What Is Probate, Really?

If you asked a person 5 things that a lawyer does, I bet on that list would be the word “Probate.” But what does that word really mean? If you listen to the TV ads and surf the web, you probably think that probate costs too much in money and time, and therefore it is something to avoid. In many states that may be true. But I think that here in Maine the situation is different.

A simple definition of probate is “the process of winding up a deceased person’s affairs and properly distributing his or her assets.” The process in Maine is done under a version of the “Uniform Probate Code.” This code makes it relatively simple to conduct the probate of a person’s estate. A number of years ago, I was “executor” of my aunt’s estate in Massachusetts, it seemed that every time I wanted to do something, (list her house, sell her house, distribute some of her assets, get into her safe deposit box, etc.) I needed to ask the Probate Court for permission.

In Maine, it is quite different. After a person dies, a person (usually someone named in the deceased person’s will) applies to become “personal representative.” Unless there are unusual circumstances, it is an informal application, and the Register of the Probate Court has the authority to make the appointment. Once the appointment is made, the personal representative has authority to take such action that may be necessary to sell assets, pay bills, settle claims, and distribute property to the appropriate parties. Such actions must be in the beneficiaries’ best interest, not the personal representative’s interest. This is called a “fiduciary duty,” meaning a person is not acting in his or her self-interest, but in the interest of someone else.

Most estates in Maine follow this informal route, and are probated fairly simply, and without controversy. There are a few rules about making a list of the assets and debts of an estate (inventory), how to handle bills presented to the personal representative, and providing notice to beneficiaries when real estate is sold. If a creditor or a beneficiary does not like what a personal representative has done or is doing, however, they can always ask the Probate Judge to review the situation and make a decision. This is the exception, and not the rule.

One other point, if a person has an estate with no real estate and of less than $20,000 in value after liens, then informal probate might be avoided. An interested party can sign a “small estates affidavit” 30 days after the date of death, and the party who signs the affidavit can collect the property, pay the bills, and distribute the assets. This person must still exercise fiduciary duties when collecting the property, paying the bills and distributing the assets.

Thus the Uniform Probate Code here in Maine allows for a relatively simple method of winding up the affairs of a decedent. Probate in Maine is not something to fear or avoid. Many times it is less costly than creating the legal framework to avoid probate.

This article is meant to be informative only, and is not intended to be legal advice for any person. It cannot be relied upon for any specific situation. You should consult with an attorney and describe the facts of your particular situation and obtain his or her advice before taking action in a specific case.

Ronald G. Aseltine, Esq., practices law at 42 Main Street, Livermore Falls, ME. He also has an office in Wilton.