What is Probate, and what does the Probate Court do?

Probate is the legal (court) process of making sure a decedent’s will is valid and then ensuring that taxes get paid, claims against the decedent have an opportunity to be considered, and property gets to the intended recipients. It is a public process and can be time-consuming – moreover, it can be expensive. Even worse, if you own property in more than one state, your estate may have to be probated in every state where you own real property!

Some people carefully plan to avoid going through probate.  With proper planning, there can be revocable trusts used, particular ways to title assets, and proper beneficiary designations to put an estate under the amount that needs to go through probate.  However, if probate has to happen in Maine, it’s not an especially egregious experience.

When a Maine resident dies (remember, every state has a different process), the original will and death certificate get submitted to the Probate Court along with information about what is believed to be the value of the decedent’s estate, an acceptance of the Personal Representative, and a general application answering questions about the decedent.  Assuming all is in order, the Court issues “Letters of Authority” that grant the Personal Representative (PR) the right to handle the estate assets.  The Court can help with publishing creditor notices and notifying MaineCare to submit claims.  The PR then works on getting an EIN for the estate, opening a bank account, handling debts, making sure taxes are appropriately filed and paid, and notifying heirs/devisees/beneficiaries of their interest in the remainder.  There may be special assets to handle, like retirement accounts, real estate, unique tangible items, or business interests.  The PR will generally not have to interact with the Court during this period of estate administration.  If everything goes smoothly, after all debts are paid, the PR distributes out the remaining estate assets and then notifies the court that the estate can be closed.  The whole process usually takes about a year, but it can be much longer if certain assets need to be liquidated or someone takes issue with the will itself or the PR’s administration of the estate.

“Living Probate” is a term some use to describe the court administration process that takes place when an incapacitated person or a minor needs a Conservator or Guardian appointed to manage their affairs. Living Probate is public can be more expensive and time consuming than probate of a decedent’s estate. In nearly all cases it is desirable and possible to avoid Living Probate by having powers of attorney and advance directives in place while competent.  However, life can surprise us and catch us unprepared, so having the Court able appoint a Conservator or Guardian is an important service.

The Probate Court oversees the guardianship of minors.  We have developed a “springing” power of attorney for parents of minor children. This power of attorney is signed now, but does not become effective unless you (and your spouse or the minor child’s other parent, if not your spouse) become incapacitated. This is sometimes called a Parental Delegation.  The power of attorney is triggered by your incapacity and appoints someone of your choosing to have custody and control of your child for up to twelve months (the legal maximum), until you either regain legal capacity or the court appoints a longer term Guardian and Conservator for the child.

Additionally, the Probate Court also handle matters like name changes and adoptions (areas of law that this office does not generally handle).

Rev 6/22

The information presented on this website is general in nature and not intended to be legal advice. No attorney-client relationship will exist with Jones, Kuriloff & Sargent, LLC unless agreed to in writing. Please contact us to discuss your particular situation.