What Types of Deeds Are Recognized in Maine?
A Maine property owner can transfer real estate or an interest in real estate by recording a deed.1 Maine law recognizes numerous types of deeds—each with its own function.2 Three of the most popular deed forms for transferring real estate during the owner’s life are warranty deeds, quitclaim deeds with covenant, and quitclaim deeds without covenant. The principal distinction between the three forms is the warranty of title each offers.
Maine Warranty Deed Form
A Maine warranty deed provides the greatest warranty of title among Maine’s deed forms. Warranty of title is the current owner’s guarantee that the new owner will receive a valid, clear title to the property. 3 A warranty deed’s warranty extends to the property’s entire history. Any potential title problems not expressly excluded in the deed are covered by the warranty.
A property owner who signs a warranty deed with Maine’s statutory warranty deed language promises that when the new owner receives the deed:
- The current owner held complete, lawful title to the property;
- The property was free of all liens or other third-party claims on the title;
- The owner had the right to transfer the property to the new owner; and
- The current owner guarantees and will defend the title against the lawful claims of any other persons.4
The most common setting for a Maine warranty deed is an arms-length purchase of a residential property.
Maine Quitclaim Deed with Covenant Form
A Maine quitclaim deed with covenant is the Maine equivalent of what other states call a special warranty deed or limited warranty deed. The property owner guarantees a good title, but the guarantee covers only the time while the owner owned the property.5 In other words, the owner promises nothing occurred to cloud the property’s title while he or she held it. A quitclaim deed with covenant makes no representations about title problems from before the owner took title.
Quitclaim deeds with covenant split the risk of title problems between the current owner transferring the property (the grantor) and the new owner receiving it (the grantee). The compromise approach makes this deed form popular for sales of commercial real estate.
Maine Quitclaim Deed without Covenant Form
A Maine quitclaim deed without covenant form gives the new owner whatever interest the current owner can legally convey.6 It includes no representations about whether the property’s title is clear or the current owner actually has an interest to transfer.7 The current owner provides no warranty or covenants of title.
The new owner who receives property under a quitclaim deed without covenant accepts all risk of problems with the property’s title. The current owner bears none. Quitclaim deeds without covenant are common when the new owner provides no consideration for the property—such as when property is transferred to a trust, to a family member as a gift, or to a spouse in connection with divorce proceedings.
What Types of Estate Planning Deeds Are Used in Maine?
Maine law authorizes several types of deeds that are useful in estate planning because they let real estate pass to a named beneficiary without going through probate.
Maine Transfer-on-Death Deed Form
A Maine transfer-on-death deed—also called a TOD deed—names a beneficiary to take title to real estate when the current owner dies.8 A TOD deed’s primary advantage is that it lets the owner arrange in advance for a property’s eventual transfer without giving up rights in the property during life.9 A property owner records a TOD deed while the owner is living, but the deed is fully revocable and has little legal impact until the owner dies.10
Maine Life Estate Deed Form
A Maine life estate deed creates a life estate that lasts till the owner dies and a remainder interest for after the owner’s death.11 Property owners who use life estate deeds in estate plans typically reserve the life estate and give the remainder interest to a family member or other heir. The key difference between life estate deeds and TOD deeds is that a life estate deed’s remainder is a vested legal interest while the property owner is still living. An owner who records a life estate deed can no longer sell or transfer complete title to the property—only to the life estate.12
What Are the Ways in Which Multiple Owners Can Jointly Own Maine Real Estate?
Co-owners of Maine real estate can choose one of the two forms of co-ownership recognized in Maine.
Tenancy in Common
Tenancy in common is Maine’s default co-ownership form. Tenants in common own separate interests in the property.13 Each owner’s interest is described as a fraction or percentage of the whole. A tenancy-in-common interest becomes part of the owner’s estate upon the owner’s death and passes under the owner’s will or Maine’s probate laws.
Joint tenancy is a common choice for married co-owners due to its right of survivorship. A deceased joint tenant’s interest does not go through probate. Instead, the surviving co-owner automatically receives the deceased co-owner’s share, so the survivor holds complete ownership.14 Maine allows a sole owner of real estate to record a deed that transfers title to the owner and another person as joint tenants—which lets the property avoid probate.
A Maine deed to two or more new owners must declare the intent to create a joint tenancy. A deed expresses the intent by including phrases like “as joint tenants,” “in joint tenancy,” “with rights of survivorship,” or “to them and to the survivors of them.”
Tenancy by the Entirety
Tenancy by the entirety is a common law co-ownership form permitted only for married couples. Tenancy by the entirety—which is not recognized in Maine—is similar to joint tenancy but with extra asset-protection benefits. A Maine deed that transfers real estate to co-owners “as tenants by the entirety” creates a joint tenancy.15
Real Estate Ownership through Trusts
Two or more persons can also create a trust to hold title to Maine real estate in which both persons have a beneficial interest. For example, a married couple might record a deed titling real estate in both of their names as co-trustees of a revocable living trust.16 The spouses retain control of the property as co-trustees and can continue using the property as beneficiaries of the trust. The property avoids probate when the second spouse dies. A successor trustee transfers title according to instructions in the document that created the trust.17
What Are the Rules for Spousal Ownership of Maine Real Estate?
Additional deed requirements and real estate ownership rules can apply when one or more owners are married. Maine’s spousal ownership rules are as follows.
Maine Homestead Rights
Maine law does not specifically require a non-owner spouse’s signature on a deed that transfers homestead property owned by the other spouse—as in some states. However, other Maine laws make a spouse’s signature necessary for most real estate transfers.
Maine Spousal Joinder Rules
Maine does not absolutely require a non-owner spouse’s signature for a deed to validly transfer real estate owned only by the other spouse.18 However, in certain circumstances, real estate transferred without a non-owner spouse’s consent is subject to elective share rights when the owner spouse dies—particularly if real estate is transferred for less than fair market value.19 Maine law also requires a non-owner spouse’s signature if property is subject to a claim in a divorce case.20
To avoid future uncertainty in a property’s title, the best practice when transferring Maine real estate is to include both spouses’ signatures on the deed. An express waiver of potential rights in the real estate is a good idea and may be required by a title insurance company.
Maine’s statutory short-form language releasing a spouse’s claims on real estate transferred by the other spouse is “[SPOUSE’S NAME] (wife/husband/spouse) of said Grantor, joins as Grantor and releases all rights by descent and all other rights.”21
Spousal Intestate Share
A surviving spouse’s intestate share is the portion of the deceased spouse’s estate the surviving spouse inherits if there is no will. The spousal intestate share in Maine depends on the deceased spouse’s other living relatives.
The surviving spouse receives the entire estate if either:
- The deceased spouse leaves no living children or parents; or
- All living children of either spouse are both spouses’ children.22
Otherwise, the surviving spouse’s intestate share is:
- $300,000.00 plus three-fourths of the balance if the deceased spouse leaves a surviving parent but no surviving children;
- $100,000.00 plus half of the balance if all the deceased spouse’s living children are also the surviving spouse’s children, but the surviving spouse has other children who are not the surviving spouse’s children; or
- Half of the estate if the deceased spouse has living children who are not the surviving spouse’s children.23
Spousal Elective Share
Maine avoids disinheritance of spouses by giving surviving spouses a waivable right to an elective share in a deceased spouse’s estate.24 The elective share is an alternative to the spouse’s share under the will.
A Maine spouse’s elective share is one-half of the marital property within the deceased spouse’s augmented estate.25 The augmented estate includes net probate assets and some non-probate assets, along with some of the surviving spouse’s assets. 26 The part of the augmented estate that qualifies as marital property depends on the length of the marriage.27 It can be as low as 3 percent (for marriages under one year) or as high as 100 percent (for marriages 15 years or longer).
The augmented estate used to calculate the elective share includes the value of real estate the deceased spouse transferred within two years before death—subject to exceptions.28 Property transferred before death is excluded if the transfer was made either:
- For adequate and full consideration; or
- With the other spouse’s written consent—which the spouse can give by signing the deed.29
Where Are Deeds Filed in Maine?
Maine deeds are recorded with the register of deeds for the county where the property is located.30 Aroostook County—Maine’s northernmost county—has two registries of deeds. Aroostook County’s Northern Registry is located in Fort Kent, and its Southern Registry is in Houlton. Oxford County previously maintained two registries—Oxford East and Oxford West—but the two were consolidated in 2019.
Maine law expressly prohibits employees of a register of deeds office from assisting with preparation of deeds and other recorded documents.31
Does Maine Allow Electronic Recording?
Maine has not adopted the Uniform Real Property Electronic Recording Act. However, Maine’s Electronic Transaction Act and Digital Signature Act allow for electronic recording. Some, but not all, of Maine’s counties accept deeds filed electronically through a third-party vendor. E-recording may require additional filing costs.
What Is the Cost to File a Maine Deed?
The registry of deeds charges a standard recording fee of $19.00 for a deed’s first page and $2.00 for each additional page.32 Registers of deeds may collect an additional records-preservation surcharge of $3.00 per document for recording deeds.33 The effective cost in most counties is therefore $22.00, plus $3.00 for each page over one.
A deed that includes more than four names to be indexed—counting all current and new owners—requires an additional $1.00 indexing fee for each name over four.34 A deed that references more than one other recorded document to be cross-indexed requires a fee of $13.00 for each additional cross-reference.35
Does Maine Charge a Transfer Tax for Real Estate Transfers?
Consideration—for purposes of calculating Maine’s transfer tax—means the total amount paid or to be paid for the real estate.38 Consideration includes any mortgages, liens, or other security on the property—regardless of whether the new owner assumes the debt. Real estate transferred for nominal consideration is taxed based on the property’s market value. 39 An amount is considered nominal if it is less than 20 percent of the property’s reasonable market value.
Which Deeds Are Exempt from Maine’s Transfer Tax?
Maine’s transfer tax statute lists 21 categories of recorded documents that are exempt from transfer tax.42 Common types of exempt deeds include:
- Deeds that confirm, correct, modify, or supplement a previously recorded deed without consideration and without changing ownership;43
- Deeds between spouses, parent and child, or grandparent and grandchild, or between spouses in divorce proceedings;44
- Deeds created pursuant to a merger or consolidation of business entities if no gain or loss is recognized;45
- Deeds from a subsidiary to a parent corporation for no consideration other than cancellation or surrender of the subsidiary’s stock;46
- Deeds distributing property under the Maine Uniform Trust Code or Maine Probate Code;47
- Deeds to a trustee, nominee, or straw for the grantor as beneficial owner;48
- Deeds to a trustee, nominee, or straw for another person’s benefit if the deed would be exempt if made directly from the grantor to the trust’ beneficiary;49
- Deeds from a trustee to a beneficiary;50
- Deeds from a family business entity to an owner of the entity for no consideration other than an interest in the entity;51
- Deeds transferring real estate under a Maine transfer-on-death deed.52
Does Maine Require Any Additional Forms When Recording a Deed?
Most deeds must be accompanied by a completed real estate transfer tax declaration (Form RETTD) when filed for recording.53 Form RETTD—which is published by Maine’s state tax assessor and is available online—provides information about the parties and the property. The register of deeds uses the information to calculate the transfer tax due. The form states the reason for exemption if the deed is exempt.
Certain Maine deeds do not require a Form RETTD, including:
- Transfer-on-death deeds;
- Deeds to or from government agencies;
- Deeds without additional consideration that confirm, correct, modify, or supplement a previously recorded deed; and
- Deeds distributing real estate under the Maine Probate Code.
Maine Non-resident Income Tax Withholding
Maine law requires a purchaser of Maine real estate to withhold income tax totaling 2.5 percent of the consideration paid for the property.54 The purchaser must transmit the withheld amount to the State Tax Assessor within 30 days. A buyer who fails to comply with the withholding requirement becomes personally liable for the amount of the tax.55
A purchaser is not required to withhold the tax amount in any of the following circumstances:
- The seller provides the buyer with written certification under penalty of perjury that the seller is a Maine resident as of the date of transfer.
- The state tax assessor certifies that no tax is due for the gain or that the seller has provided adequate security.
- The consideration for the property is less than $100,000.00.
- Written notification of the withholding requirement has not been provided to the buyer.
- The sale is a foreclosure sale.
- The seller is a government agency or tax-exempt organization or business entity.56
Withholding obligations apply to all buyers if there is more than one buyer, and an exemption must apply to all sellers if a property is sold by multiple sellers.57
- 33 M.R.S. § 151.
- See 33 M.R.S. § 775.
- 33 M.R.S. § 775(1).
- 33 M.R.S. § 763.
- 33 M.R.S. § 765.
- 33 M.R.S. § 161.
- See 33 M.R.S. §775(4).
- 18-C M.R.S. § 6-417.
- 18-C M.R.S. § 6-412.
- 18-C M.R.S. § 411.
- 33 M.R.S. § 158.
- 33 M.R.S. § 157.
- 33 M.R.S. § 159.
- 33 M.R.S. § 159.
- 33 M.R.S. § 159.
- See 33 M.R.S. § 160.
- See 33 M.R.S § 851.
- 33 M.R.S § 480.
- 18-C M.R.S. § 2-208.
- 33 M.R.S § 480.
- 33 M.R.S § 772-A(1).
- 18-C M.R.S. § 2-102(1).
- 18-C M.R.S. § 2-102(2)-(4).
- See 18-C M.R.S. §§ 2-201, et seq.
- 18-C M.R.S. § 2-202(1).
- 18-C M.R.S. § 2-203(1).
- 18-C M.R.S. § 2-203(2).
- 18-C M.R.S. § 2-205.
- 18-C M.R.S. § 208(1).
- 33 M.R.S. § 201.
- 36 M.R.S. § 611.
- 36 M.R.S. § 751(1).
- 36 M.R.S. § 752.
- 36 M.R.S. § 751(1).
- 36 M.R.S. § 751(13-A).
- 36 M.R.S. § 4641-A.
- 36 M.R.S. § 4641-A(1)(A).
- 36 M.R.S. § 4641(1).
- 36 M.R.S. § 4641(3).
- 36 M.R.S. § 4641-B(1).
- 36 M.R.S. § 4641-A(1)(B).
- 36 M.R.S. § 4641-C.
- 36 M.R.S. § 4641-C(3).
- 36 M.R.S. § 4641-C(4).
- 36 M.R.S. § 4641-C(7).
- 36 M.R.S. § 4641-C(8).
- 36 M.R.S. § 4641-C(11)
- 36 M.R.S. § 4641-C(15)(A).
- 36 M.R.S. § 4641-C(15)(B).
- 36 M.R.S. § 4641-C(15)(C).
- 36 M.R.S. § 4641-C(16).
- 36 M.R.S. § 4641-C(21).
- 36 M.R.S. § 4641-D.
- 36 M.R.S. § 5250-A.
- 36 M.R.S. § 5250-A(2).
- 36 M.R.S. § 5250-A(3).
- 36 M.R.S. §§ 5250-A(6) and (7).