South Portland Probate Attorneys
At Jackson MacNichol, we can counsel you on the administration of an estate, or step into the administering role ourselves. Whether you are a personal representative, executor, trustee, or a fiduciary such as an agent or an attorney-in-fact, you need good legal advice. Your failure to properly administer an estate, to follow the terms of the operative instrument, or to understand your legal responsibilities could result in civil or even criminal liability.
If you are currently planning your estate and don’t know who to name as personal representative or trustee, one of our estate planning attorneys can perform in that capacity. By naming an institution such as a law firm or bank to oversee a trust or estate, you can rest assured knowing that your property and assets will be in the hands of dedicated and experienced professional
About Probate Trust Administration in Maine
A close relative just died in Maine, 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 are to locate the original will and to obtain the death certificate. The funeral home usually will order death certificates for you. Copies are fine for most purposes, so it is usually not necessary to order more than a few.
You will usually find the will 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 and files with the probate court.
If you are the personal representative, you need to get addresses for the deceased person’s closest relatives and anyone named in the will, as you will need this information when filing for probate. It also 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 or tax returns that contain details of assets. Their safe deposit box may contain deeds, insurance policies, and other records of assets.
Not all estates require legal representation, but you may find it helpful to at least consult with an attorney. Attorney Jackson 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 comfortable to administer the estate on your own. If you wish, Jackson MacNichol 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 decedent’s home, or in their safe deposit box. If you are not authorized to access the safe deposit box, 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 else named in the will. You also will need a death certificate and the original will. Finally, you need an approximate value of their probate assets as well as details of 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 can and the reason for the delay. Most conflicts arise 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 named as 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 the will, are available there. If no one has filed probate, you may want to consider initiating the proceedings yourself.
If you think the will is invalid, 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. The court also has the authority to supervise or even remove a personal representative. The responsibilities and duties of a Personal Representative are at 18-A M.R.S.A. sections 2-801 to 2-818. These duties 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.
Do I need a lawyer for probate in Maine?
Most people can navigate the probate process without the assistance of a lawyer. The process requires attention to detail, organization, and honesty. If you are dealing with a small to medium sized estate, and you are able to balance your duties as personal representative with your other responsibilities such as your career and family, then you absolutely can go through the process alone. But if you are dealing with a large and complex estate, you have limited time to devote to the process, or there are creditors attempting to recover from the estate, the assistance of a Maine probate lawyer can take a big burden off your shoulders.
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. If you think that the will is invalid, you can file a challenge to it in probate court. You also can seek to compel the personal representative to act if you think that they are following short of their duties. You may also request for the court to supervise their activities, or in extreme cases, to remove them.
In the vast majority of cases, however, all you need to do as a beneficiary who has received notice of the probate proceeding is to wait for the process to conclude. Most cases proceed without issue and the probate process effectively wraps up the estate and gets the beneficiaries the inheritance they are due. All you need to do is stay informed of the process.
What happens when someone dies without a will?
The probate assets of the deceased person will be distributed according to Maine’s laws of intestacy. Probate assets are those of which the decedent was the sole owner, such as bank accounts, real estate, and personal property. Non-probate assets are those held in trust, owned jointly with another person, or retirement fund and insurance policies with named beneficiaries. Non-probate assets pass to the beneficiaries directly and independently of the probate process.
You can find Maine’s intestate laws at 18-A M.S.R.A. sections 2-101 to 114. A popular misconception is that assets go to the state. But this only happens if the state cannot find any living relatives (which almost never happens). Here’s how Maine’s intestacy laws work:
If the deceased person is survived by a spouse, and:
- left no living kids, grandkids, or parents: the spouse gets everything
- left no living kids or grandkids, but there is a living parent: $50,000 and 50% of the remaining estate goes to the spouse, and 50% to the parent(s)
- is survived by children who also are the children of the surviving spouse: $50,000 and the 50% remaining goes to the spouse, with the other 50% split between the children
- is survived by children, at least one of whom is not the child of the surviving spouse: 50% to spouse, with the remaining 50% split between the children.
If the deceased person is not survived by a spouse, and:
- left living children or grandchildren: everything is split between the children or grandchildren
- left parents but no children or grandchildren: everything gets split between the parents
- left no parents, children or grandchildren: everything is shared between the siblings
- left no parents, children, grandchildren or siblings: the estate is split between the nieces and nephews
It is important to note that, if a deceased person’s child died before them but has living children, those living children will receive their deceased parent’s share of the intestate inheritance. This is called per stirpes distribution.
More Frequently Asked Questions About Probate Proceedings in Maine
What can I do if I think the 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 upon their death.
If you believe that someone was pressured into signing 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. Contact Jackson MacNichol today if you are worried that your relative’s will was invalid or signed under undue influence.
Do I have the right to read someone else’s will?
If the person who signed the will is alive, no.
Once someone dies, the will must be given to 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 must notify everyone named in the will or who would inherit assets under the laws of intestacy.
If no one files for probate, the will may never be seen. This may happen if there are no probate assets, which means the will was not necessary. Probate assets cannot be transferred legally without some sort of probate process, and require the will to be filed.
Is there a reading of the 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 the estate’s probate assets within three months of their appointment and provide that inventory to all interested parties. This includes inventorying all assets and researching their values, as well as hiring appraisers in some cases.
A personal representative must also inspect any creditors’ claims against the estate and either deny them as invalid or pay them. The personal representative must then administer the estate in accordance with the will or the laws of intestacy, as well as Maine’s probate law. Before closing the estate, the personal representative must prepare a final accounting, which lists the estate’s assets, expenses, income and distributions in a way that shows that all creditors and beneficiaries have been paid. They must send the accounting to all interested parties.
Do I have a right to know what is going on with an estate?
The probate process is public, so anyone can look it up online at www.maineprobate.net. But non-probate assets such as trusts, insurance policies, and retirement funds are not public, so if you are not a beneficiary or joint owner of these assets, 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 or domestic partner, children, creditors, beneficiaries, and anyone with a property right or claim against the estate. If you are not sure of your rights, Attorney Jackson can help.
Do estates have to pay taxes?
Estate taxes, also known as death taxes, are only assessed on estates worth more than $11.4 million. Needless to say, very few estates pay estate taxes. Many estates receive a benefit from this tax law, 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.
An estate is a taxable entity, so it may need to pay income tax. If the estate 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 against the estate. The relevant laws are at 18-A M.R.S.A. sections 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 has the authority to reimburse that payment as long as the personal representative deems it to be valid. Some clients have worried that their deceased parents’ debts or bills might become their responsibility. This is not the case–although these debts and liabilities will reduce the amount of the estate that gets distributed. At Jackson MacNichol, we can help you to determine whether claims are legitimate and to manage these expenses.
What are guardianship proceedings?
Guardianship is when the probate court appoints someone to make basic life decisions about the life of another person, called the ward. Such decisions include where the ward lives, their medical care, and their education. 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 represented by an attorney at the guardianship hearing. Other relatives receive notice of the proceedings, a physician’s report is required, and the proposed guardian must file a plan with the court for how the guardian will provide for the ward’s care and comfort.
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. 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 when the probate court appoints someone to make financial decisions for another person, called the protected person. Conservatorship proceedings require a finding that the ward is unable to make responsible financial decisions. Taking away a person’s fundamental right to manage their finances requires a good amount of legal process.
The protected person may defend themselves against the proceedings with the help of an attorney. Other relatives and people of interest receive notice of the proceedings, and they may also testify at the hearing. A physician’s report is required and the proposed guardian must file a plan for the management of the protected person’s finances. After the hearing, the court may appoint a conservator if the judge is convinced that the protected person is incapacitated and unable to manage their own financial affairs, and that their property will be wasted unless it is managed properly.
A conservator may be an individual, a business such as a law firm, or a state agency appointed by the probate court to protect and manage the money and property of the protected person. Conservators must file credit reports with the court and post a bond for the amount of the protected person’s assets. Once appointed, conservators must file accounts and credit reports with the probate court annually.
Do I need guardianship of my special needs 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.
Still have questions about Probate in Maine? Talk to one of our estate planning attorneys today!
At Jackson MacNichol, we understand that estate planning probate proceedings can be a complicated and emotional process that quite literally will define your family’s future. That’s why we strive to focus on our individual clients’ needs, and are prepared to assist with every aspect of planning or settling an estate. We are always just one phone call away. For a free consultation about the estate planning process, call us today at 555-555-5555.
