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Decedents' Estates in
Maine
The Probate Process - © Jeffrey P. Buhrman 2006
In General - Probate is the process of validating a deceased
person’s will and appointing a personal representative to manage her
estate and settle her affairs. A personal representative is the legal
representative or agent of the deceased person during the probate
process. Elsewhere. That agent is known as the executor or
administrator.
In Maine, the probate process begins by filing the original will and
several court forms with the local register of probate. If the decedent
died without a will, the laws of intestacy apply to determine how the
estate is to be divided among the deceased person’s family and
relatives. Among the forms filed with the register is a certificate of
value which estimates the dollar worth of the probate estate, discloses
whether or not a federal estate tax return will be filed, and estimates
the Maine estate tax, if any. Basically a person’s probate estate
includes all of his property and property interests, such as money,
stocks, bonds, real estate, automobiles, and furnishings, owned by him
in his sole name. The probate estate passes to the deceased person’s
successors according to the terms of his will or by the laws of
intestacy, if he had no will.
Probate Fees - Upon the value of the probate estate reported in
the certificate of value the register assesses a probate fee. Currently,
the lowest probate fee is $15 for an estate of $10,000 and under, For
estates over 2.5 million the probate fee is $800 plus $50 for every
increase in value of $500,000 or less. Other minor fees are assessed by
the register for publishing a notice to creditors in a local newspaper,
summarizing the probate documents for the registry of deeds, and so
forth.
Bond - In some estates a personal representative’s bond or a tax
bond is required. Essentially, a bond is an insurance policy. Since the
cost of a personal representative’s bond is a significant expense, many
wills specifically state the bond is not required. Unless waived by the
will or otherwise fixed in a court order, a personal representative’s
bond must be of sufficient value to insure the full worth of the probate
estate plus one year’s income.
A tax bond is mandatory whenever Maine estate tax is due and the probate
estate does not include real property against which an estate tax lien
can be imposed. When required, the tax bond must be of an amount large
enough to insure payment of the estimated Maine estate tax.
Commissions and Attorney’s Fees - Some personal representatives,
such as close family members, work without charge; others collect a
commission for their work. Personal representative’s commissions are
calculated primarily on an hourly fee basis, rather than as a percentage
of the value of the probate estate. The same rule holds true of
attorney’s fees for estate administration; they are calculated primarily
on an hourly fee basis. Other factors that may influence the size of
commissions or attorney’s fees charged to an estate are the novelty and
difficulty of the matters involved, the skill required to do the job
properly, the likelihood that the job will preclude the person employed
from other jobs, the fee customarily charged in the local are for
similar services, the amount of money involved, the results obtained,
the time limitations imposed on the job, and the experience, reputation
and ability of the person performing the services.
Formal and Informal Proceedings - In Maine, probate may carried
out formally or informally. Informal probate usually is sufficient, and
formal probate is reserved for disputed cases. An application for
informal probate of a will and appointment of a personal representative
is made to the register of probate, who acts as the clerk of the probate
court. If the documents are in order and there are no legal issues to be
resolved, the register will approve the application and appoint the
personal representative. A disadvantage of informal probate is that the
will and the appointment of the personal representative can be
challenged as late as one year after the estate is closed. In contrast,
formal probate of a will and appointment of a personal representative is
obtained from the probate judge after a court hearing. Once a court
order is issued in a formal proceeding, the will and the appointment of
the personal representative cannot be challenged by anyone who received
notice of the hearing.
Duties of Personal Representative - The appointment of a personal
representative, whether obtained from the register or the judge, gives
the personal representative legal authority to collect, manage and
distribute the decedent’s assets. With this authority comes related
duties. A personal representative must protect estate assets, assert the
claims of the decedent, defend the estate in court, pay the decedent’s
debts from the decedent’s assets, file the decedent’s final income,
gift, and estate tax returns as needed, and otherwise carry out the last
will and testament. When necessary, the personal representative may sell
real estate and other assets and change how assets are invested.
Notice to Heirs and Creditors - The personal representative must
give notice of the probate proceeding to each heir of the decedent, each
person or institution named in the will to receive a gift, and the
creditors of the decedent. A deceased person’s heirs are the people who
would be entitled under Maine law to the decedent’s estate had he died
without a will. These heirs have the right to challenge the will as
invalid. Creditors of the decedent have a short period of time (ranging
from four to nine months) to present a claim against the estate for
payment of the debt. If they fail to act, their claim is barred, meaning
it cannot be enforced in a court of law. Since a personal representative
may be personally liable for mispayment of claims, major distributions
of money or property from the estate usually are delayed until all
creditor claims are assessed, paid or barred.
Inventory - Another important duty of the personal representative
is to inventory the probate assets, using date of death values for each
item. Any person having a legal interest in the estate is entitled to a
copy of the inventory on request. The people with the proper legal
interest include the heirs, the persons named in the will and creditors.
Professional appraisers must be hired to fix the value of real estate,
privately traded securities, fine art, jewelry, and antiques. Date of
death values of publicly traded stocks, bonds and other investments
usually can be obtained from the organization holding the asset.
Commonly the inventory is not filed with the probate court.
Accounting - A personal representative must account for his
handling of the estate. The accounting typically includes the inventory
value of all assets, a list of all income received and expenses and
claims paid, and a calculation of the money or property left to be
distributed to the decedent’s beneficiaries. Any person who has a legal
interest in the estate is entitled to a written copy of the account.
Generally accountings are not filed with the court.
Distributions - In “trouble-free” estates, most of the assets can
be paid or distributed to the beneficiaries as soon as six to nine
months after date of death. A small balance of cash is left in the
estate to settle remaining or unexpected expenses. If there are disputes
among the beneficiaries, or if the estate is involved in a court case,
major distributions may be delayed until those issues are resolved. Open
tax matters also can delay distributions.
Closing the Estate - After the last of the debts, claims,
expenses and taxes are paid, a final distribution is made, reducing the
estate’s holdings to zero. Following that, and once nine months has
elapsed from date of death, the personal representative may file a
closing statement with the probate court. In the closing statement the
personal representative swears that he has fulfilled all of his duties.
One year after this statement is filed, the personal representative is
freed from all duties and responsibilities with regard to the estate.
DISCLAIMER: This web site is provided
for general information only. It is based on Maine law. The law may
apply differently to your specific situation. Readers should seek
competent legal counsel for solutions to their individual problems and
advice about their individual situation. This web site by itself does not
establish an attorney-client relationship, nor should anything in this
web site be considered legal advice. |
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