Probate

“Probate” is from the Latin word for “prove.” It is the process by which a will is proven to be legitimate and, therefore, recognized to control the distribution of property belonging to the person who made it. In Maine, two kinds of probate exist: “formal” and “informal,” of which informal is by far the more common.

In informal probate, the decedent’s will, together with a statement of facts about the decedent’s family and assets, are filed with the Register of Probate in the county where the decedent lived. The Register is not a judge; he or she is an administrative official. If the decedent has been deceased for at least five days and if no one appears to challenge the validity of the will, the Register will admit the will to probate immediately. The personal representative (executor or executrix) of the decedent’s estate is typically appointed by the Register of Probate simultaneously with the probate of the will. The fees charged by the Register are based on the value of the decedent’s assets and seldom exceed $1,000.

After the informal probate of a will, the Register of Probate sends a Notice of Informal Probate proceedings to all the “devisees” under the decedent’s will (devisees are the people to whom the will leaves property) and all the “heirs” of the decedent (heirs are the people who would have taken the decedent’s property had the decedent died without a will). The Notice informs these people that the will has been probated informally and tells them that they can contact the Register for additional information.

It is essential that the personal representative provide the Register of Probate with correct names and addresses for all the decedent’s devisees and heirs. If any of the Register’s Notices are returned because it is undeliverable, informal probate may be revoked.

Within 30 days after a personal representative is appointed by the Register of Probate, the personal representative must notify all the decedent’s devisees and heirs of his or her appointment. For personal representatives who are our clients, we usually fulfill this obligation by means of a letter with the requisite Notice of Appointment. This Notice gives all devisees and heirs the information that the personal representative is required by law to provide them, such as the personal representative’s name and the name and address of the Probate Court where the probate records for the estate are located. In letters to devisees we include a copy of the part of the decedent’s will that applies to them.

If correct names and addresses for all the decedent’s heirs and devisees cannot be found, or if a dispute arises about the validity of the decedent’s will or about who should act as personal representative, informal probate may not be possible.

If informal probate is impossible, formal probate must be used. While the Probate Court’s fees for formal probate are the same as those for informal probate, formal probate takes longer to accomplish, involves more work for the personal representative and the personal representative’s counsel and, therefore, is more expensive. It is possible (and sometimes appropriate) to switch from informal probate to formal probate and back to informal probate again while administering an estate.