Probate Basics | Legal Services for Maine Elders (2024)

When someone dies, their property and assets are called the “estate.” Probate is the process of distributing the estate according to a Will, or if there is no Will, according to the state “intestacy” law. The intestacy law tells the court what to do with the estate. Usually, under the intestacy law, only relatives of the decedent get anything from the estate.

This section will give you some basic information about the probate process.

What is probate?

Probate is the legal process that takes place after someone dies. To start the probate process, you need to file an “Application for Probate” in the probate court in the county where the decedent lived. In Maine, each county has its own probate court.

If there is a Will, it needs to be submitted to the probate court. The probate judge will decide whether or not the Will is valid. If the Will names a “Personal Representative” - sometimes called “Executor” or “Executrix” then the court will legally appoint that person to take care of the estate. If the Will does not name a Personal Representative, the court will appoint someone to do this job according to Maine law.

What does the Personal Representative have to do?

The Personal Representative is in charge of settling the estate. This means that they must: find and make a list of the things in the estate; follow the instructions in the Will if there is one; and pay any outstanding bills if there is enough money to do so. If the Will does not tell the Personal Representative what to do with property in the estate, then the Personal Representative must distribute that property according to the state intestacy law.

If the decedent did not have a Will, the estate is distributed according to Maine’s intestacy law.

The probate court will supervise the Personal Representative during the probate process.

Why does the estate have to go through probate?

The estate needs to go through probate in order to officially transfer title of the property in the estate to the person or people who inherit according to the Will or state law. Once this happens, other people cannot claim any right to the property. This includes people or companies to which the decedent owed money.

Does every estate have to go through probate?

No. Certain kinds of property can be passed without going through probate. Property owned with a “Right of Survivorship” automatically transfers to the joint owner at death and that person owns the property fully. Property can also pass through a Trust established during the decedent’s lifetime.

You should talk to an attorney to find out whether an estate needs to go through probate. If you are a Maine resident who is 60 or older, call the Legal Services for Maine Elders Helpline at 1-800-750-5353.

Do small estates have to go through probate?

In Maine, if an estate is worth no more than $40,000, it is considered a “small estate.” Small estates can be wrapped up quickly by filing a document called a “Small Estate Affidavit.” This is usually a simple process, but there are some legal steps that must be taken before you can wrap up a small estate.

You should talk to an attorney before you transfer any of the property in a small estate. If you are a Maine resident who is 60 or older, call the Legal Services for Maine Elders Helpline at 1-800-750-5353.

How long will it take to probate the estate?

It depends on the estate. Large estates can take longer to probate than smaller estates. But generally, probate doesn’t take very long in Maine. You should talk to an attorney to get advice on how best to wrap up an estate. The attorney will let you know if the estate needs to pass through informal or formal probate proceedings. Informal probate takes less time than formal probate, and is usually less expensive.

If you are a Maine resident who is 60 or older, call the Legal Services for Maine Elders Helpline at 1-800-750-5353 to talk to an attorney for free.

Resources

Legal Services for Maine Elders
If you are a Maine resident who is 60 or older and you have questions about the probate process, call the Legal Services for Maine Elders Helpline at 1-800-750-5353 to speak to an attorney for free.

Probate Basics | Legal Services for Maine Elders (2024)

FAQs

What assets are exempt from probate in Maine? ›

Listed below are some of the non-probate assets available in Maine.
  • Any property in a living trust.
  • Life insurance policies.
  • 401(k)s, IRAs, other retirement accounts.
  • Securities in transfer-on-death accounts.
  • Pay-on-death bank accounts.
  • Joint tenancy real property.
Feb 16, 2024

How long does an executor have to settle an estate in Maine? ›

The Estate Closing (9-24 months)

Probate can conclude when all creditors are paid, taxes are filed, and assets are sold or distributed. After finalizing the executor's duties, the probate court judge then issues the final order of discharge of the personal representative. This court action officially closes the estate.

Do you need a lawyer to file probate in Maine? ›

Normally, it does not take long or cost a lot to probate a Will in Maine. Many people go through this process without an attorney. The probate court simply makes sure everything is in order and the Will is followed.

How to avoid probate in Maine? ›

Certain kinds of property can be passed without going through probate. Property owned with a “Right of Survivorship” automatically transfers to the joint owner at death and that person owns the property fully. Property can also pass through a Trust established during the decedent's lifetime.

Which of the following assets do not go through probate? ›

Protect your assets - update your estate plan today

Luckily, there are solutions. First and foremost, there are a number of asset types that typically do not pass through probate. This includes life insurance policies, bank accounts, and investment or retirement accounts that require you to name a beneficiary.

What is rule 11 in probate in Maine? ›

Rule 11 - Signing of Pleadings (a) Probate Proceedings. (1) Informal Probate Proceedings. In informal probate proceedings, the application shall be verified by the applicant and shall state the applicant's address and the name and address of the applicant's attorney, if any. (2) Formal Probate Proceedings.

Do all wills need to be probated in Maine? ›

To decide whether probate is necessary for a particular estate, the individual's assets must be identified and valued. If the probate estate has a total value (value of probate assets minus any liens and encumbrances) of $40,000 or less and does not include any real property, then probate is not necessary.

Is a handwritten will legal in Maine? ›

Maine does permit handwritten wills (Me. Rev.

Does a deed override a will in Maine? ›

If you have made a will or previous TOD deed that leaves the property to someone, your new TOD deed will override it. Your rights. You keep complete ownership of, and control over, the real estate while you're alive.

Which of the following is a commonly used way to avoid probate? ›

Establish a living trust: This is a common way for people with high-value estates to avoid probate. With a living trust, the person writing the trust decides which assets to put into the trust and who will act as trustee. When the trust owner dies, the trustee will divide the assets outside of probate.

Does a spouse automatically inherit everything in Maine? ›

In Maine, if you are married and you die without a will, what your spouse gets depends on whether or not you have living parents or descendants -- children, grandchildren, or great-grandchildren. If you don't, then your spouse inherits all of your intestate property.

What is the small estate limit in Maine? ›

In order to use this affidavit, the death must have occurred at least 30 days prior to when the affidavit is signed. The value of the decedent's estate, less encumbrances and liens, must be less than $40,000 (indexed to inflation: $49,700 in 2024).

Which of the following assets are non probate assets? ›

Examples of non-probate assets are: jointly-owned property (car, home, bank accounts, etc.), 401(k)s, life insurance, Transfer on Death accounts, and life estate properties.

Which assets from the estate of which individual avoid probate at that individual's passing? ›

Assets like health or medical savings accounts, life estates, life insurance policies, retirement accounts — including IRAs and 401(k)s — and annuities allow you to name a beneficiary. This means that when you die, those assets will be given directly to the person you appointed without having to go through probate.

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