiness certificate and a repairman’s certificate. The repairman’s certificate allowed me to maintain the plane, which represents a considerable cost savings in the long run.

If you or someone you know is considering building or purchasing a plane, feel free to sit down with me over a cup of coffee, and I’ll help you with the many factors to consider.

Stan Tupper is a private pilot with a seaplane rating. He built N164SH for a private party.

Reletting Versus Subleasing: What’s the Difference?

When you enter into a lease agreement— whether commercial or residential— it is important to understand the differences between reletting and subleasing.  Many lease agreements are very restrictive about either reletting or subleasing, but they do sometimes allow for such arrangements with the written consent of the landlord.  If you are considering entering into a lease that you may ultimately need to terminate before the agreement’s expiration, be aware that subleasing and subletting often present major challenges.   In the event that either reletting or subleasing is permitted, it is important to understand the effects and potential consequences of each.

Reletting involves early cancellation of the original lease, releasing the original tenant from the agreement’s terms and obligations, and the landlord enters into an entirely new agreement with a new tenant.  This scenario is most common where the original tenant and landlord enter into a mutual agreement to terminate the original lease early.  The original tenant often remains responsible for rent and other terms of the agreement until the premises are relet.  However, the landlord is required to make diligent efforts to find a new tenant for the property.  Once the new tenant enters into an agreement to rent the property, the original tenant is not responsible for any unpaid rent and is not bound by any other terms or conditions of the original lease.   The new tenant is solely liable to the landlord under the new lease.

Subleasing, on the other hand, occurs when the original tenant— rather than the landlord— rents a portion of, or all of, the property to another.  Subleasing almost always requires the written consent of the landlord, according to the terms of the original lease.  When a sublease is permitted, the sublessee is responsible for paying rent set forth in the sublease and complying with the terms of the original lease, but the original tenant remains on the hook for any rent that goes unpaid by the sublessee and for other terms and conditions of the original lease.   Therefore, if the sublessee fails to pay, the original tenant must pay.  Likewise, if the sublessee causes damage to the property, the original tenant remains liable for damage not repaired by the sublessee.

The world of reletting and subleasing can get complex quickly, whether from the landlord’s perspective or the tenant’s perspective.  It is in your best interest to seek legal counsel from your attorney to protect your best interests if you are considering an arrangement involving reletting or subleasing.

Marijuana in Maine

On January 30th, 2017, it became legal under Maine state law for persons over the age of 21 to consume marijuana products on private property and begin cultivation for personal use. The legislature also became responsible for creating the regulatory structure under which the retail sale of marijuana products will take place, based on the framework and guidelines set forth by the referendum passed by the citizens of Maine.

The initiative sets out a framework for six main types of licenses related to cultivation, production, and sales of marijuana: a retail store license, a Cultivation Facility license, a Products Manufacturing license, a Testing Facility license, a Social Club license, and Occupational licenses. Except for the Testing Facility license, a person or entity may hold more than one kind of license, but each must be applied for separately and can be subject to different rules, requirements, and fees. Every individual who has an interest in or works for a retail marijuana store, cultivation facility, manufacturer, or testing facility will be required to undergo a criminal background check and hold an Occupational license.

There is no certainty over what the regulatory framework will eventually look like since the legislature has until February 2018 to create it. However, as laid out by the referendum, certain entities and individuals will be given preferences with respect to the granting of licenses and those with preference will be considered before those without preference. For example, preference will be given to caregivers who have three or more patients and have been a caregiver for two or more years. Additionally, entities may hold more than one kind of license but will only be given preference for one license in each class of license for which the entity applies. For instance, an entity may apply for two retail store licenses and a social club license, but can only use its preferential standing for one of the retail store licenses and the social club license, not all three. Additionally, licenses will only be given to those without preference once there are no other applicants for that type of license with preference left.

With respect to timing and implementation, the legislature has already amended the referendum as passed by the citizens. It passed an amendment allowing twelve months (instead of the referendum’s original nine months) to create the regulatory framework for retail sales of marijuana and marijuana products and to close a loophole that inadvertently removed penalties for people under the age of 21 using or cultivating marijuana. We will be paying close attention to not only the bills and amendments put forward by the Maine legislature and how they may affect local licensing and business operations but also any national developments under President Trump or newly appointed Attorney General Sessions in anticipation of the opening of the retail market.

While growing, selling, and using marijuana, either medical or for personal use, is legal in Maine, it is prohibited under federal law. The federal government classifies marijuana as a Class I substance, carrying the strictest penalties for possession and sales, and may at any time prosecute such possession or sale.

Aviation Insurance Primer

Do you own or rent a plane for pleasure flying? Insurance can be expensive . . . until you need it. Consider the fellow who hand-propped his 172 with no one in the cockpit. With the throttle set too high, and apparently insufficient brakes, the Cessna made off on its own, and prop-chopped up a hangar, and the Baron inside. He was lucky the damage wasn’t much greater, and so the industry-standard million dollar coverage limit was enough to make everyone whole again.

One can purchase aviation insurance directly from an underwriter, a broker, or an agent. The differences are important. First, an agent is typically either captive or independent. A captive agent works directly for one company, and an independent works typically, for a few. They need not be licensed, and because they can offer a limited choice, one would have to query several agents to effectively, and efficiently shop for coverage. A Broker is arguably a more professional point of contact. Brokers are licensed, and have training, particularly in regard to helping clients select the right amount of coverage. The Aircraft Owners and Pilots Association (AOPA) acts as a broker for its members. Finally, a direct underwriter such as Avemco allows a pilot to buy a policy without a middleman.

When shopping for a policy, it’s a good idea to ask for a sample policy. The “typical” policy covers everything save enumerated exceptions, but ambiguity creeps in. One would think that the “boilerplate” policy would have worked out the grey areas of interpretation by now, but that’s not the case.

Consider United States Aviation Underwriters v. Fitchburg-Leominster, 42 F.3d 84 (1st Cir. Mass. 1994), where “both parties earnestly contend that [the] insurance policy is clear, unambiguous, with a fair and reasonable meaning exactly opposite to that advanced by their adversary.” The question was whether the woman who was injured when she walked into the spinning propeller was a “passenger” or not. The difference is that of coverage to a $100,000 limit, or a $1,000,000 limit.

In any case, it’s likely a good idea to ask your friendly aviation lawyer to review the contract, and explain the terms and exclusions.

Tax Treatment of Gains on Different Types of Residential Real Estate

The tax consequences related to the sale of a residential property depend largely on the characterization of the property. For example, the sale of one’s principal residence is treated differently than other types of residential real estate. Likewise, investment properties or vacation homes held for more than a year are treated more favorably than such properties held for less than a year. Whether you are considering entering the rental market, flipping homes, or selling your principal residence, it is important to understand how each will be taxed when it is time to sell.

Primary Residence

When you sell your principal residence, you may be able to exclude from taxation up to $250,000 in gains if you are single, or $500,000 if you are married, so long as you have both owned and lived in the property as your principal residence for two out of the prior five years. This is not a one-time exclusion. It can be used over and over on different properties, so long as the two-year requirements are met each time. However, you can only have one principal residence at a time and any gains over the applicable exclusion amount will be taxed at capital gains rates. If you do not meet the two-year test for both use and ownership, the entire gain from the sale of your primary residence will be taxed at capital gains rates. It is important to note, though, that there are some exceptions to this general rule where you may qualify for a partial exclusion even if you do not meet the two-year tests.

Residential Rental Property

Rental properties add another wrinkle that differentiates them from other types of residential properties. An owner is entitled to depreciate the value of the property on his or her income taxes over the course of 27 ½ years. For example, if you buy a rental property for $275,000, you can depreciate the property at $10,000 per year for 27 ½ years such that the tax basis becomes $0. If you then sell the property for $400,000 after having depreciated the entire value of the property, you will be required to pay the capital gains rate on the $120,000 gain realized from the sale of the property and also a maximum of 25 percent (an attractive rate to individuals in higher tax brackets) on the $275,000 that was depreciated over the years.

Other Residential Property: Anything from the Vacation Home to the Fixer Upper

For all other residential property that is not your primary residence— whether it is a vacation home or a fixer upper—if you have owned the property for more than a year, you must pay tax on any profit at the capital gains rate. However, if you have not owned the property for more than a year at the time of the sale, the profit is taxed at ordinary rates.

Although taxes may not be the decisive factor when selling a piece of property, they are an important consideration since they could significantly impact the amount of money you actually collect from a particular transaction. Therefore, when making decisions to buy or sell real estate, an attorney or tax advisor can provide guidance about any timing issues and the associated tax burdens.

You Developed an Estate Plan but You Experienced a Major Life Change. Do You Need to Change Your Will?

You’ve done your homework and developed an estate plan. But then you have a major life change—a divorce, a marriage, or the birth or adoption of a child. What should you do next? It is advisable to alter your will in accordance with such a change for two major reasons. First, such an event will likely change the way you want your assets dealt with under your will. Second, even if you still wish for your will to function in the same manner as previously set forth in your will, the default rules in the Maine Probate Code may operate to alter the way your estate is administered due such a change.

What Is the Effect of a Marriage on a Pre-Existing Will?

If a decedent fails to provide for his or her spouse who married the decedent after the execution of the will, the default rules in the Maine Probate Code will impact the estate plan as follows: the surviving spouse will be entitled to the share of the estate that he or she would have received if the decedent had left no will, unless it is apparent from the will that the omission was intentional or it is clear that the decedent intentionally, in lieu of provisions in the will, provided for the surviving spouse exclusively outside the will. In other words, absent clear intent to exclude the surviving spouse from the will, the default rules of intestate succession provided by the Maine Probate Code will govern what the surviving spouse is entitled to.

The share of an estate to which a surviving spouse is entitled under the rules of intestate succession depends, in part, on who else has survived the decedent. If there are no issue (i.e., children, grandchildren, etc.) or parents surviving the decedent, the spouse takes the entire estate. If the decedent is survived by parents, the spouse receives the first $50,000 plus one-half of the remaining balance of the intestate estate. If there are surviving issue, the spouse’s share depends on whether the decedent’s issue are also issue of the surviving spouse or not. When the issue of the decedent are also all issue of the surviving spouse, the surviving spouse receives the first $50,000 plus one-half of the remaining amount of the intestate estate. On the other hand, when one or more of the decedent’s surviving issue are not also issue of the spouse, the spouse receives one-half of the intestate estate.

Because a different scheme is often desired than the default rules under intestate succession with respect to a spouse, many clients will decide to amend a will in the event of a marriage. Additionally, it is important to consider desired changes to beneficiary designations after a marriage to deal with assets that will pass outside the will.

What is the Effect of a Divorce After the Execution of a Will?

When an individual passes after divorcing but does not update a will that was executed prior to the divorce, the will shall be read as though the surviving former spouse predeceased the decedent. Assets will past to the other beneficiaries as provided for in the will. However, there are occasional instances where an individual still wishes for his or her estate plan to still include the ex-spouse. If this is the case, the plan should be so updated to reflect these wishes despite the divorce.

Although the default rules of the Maine Probate Code function to remove an ex-spouse from a will, assets with beneficiary designations are treated differently. If an individual does not intend for the ex-spouse previously named a beneficiary during the marriage on various assets, he or she needs to be sure to make those changes. Otherwise, the beneficiary designation of the ex-spouse made during the marriage could stand and the ex-spouse would be entitled to the assets. Therefore, it is important to revisit beneficiary designations promptly in the event of divorce.

What is the Effect of a Child Born or Adopted After the Execution of a Will?

If a decedent fails to provide by will for any of his or her children born or adopted after his or her will is executed, that child is entitled to the value equal to what he or she would receive had the decedent died without a will. There are, however, a few exceptions where it appears the child was intentionally left out of the will, it appears that when the will was executed the decedent had at least one child and devised substantially all of his or her estate to the other parent of the later born or adopted child, or the decedent provided for the child through a transfer outside of the will with the intent that the transfer be in place of including the child in the will.

When a decedent does not leave a will, each child is entitled to the part of the estate not passing to the surviving spouse, or the entire estate if there is no surviving spouse. The part of the estate passing to such children shall be divided per capita at each generation which means that the part of the estate in issue is divided into the number of shares of surviving children and previously deceased children of the decedent (or if no surviving children, to the nearest degree of kinship with surviving heirs). Each surviving child is entitled to one share. Then, the remaining shares for the any of the deceased children are combined and divided equally among the children of the decedent’s predeceased children.

Conclusion

Because the Maine Probate Code can function to alter your estate plan upon the occurrence of a major life event, it is important to seek the advice of an attorney in making adjustments to your will and other related documents. In fact, you should revisit all of your documents that deal with distribution of assets upon your death in order to ensure your wishes are followed.

 

Tamlyn Frederick is an attorney in Portland, Maine who practices in the field of estate planning.