Category Archives: Probating an estate

A stitch in time saves nine

By Patrice A. Putman, Maine elder law attorney

The old saying “A stitch in time saves nine.” makes a lot of sense. Unfortunately, too often, people don’t know that there may be a legal “stitch” needed. Below is a situation that I’ve seen. Luckily, if discovered and fixed early, a client can save a lot of time, money, and frustration.

Most married couples own their home as “Joint Tenants”. This means that when one spouse dies, the property automatically becomes owned entirely by the other spouse. Nothing needs to be done to accomplish the change in ownership. In order for this transfer of ownership to the surviving spouse to happen automatically, the deed into the spouses must expressly state the concept that the spouses own as “joint tenants” or that the surviving spouse is to automatically become the sole owner of the home.

It is also possible for a married couple to own their home jointly, but as “tenants-in-common”. The home will be owned by the spouses as tenants-in-common if the deed is not explicitly a “joint tenancy deed”. If the home is owned as tenants –in-common, the surviving spouse does not automatically end up with ownership of the entire home. Rather the half owned by the deceased spouse must go through probate and title passes according to the will of the deceased or through the laws of succession (if there is no will). The property must go through probate, a personal representative must be named and the property must then be deeded according to either the Will or intestate laws.

There are times when a new widow or widower who thought she/he owned the property as a joint tenant finds that she/he did not.

Here is a hypothetical: Husband and wife own property together. The deed says “I seller, give to you, husband and wife, a piece of property.” This deed is a tenancy in common deed, something which the spouses didn’t understand and didn’t intend. Husband dies. Wife goes to a lawyer to see if she needs to do anything with regard to probate. All the bank accounts were jointly owned (no probate needed), life insurance had a beneficiary listed (no probate needed), the IRA has a listed beneficiary (no probate needed), cars were owned jointly (no probate needed). Then the lawyer asks to see the deed, and sees that the deed is not a joint tenancy deed. Now a probate estate must be opened, heirs must be notified, if there is a Will, the original must be found and filed, probate and attorney fees must be paid and a new deed will need to be executed and recorded. If the Will says “all to my spouse” then, after the personal representative has been appointed, a new deed can transfer the deceased spouse’s share to the spouse. If there is no Will or if the Will leaves part of the estate to others, the widow who thought she owned her house entirely, may now own it partially with children, step-children or others. Either way, things just got a lot more expensive and complicated.

Here’s the simple solution: Go look at your deed(s). If your deed(s) say you own the property as “joint tenants” or if the deed is clear that the surviving owner is to be the sole owner, then you are joint tenants and when one of you dies, the property will be owned entirely by the other automatically. If your deed is not a joint tenancy deed, then you and your spouse own as tenants in common. Once you understand how you own the property, then you can decide whether it fits your needs, or whether you need to see an attorney to get advice on whether your deed fits your needs. If a fix is needed, it’s an easy fix while both of you are alive. It may be needlessly expensive and upsetting if you find out after your spouse has died that the form of ownership didn’t work to your best advantage. This is clearly a situation where a stitch in time saves nine. Go read your deed! Make sure it says exactly what you need it to say, so that it does exactly what you want it to do. If you are not sure, get help sooner rather than later!

The information provided here is for educational purposes only. It should not be construed as rendering legal advice or offering an answer to a specific legal problem.

Using a Revocable Living Trust to Avoid Probate

“Probate” – a word that creates fear and dread in the hearts of many. (For more information on what “probate” is, see my previous blog, “What is Probate?”)  But the truth is:  While the probate process in some other states is complex, time consuming and expensive, Maine has a streamlined probate process which for most people is relatively fast and is no more expensive than alternatives to probate.

 Reasons to avoid probate.  Nevertheless, in some instances, it can make sense to make arrangements to avoid probate.  This is true if: 

  • You have real estate outside of Maine; or
  • You have concerns about privacy and want to keep the details of your estate plan private.

 Ways to avoid probate. A number of simple ways can be used to avoid probate, such as: 

  • Putting real estate, bank accounts and investment accounts in joint names;
  • Designating beneficiaries on investment accounts, retirement plans, annuities and life insurance; 
  • Using “transfer on death” designations (“TOD” or “POD”) on accounts.

 Using a Revocable Living Trust to avoid probate. A “revocable living trust” may also be part of a plan to avoid probate.   This is done as follows:   A lawyer writes up a trust document.   Under this document, you name yourself as trustee. This means that during your life, and for as long as you are mentally competent, you remain in control of your assets.  You are able to add assets to or remove assets from the trust, spend money from it, change the terms of the trust, or revoke the trust altogether. You also name a “successor trustee”:  a trusted person (such as a family member or bank) to take charge of the assets when you die, or possibly sooner, if you become mentally incompetent.  When you die, the successor trustee pays bills and then distributes money and property according to the directions in the trust document, to the people you name in the document and in the amounts directed by you.  This can all be done without anyone having to file papers in the probate court. This preserves your privacy.  And if you have real estate outside of Maine, it avoids the necessity of filing for probate in another state, which can indeed be expensive.

 When considering whether to have a trust of this type prepared, be aware that the fees will be higher than if you go with a simple will.  This is because, in addition to the drafting of the trust document, deeds must be prepared, transferring your home and other real estate to the trust. Your bank and investment accounts will also need to be transferred to the trust, and beneficiaries will need to be changed on your retirement plans and life insurance.    This will all require more time on the part of your attorney, for which you should expect to be billed. 

(This blog is by attorney Sally M. Wagley, a Maine elder law attorney with the firm of Levey & Wagley, P.A., in Winthrop, Maine.  The information provided on this website is for informational and educational purposes only.   This information should not be construed as rendering legal advice or offering an answer to a specific legal problem.)

How to Probate an Estate in Maine

What you should know about the probate process. “Probate” is the process under which the assets of a deceased person are distributed.  Maine has a streamlined probate system.  In most cases, no judge is involved, unless there is disagreement between heirs, a disagreement involving creditors or if there are irregularities in the execution of the Will.  This is called “informal probate.”  Simple paperwork is submitted to the Probate Court, which is then processed by the court staff. 

Appointment of Personal Representative (executor).  The first step in the probate process is the appointment of a Personal Representative (referred to by many as the “executor”). These are the steps:

  • A family member or other interested person will submit a simple probate application  to the Probate Court for the county in which the deceased lived or the county in which the deceased owned property. The application asks for information concerning the deceased, the money and property in the estate, the deceased’s family and the people named in the Will.
  • If the deceased left a Will, then the original Will is also filed with the Court.
  • The family member or interested person pays a filing fee, which is based on the value of the estate.  (If that person has to pay from his own pocket, he will eventually reimbursed from the deceased’s funds.) 
  • A Court employee reviews the information in the application, and if there is a Will reviews it to determine whether it was properly witnessed and executed. 
  • If everything is in order, the Register of Probate (a court official) issues “Letters of Authority” appointing the Personal Representative (referred to by many as the executor), who will be in charge of administering the estate.  If the deceased left a Will, then the Personal Representative named in the Will is appointed.  If there is no Will, then the next of kin is appointed. 
  • This step usually takes a week to a month, depending on the Maine county in which the application is filed.

The Personal Representative’s job, step by step.  The Personal Representative is the “boss” of the estate.  Once appointed, the Personal Representative will have complete control of the deceased’s accounts and property, and can get to work.  These are the steps:

  • While the Personal Representative is in complete control of the estate, he or she has a duty to do so in the interest of the beneficiaries and to keep them informed of what is going on.
  • The Personal Representative first prepares an “inventory” (list) of the assets belonging to the deceased, with their values as of the date of death, and distributes the inventory to the heirs and the people named in the Will.
  • The Personal Representative pays all bills as they come in.  The Personal Representative will also wait four to five months for other creditors to submit their bills and should usually not distribute assets to beneficiaries until that period is over.  (Creditors have a period of four months after the Probate Court publishes a legal notice in the newspaper concerning the opening of the estate.)
  • The Personal Representative gathers and distributes personal property (furniture, dishes, jewelry, tools and the like) to the beneficiaries and will sell or dispose of items not wanted by the beneficiaries.
  • If there are investments such as stocks and bonds, the Personal Representative may sell the investments.
  • If there is real estate to be sold, the Personal Representative gets the property ready to sell and then lists it for sale.  If the real estate is to be distributed to beneficiaries, the Personal Representative will deed the property to the beneficiaries.    
  • The Personal Representative files the deceased ’s final income tax return and may also, depending on the income to the estate, file a separate tax return for the estate.  
  • An estate tax return may also be filed, depending on the size of the estate and whether there is real estate.   (Only estates of over $1 million are subject to estate tax.)
  • After all bills have been paid, the Personal Representative may begin to make distributions to the beneficiaries.  The Personal Representative may distribute the estate all at once or may make distributions in installments. 
  • Once the assets have been distributed, the Personal Representative prepares a final account of all income, expenses and distributions, and distributes the account to the beneficiaries.  
  • Finally, the Personal Representative closes the estate by filing a sworn statement with the Probate Court.
  • The Personal Representative is entitled to “reasonable compensation” for his or her services.  The amount of pay the Personal Representative gets depends on the amount of time spent, the degree of skill required by the particular activity, and any special expertise the Personal Representative has.    

Is the Judge ever involved in Probate?  If the Will was not properly executed or if there is a dispute among beneficiaries or a dispute involving creditors, the probate process may become more complicated.   Before the Personal Representative is appointed and the Will declared valid, there will have to be a hearing in front of the Probate Judge.  In rare instances, the Personal Representative may be supervised by the Court and may not be permitted to make distributions without Court approval.  In most instances, however, beneficiaries will find a way to agree without involving the Court.

Can you probate a Will without an attorney?  Some people choose to handle the probate of an estate without an attorney.   However, others find that getting the help of an attorney gives them peace of mind, knowing that the job has been done correctly, and minimizing stress after the death of a family member.