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PROBATE

Death is inevitable

Sullivan Law can help you navigate the Probate process

Probating an Estate

The one thing nobody can avoid is death.  Hopefully you have your estate planning in order.  Not necessarily for yourself, but for those you leave behind.

With an original Will a probate matter can be set up easily and quickly with the court.  Do I have to probate my loved one's estate?  Probably.  A surviving spouse may be able to avoid probate, but when someone dies without a surviving spouse, probate is necessary. This is to give someone the authority over the estate, including authority to file a final tax return, if necessary, the court will set a four-month credit claims period and the personal representative will deal with any claims, and then assets can be sold and distributed by the personal representative.

If you skip probate, you may leave a cloud on title of property and simply create a mess that is not that difficult to deal with now but might be difficult to deal with once considerable time passes.

Sullivan Law is happy to help you get your probate estate filed in court and the personal representative appointed.  The court does charge a filing fee based on the value of the estate.  (link the fees based on estate value)

We can certainly help if there is no Will or the legality of a document claimed to be a Will is in dispute.  The process will involve a bit more of a court process, but again, not a big deal for Sullivan Law to handle for you.

If there is no Will, a surviving spouse will likely get most or all of the estate, and the next in line heirs are children, if there are any, then parents if they are living, then to siblings.  If you are reading the page and do not have a Will, click on the Estate Planning page and get it done so your loved ones can have a simpler process.

How much does it cost to probate an estate?  It all depends on if there is an original Will, what property exists, if there are any disputes, if there are any claims from creditors, and other things that need to be dealt with.  Most estates will cost at least $5,000 to administer but getting to $10,000 in costs or even higher is not uncommon.  The assets of the estate will pay Sullivan Law for administration.  If the assets are under $50,000 we can likely draft a small estate affidavit and get everything done for $1,500 or under.

Estates with a Spouse, but no Will, can get complicated​

In Maine, a surviving spouse has many widow’s rights, including:

  • Intestate Share

  • Elective Share

  • Homestead Allowance

  • Exempt Property

  • Family Allowance

  • Omitted Spouse Rights

The Maine Probate Code was extensively revised in 2019, changing the rights of surviving spouses.

Surviving Spouse Rights In Maine When There Is No Valid Will or the current spouse is left out of the Will – Intestacy

When a decedent dies without a valid will, they have died intestate. When a spouse is not provided for in a Will, Maine Law still provides for the surviving spouse. Maine law provides for a surviving spouse when the decedent did not leave a valid will. When someone dies intestate, Maine law decides the distribution of the estate. The share of a surviving spouse in Maine depends on the surviving heirs of the decedent.  Maine Probate Code 18-C M.R.S. § 2-102.

Entire Estate to Surviving Spouse

If the decedent was not survived by any issue or parents, then the surviving spouse has the right to the entire intestate estate.

The spouse also receives the entire estate if all of decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent.

Surviving Spouse Gets Partial Estate

A surviving spouse in Maine is entitled to the first $300,000 plus 3/4 of any balance of the intestate estate if no descendant of the decedent survives the decedent, but a parent of the decedent survives.

A surviving spouse in Maine is entitled to the first $100,000 plus 1/2 of any balance of the intestate estate if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent.

A surviving spouse is entitled to 1/2 of the intestate estate if there are surviving descendants one or more of whom are not descendants of the surviving spouse.

Surviving Spouse Rights To Allowances and Exemptions

A surviving spouse whose deceased spouse died domicile in Maine may be entitled to the following allowances and exempt property:

(The above numbers have all increased by the Consumer Price Index and change on an annual basis).

Surviving Spouse Elective Share Rights – Election Against Will

Under Maine law, a surviving spouse has a right of election to take an elective share of his or her deceased spouse’s estate. This is true, even if the surviving spouse was intentionally disinherited from the estate plan. The surviving spouse may elect to take an elective share amount equal to 50% of the value of the marital-property portion of the augmented estate.  Maine Probate Code 18-C M.R.S. § 2-202.

Augmented Estate

The augmented estate consists of the sum of the decedent’s net probate estate; decedent’s nonprobate transfers to others (2-205); decedent’s nonprobate transfers to the surviving spouse (2-206); and the surviving spouse’s property and nonprobate transfers to others (2-207).

The value of the marital-property portion of the augmented estate consists of the sum of the augmented estate multiplied by a percentage ranging from 3% to 100%, determined by the length of the marriage, as follows:

Length of Marriage

Percentage

Less than one year

3%

One year but less than 2 years

6%

Two years but less than 3 years

12%

Three years but less than 4 years

18%

Four years but less than 5 years

24%

Five years but less than 6 years

30%

Six years but less than 7 years

36%

Seven years but less than 8 years

42%

Eight years but less than 9 years

48%

Nine years but less than 10 years

54%

Ten years but less than 11 years

60%

Eleven years but less than 12

68%

Twelve years but less than 13 years

76%

Thirteen years but less than 14 years

84%

Fourteen years but less than 15 years

92%

Fifteen years or more

100%

Maine Probate Code 18-C M.R.S. § 2-203.

Deadline for Election

The surviving spouse must make the elective share election within nine (9) months or decedent’s death, or six months after the probate of the decedent’s will, whichever is later.  If an extension is requested before the deadline has passed, the deadline may be extended.  Maine Probate Code 18-C M.R.S. § 2-211.

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In summary, it is complicated. Get your Will done soon!

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