What Actually Is Probate In The State Of Maine?
The Probate Courts deal with several important matters affecting individuals and families. One aspect of the probate process addresses the final administration of the estate of a deceased person. The issues that are dealt with in probate involve the distribution of a decedent’s assets and payment of any claims brought against the estate. Other areas of probate have nothing to do with estates of decedents. They deal with guardianships and conservatorships of minors and guardianships and conservatorships of incapacitated adults.
When dealing with an estate, the process begins by filing a petition requesting the appointment of a personal representative (PR). There are two ways this can be done. One way is an informal filing and the other way is formal. An informal process will never go before a judge. It is handled by the registrar of probate. An example of an informal process occurs when the decedent has a last will and testament nominating a person to be the PR of the estate. If there is no objection from any heir or devisee, the person nominated is appointed as the PR. Even if there is no last will and testament a petitioner can be appointed as PR provided there is no objection. The personal representative performs their duties and administered the estate as directed by the decedents will or by statute and absent some objection by an interested person; there is no further court involvement.
A formal process goes before the judge and is commenced by the filing of a petition. There could be a dispute about who should be the PR of the estate, a dispute over a claim filed against the estate for money owed to a creditor, a dispute over the division of assets, a question about the validity of the will or some other sort of controversy. Unless the parties reach agreement, all formal matters result in a trial before the judge who will issue a final binding decision.
Matters involving guardianships of minors occur when an interested party claims the child is in an “intolerable living situation”. Unless the parents’ consent to a guardianship, the petitioners would need to establish by clear and convincing evidence that an intolerable living situation exists and it is in the best interests of the child that the petitioner be appointed guardian. A guardianship temporarily suspends the parent’s rights as a parent.
Conservatorships are similar to guardianships but are limited to financial matters. Conservatorships are often necessary if a child who is listed as a beneficiary on a life insurance policy. The conservator manages the child’s funds until the child reaches adulthood.
Guardianship of incapacitated adults occurs frequently. The main issue is whether a person is incapacitated and unable to make decisions for themselves. The law requires the exploration of the least restrictive way to deal with a person in a difficult physical or mental situation before a guardianship is granted. If there is a way to assist a person short of a full guardianship, then that is best.
Does A Decedent’s Estate Always Have To Go Through Probate?
An individual can take steps to minimize the need for probate. The use of joint tenancy accounts is an example. Holding title to real estate as joint tenants will eliminate the need for probate. If one of the tenants passes, the other automatically obtains title as a matter of law. The same would be true of a simple joint checking account. There is no need for probate; title transfers automatically.
Can Someone Navigate The Probate Process On Their Own Without An Attorney?
If you happen to have the knowhow and the skills required, there is nothing that says you cannot do your own probate. However, if you don’t know exactly what you are doing, you need the assistance of a lawyer.
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