Probate is the legal process by which the state assures that debts, claims and taxes are paid and that the solely owned property of a decedent are distributed according to the terms of the decedent’s Last Will and Testament, or if the decedent died without a Will (intestate), that the decedent's property is distributed according to the state's intestacy law.
If you want to learn more about the probate process, please see the links below.
The Probate Process in Maine:
The Probate Process In Massachusetts:
How Long Does (Could) Probate Take?
While one can outline the basic process all probates must face, each probate is unique. Some probates are "asset driven" (meaning that the estate's assets predominate the time and attention of the process ) some probates are "tax driven" (meaning that it is the income and estate tax issues raised by the estate that predominate the time and attention of the process), some probates are driven by the personalities involved and some probates are a combination of all of the above.
Effective estate planning can help head off issues that slow down or complicate any given probate but the overall process still has to run a general course that normally lasts at least a year or two.
Different Approaches to Probate - How Does Your Attorney Probate?
Some law firms have a hands on probate practice, meaning the law firm is the center of the probate case, the law firm controls the check book, the law firm prepares all the tax returns, the law firm decides who and when property gets distributed, the law firm...fill in the blank.
It is not unusual for an attorney at XYZ firm that drafted the estate plan for mom or dad to serve as the Personal Representative of the estate (AKA the executor) and also as the attorney for the estate. Often this situation is repeated if there is a trust.
Our firm has a different approach, a more client centered approach, to probate matters and a "hands off" approach when determining who should serve as the Personal Representative or Trustee of a decedent's estate. We prefer to limit our role to serving as attorney for the Personal Representative (AKA the executor), to serve as an advisor and work to inform and assist rather than to control and direct. We believe most clients have a friend or family member that is well suited (when properly advised) to handle the administration of a probate case. We believe that the cost of estate or trust administration, with proper guidance, can be reduced when the attorney does not serve as the Personal Representative or Trustee, when the attorney does not control the checkbook, when the attorney informs and assists the Personal Representative with his or her performance of various estate administration tasks rather than simply taking over his or her role.
For this reason, and others, we generally do not advise clients to name an attorney with our firm to serve as Personal Representative, or as a Trustee. Instead, we seek to preserve our legal and ethical independence and objectiveness by remaining as a trusted advisor instead of assuming day to day control of a decedent's estate or decedent's trust.
There are, of course, circumstances where an attorney might be the best party to serve as a Personal Representative or Trustee, but we believe that those circumstances should be the exceptions, not the general rule.
How Do You Avoid Probate?
At death, assets can pass to others in a number of ways. A Will, which must be probated (validated) to pass title, is only one (1) way assets pass at death. When explaining the various ways assets can pass at death, I sometimes like to use the following chart to help clients visualize the different "vehicles" by which assets travel.
If you want to avoid the probate toll booth, you need to make sure your assets travel at death via some vehicle other than your common, trusty but rusty, Last Will & Testament. As you can see from the chart above, there are a number of options to choose from, each of which has it own advantages and/or disadvantages. The consistency, or thoroughness, of your apporach will determine if your estate avoids probate, as it only takes one (1) assets to trigger a probate.
Probate Courts Where We Regularly File
York County Maine Probate Court
Monday - Friday
8:00am - 4:30pm
Electronic probate filings in York County, Maine are now allowed and soon, for attorneys, will be required.
Many Maine probate forms are online at http://www.maineprobate.net/search.html