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Probate Law

 

Probate Law FAQ



A CLOSE RELATIVE JUST DIED, WHAT SHOULD I DO?

Our advice is to take some time to grieve, spend time with loved ones, and deal with the immediate needs in front of you such as burial and funeral arrangements. There is no hurry for probate. When you are ready, the first steps on the legal end are to locate the original Will and obtain a death certificate. The funeral home usually will order death certificates for you. Copies are fine for most purposes, so it is not necessary in most cases to order more than a few. Wills usually can be found with the deceased person’s important papers or in a safe deposit box.  An attorney’s office often will have the original, and the attorney’s contact information should be on copies of the documents.  The Personal Representative named in the Will or a close relative is usually the person who meets first with an attorney or files with the probate court.

If this is you, your next steps are to get addresses for the deceased person’s closest relatives and anyone named in the Will, as you will need this information when filing probate. Finally, it is helpful to compile a list or file of documents with details of the deceased person’s assets. This information may be found in that person’s desk or files. If not, their mail often contains financial statements, past tax returns will contain details of assets, and a safe deposit box may contain deeds, insurance policies and such. Not all estates require legal representation, but you may find it helpful to at least consult with an attorney. Port City Legal offers both consultations and full representation. In some cases, you may want some advice on what you need to do and how to file the initial forms with the court, but otherwise be fine to administer the estate on your own. If you wish, Port City Legal can handle all aspects of the estate from locating assets to preparing final accountings and tax filings.

 

I WAS NAMED PERSONAL REPRESENTATIVE IN A WILL. WHAT SHOULD I DO?

You are the only person able to obtain the original Will from whoever is holding it, so your first task is to locate the Will. Most times it either is held by the law office that prepared the Will, stored with important papers in the home, or in a safe deposit box. If you are not authorized to access the safe deposit box or find the Will, you can seek court appointment as the Personal Representative, which then will give you the authority to access the safe deposit box.

To file for probate, you will need addresses for the deceased person’s relatives as well as anyone named in the Will. You also will death certificates and the original Will. Finally, you need an approximate value of their probate assets as well as details for any real estate that they owned at the time of their death. You can get this information from paperwork in their home, a safe deposit box, mail containing financial statements, and past tax returns.

The probate court requires the use of certain forms, and charges a filing fee based on the value of the estate’s probate assets. You can pick up those forms at the probate court, or we can file them for you, which we do electronically. Probate must be filed in the county where the deceased person lived.

My best advice for a Personal Representative is to keep all of the interested parties informed. If there is a delay in getting values or making distributions, provide the details that you do have and the reason that you do not have all of them. Most conflict is caused when Personal Representatives keep others in the dark about what is happening.  Everyone deals with grief differently, but acting unilaterally or without communication can cause others to question your actions.

 

I AM A BENEFICIARY. WHAT SHOULD I DO?

You should receive notice once the probate court appoints a Personal Representative of the estate. You also can search online at www.maineprobate.net to determine what, if anything, has been filed in regards to the estate. All filings, including Wills, are available there. If no one has filed probate, you could file yourself. This can be an effective way to get some action.

If you do not think that the Will is valid, you can file a challenge to it in probate court. You also can seek to compel the personal representative to act if you believe that they are not fulfilling their duties, to be supervised in their duties, or even to be removed. The responsibilities and duties of a Personal Representative are at 18-A M.R.S.A. §§ 2-801 to 2-818. They include providing you with an inventory of the estate within three months of their appointment and a final accounting before closing the estate.

Although not always the case, keep in mind that Personal Representatives may be dealing with their grief and not administering the estate as quickly or openly as you would like. We usually advise clients to request information and offer assistance before resorting to a court challenge.  Mediation also may help in situations where emotions are running high and communication has broken down.

 

I JUST RECEIVED NOTICE OF A PROBATE ACTION. WHAT SHOULD I DO?

You also can search online at www.maineprobate.net to determine what has been filed in regards to the estate. All filings, including Wills, are available there. If you do not think that the Will is valid, you can file a challenge to it in probate court. You also can seek to compel the personal representative to act if you believe that they are not fulfilling their duties, to be supervised in their duties, or even to be removed. The responsibilities and duties of a Personal Representative are at 18-A M.R.S.A. §§ 2-801 to 2-818. They include providing you with an inventory of the estate within three months of their appointment and a final accounting before closing the estate.

 

WHAT HAPPENS WHEN SOMEONE DIES WITHOUT A WILL?

The probate assets of the deceased person are distributed by Maine’s laws of intestacy. (See WHAT ARE PROBATE ASSETS AND WHY DOES IT MATTER?) The law is found at 18-A M.R.S.A. §§ 2-101 – 2-114. A popular misconception is that assets go to the state. Here’s what happens under intestacy laws:

If the deceased person is survived by a spouse:

  • but left no living kids, grandkids or parents: 100% to the spouse
  • left no living kids or grandkids, but there is a living parent: $50,000 and 50% to spouse, 50% to the parent(s)
  • is survived by children who also are the children of the surviving spouse: $50,000 and 50% to spouse; 50% between children
  • is survived by children, at least one of whom are not the children of the surviving spouse: 50% to spouse; 50% between children

If the deceased person is not survived by a spouse:

  • and left living children or grandchildren: 100% between children/grandchildren
  • left parents but no children or grandchildren: 100% to parents
  • left no parents, children or grandchildren: 100% between siblings
  • left no parents, children, grandchildren or siblings: 100% between nieces/nephews

It is important to note that, if a deceased person’s child predeceased them but left living children, those living children will receive their deceased parent’s share of the intestate inheritance. This is called per stirpes distribution.

 

WHAT CAN I DO IF I THINK A WILL IS INVALID?

If you think that a Will is invalid, you can file a Will contest in the probate court where the Will was filed. It can be difficult to prove that a Will is invalid, especially because the most important witness, the signer, is not available to question. The signer must be at least 18 years old and of “sound mind”, which has been taken to mean that the signer understands that he or she is signing a Will and intends certain assets be given to certain people at her or his death. If you believe that someone was pressured to sign a Will, you also can try to prove “undue influence”. There are specific legal standards for this, and we recommend legal representation in these cases.

 

DO I HAVE A RIGHT TO READ SOMEONE ELSE’S WILL?

If the person who signed the Will is alive, no.

Once someone dies, the Will should be given to the person named in it as the Personal Representative or filed with the probate court. Probate court filings are public and available online at www.maineprobate.net. Upon filing probate, a Personal Representative is obligated to notify all persons named in the Will or who would inherit assets under the laws of intestacy. If probate is not filed, a Will may never be seen. This is usually because there were no probate assets so the Will was not needed.  Probate assets cannot be transferred legally without some sort of probate process.

 

IS THERE A READING OF A WILL WHEN SOMEONE DIES?

Only in the movies.

 

WHAT ARE THE DUTIES OF A PERSONAL REPRESENTATIVE?

The duties are spelled out in Maine’s probate law at 18-A M.R.S.A. §§ 2-801 to 2-818. Beyond the initial filing and notice, a Personal Representative must prepare an inventory of an estate’s probate assets within three months of appointment and provide that inventory to all interested parties. A Personal Representative also must inspect any creditor’s claims against the estate and either deny them as invalid or pay them. The Personal Representative then must administer the estate in accordance with the Will or the laws of intestacy, as well as Maine’s probate law. Before closing the estate, a Personal Representative must prepare a final accounting, which lists the estate’s assets, expenses, income and distributions, showing that all creditors and beneficiaries have been paid. The accounting must be sent to all interested parties.

 

DO I HAVE A RIGHT TO KNOW WHAT IS GOING ON WITH AN ESTATE?

Probate process is public, so you can look it up online at www.maineprobate.net. Non-probate assets are not public, so if you are not the beneficiary or joint owner, you have no right to find out how those assets were transferred. Beyond what you can learn online, you have a right to receive information from the Personal Representative of the estate if you are an interested person. Interested persons include people named in the deceased person’s Will, the deceased person’s spouse/domestic partner and children, creditors, beneficiaries, and anyone with a property right or claim against the estate. If you are not sure of your rights, Port City Legal can help.

 

DO ESTATES HAVE TO PAY TAXES?

Estate taxes, also known as death taxes, are only assessed on estates worth more than $5.45 million. Needless to say, very few estates pay estate taxes. Many estates receive the benefit of this tax, however, because the tax basses of all estate assets are “stepped up” to their value on the date of death. This means that the land your grandfather bought thirty years ago for $10,000 that is now worth $300,000 gets a new tax basis at his death of $300,000, so that, if sold, there will be no capital gains tax. This is a big benefit, and a good reason why certain assets that have appreciated in value are best inherited rather than gifted or sold prior to death.

Estates may need to pay income tax. An estate is a taxable entity. If it receives more than $600 in income in a year, it will need to file a Form 1041. Estates usually earn income by receiving income or dividends. Selling estate property generally is not considered income.

Heirs and devisees, people who receive estate assets, are not taxed on their inheritance.

 

WHO PAYS THE BILLS AFTER SOMEONE DIES?

When someone dies, unpaid bills become the responsibility of the estate. Probate sets certain procedures and timelines for how claims should be made; the law can be found at 18-A M.R.S.A. §§ 3-701 to 3-721.  The Personal Representative of the estate, once appointed by the probate court, has the authority to transfer the deceased person’s funds into a new estate account and to use these funds to pay the estate’s bills. If someone else pays an expense of the estate, the Personal Representative would have the authority to reimburse that payment as long as the Personal Representative deems it to be a valid payment. Some clients have worried that their deceased parents’ debts or bills become their responsibility. That is not the case. Port City Legal can help you determine whether claims are legitimate and manage these expenses.

 

WHAT ARE GUARDIANSHIP PROCEEDINGS?

Guardianship is a legal designation for someone who is appointed by the probate court to make basic, life decisions about the life of another person, called the ward. Such decisions include where the ward lives, their medical care, their education, etc. Guardianship proceedings require a finding that the ward is unable to make responsible decisions regarding their own life. Needless to say, taking someone’s fundamental right to make their own decisions comes with a fair amount of legal process.  The ward has a right to be involved in the proceedings and may be appointed an attorney; other relatives receive notice of the proceedings, a physician’s report is required, the proposed guardian must file a plan with the court for how the guardian will provide for the ward’s care and comfort, and a hearing is held before a guardian is appointed. Most guardianships involve an elderly person suffering from dementia who insists on remaining home when it is not safe to do so, an individual suffering from chronic drug or alcohol abuse or mental illness, or for a child with special needs such that there are unable to live on their own, upon their reaching the age of majority. Guardianships also can be sought for minor children. Once appointed, guardians must file reports detailing various aspects of the ward’s life with the probate court annually.

 

WHAT IS A CONSERVATORSHIP?

Conservatorship is a legal designation for someone who is appointed by the probate court to make financial decisions for another person, called the ward. Conservatorship proceedings require a finding that the ward is unable to make responsible financial decisions. This taking of the ward’s fundamental right to manage their finances comes with a fair amount of legal process: the ward is involved in the proceedings and can be appointed an attorney, other relatives receive notice of the proceedings, a physician’s report is required, the proposed guardian must file a plan with the court for how the guardian will manage the ward’s finances, and a hearing is held before a conservator is appointed. Conservator must file credit reports with court and post a bond for the amount of the ward’s assets. Once appointed, conservators must file accounts and credit reports with the probate court annually.

 

DO I NEED GUARDIANSHIP OF MY SPECIAL NEEDS ADULT CHILD?

In most cases, this is a good idea. If your child is amenable and there is no dispute about who will serve as guardian, this can be a relatively quick and easy process.