Probate in Maine: Part 2 - The Probate Process

Intro: This is a three-part series which attempts to highlight some important features of 18-C M.R.S. §§ 1-101 - 10-118, also known as the Maine Uniform Probate Code. The focus of these articles is on probating an estate after death. I will provide a mixture of law and professional experience navigating the probate system. Part 2 covers the probate process, and what is typically involved therein. Remember that this information does not constitute legal advice, every estate is different and you should not administer someone’s estate or plan your own, based on the information herein.

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The probate process is, first and foremost, a court procedure. Probate is overseen by the Probate Court in the county where the decedent (a lawyer word for deceased) lived at the time of their death. Probate Courts, according to the Maine Rules of Probate court, Rule 81, typically hear cases of probate, guardianship, matters involving minors, name changes, and emergency proceedings. The probate courts are governed by their own set of rules, outside of criminal court and civil court, where the majority of court cases take place. The probate courts are smaller in number (and usually size), and hear far fewer cases. What this means for the participants of probate court is their experience in probate court may vary, depending on the county and judge presiding over their case.

Because probate is a court case, there are parties to that case. The first, and probably most important party, is the Personal Representative (sometimes called the Executor). The personal representative is responsible for filing the case, administering the estate, and ultimately making sure the decedent’s assets flow to where they are supposed to. Other parties include the estate itself, creditors, and the beneficiaries. The estate of the decedent should be thought of as its own entity. For the sake of imagery, image that you are sitting at a table with all the parties involved: the personal representative, who may be a sibling of the decedent, the beneficiaries, who are perhaps the children, and there is a third “person” at the table, who we will call the estate. The estate is legally allowed to take actions, make decisions, hold assets, and has certain legal rights. However, this person does not have a corporeal form, a body. The estate needs the personal representative to act on its behalf, which is just what they do.

So how does a personal representative start this court case? The probate courts have an application, called form DE 101 or DE 101(i). To know which form you are supposed to use, you need to answer the question: Is this a formal, or informal probate? The big difference between these two types of probate is that a formal probate will include hearings in front of a judge, and follow typical court procedure, whereas an informal probate will typically never see the inside of a court room, and nearly everything is accomplished by mail, or digital filings. Because of the ease of informal probate, most personal representatives opt for the informal route. However, the Probate Code requires that formal probate take place in some scenarios, those include: 1) Cases where there is no Will (Intestacy), 2) Cases where there is more than one Will, or, 3) Questions about the legitimacy of a Will, 4) Challenges to a Will’s terms or the Personal Representative’s authority to act, 5) at the court’s discretion, or, 6) upon the request of the personal representative.

The formal proceedings, if necessary, will address whichever issue(s) are at hand, before proceeding to the administration of the estate. Should any of these issues arise during the administration, they must be resolved, even if the estate was previously being adjudicated as an informal probate. Because a formal probate is typically more rare, and often has case-specific issues to resolve, the remainder of this article will focus on informal probate.

In order to make their application in an informal proceeding, the personal representative is required to provide 1) a complete application, sworn to be true, 2) the original will (not a copy), 3) a summary of the probate assets 4) the parties involved in the case, and 5) a death certificate of the decedent. Once these documents are given to the court, the court decides if the case can be heard. If everything was filled out properly and provided timely, then the court is likely to approve and accept the case. All of this information is then filed on public record. Maine’s public records can be viewed at maineprobate.net. The personal representative is also required to notify all of the beneficiaries and other parties involved in the case that probate is starting. The personal representative then receives a letter from the court signifying that the estate is open, and that the personal representative has the authority to act on behalf of the estate. These “letters of authority” allow the personal representative to begin to move assets out of the name of the decedent, and transfer the ownership to the estate of the decedent, instead.

Next, the courts require that an advertisement notifying the public about the death of the decedent is placed in the newspaper. The court can run this ad for a fee, or the personal representative can. Note: this is not an obituary, this is a formal notice to all individuals that the decedent has passed away and that probate has started. The purpose of this ad is to mark the beginning of a four-month creditor period. Over the next four months, any creditors who wish to make a claim on the estate may do so. Typically, this will include unpaid credit card bills, medical bills, Medicaid (MaineCare) estate recovery, lawsuits, and calls of existing debts that were in the name of the decedent. During this creditor period, the assets of the estate must stay available to pay any potential claims. The personal representative can still utilize funds to pay administrative fees, taxes, funeral expenses, and reasonable allowances to the family (usually enough to pay utilities, groceries, etc. for a year) The majority of funds are effectively on hold to resolve any claims that are filed against the estate. If a claim is filed timely within the four-month period, then that claim must be resolved fully before the funds can be disbursed. This means that the beneficiaries may not be able to utilize the funds for some time, depending on the types of claims that come in.

After the creditor period, the personal representative can begin the disburse the assets, pursuant to the Will of the decedent. Once all of the assets are distributed from the estate, the personal representative can file a sworn statement, indicating that their job was completed, and that the estate can be closed. If the court agrees and accepts, this marks the end of the estate. By law, the minimum time period for probate is six (6) months, and may only be closed if it has been nine (9) months since the death of the decedent. On average, my experience with probate is that a typical estate will run for somewhere between 1-2 years before closing fully.

This extended period can be caused by a variety of factors, ranging from disagreements among the beneficiaries, challenges to the Will, to issues moving assets, to creditor claims, to the personal representative simply not doing their job timely. The first question most clients ask after hearing the explanation of the probate process is: “How do I avoid probate?” - A question which will be answered in Part 3.