When someone dies, their property and assets are called the “estate.” Probate is the process of distributing the estate according to a Will, or if there is no Will, according to the state “intestacy” law. The intestacy law tells the court what to do with the estate. Usually, under the intestacy law, only relatives of the decedent get anything from the estate.

This section will give you some basic information about the probate process.

What is probate?

Probate is the legal process that takes place after someone dies. To start the probate process, you need to file an “Application for Probate” in the probate court in the county where the decedent lived. In Maine, each county has its own probate court.

If there is a Will, it needs to be submitted to the probate court. The probate judge will decide whether or not the Will is valid. If the Will names a “Personal Representative” - sometimes called “Executor” or “Executrix” then the court will legally appoint that person to take care of the estate. If the Will does not name a Personal Representative, the court will appoint someone to do this job according to Maine law.

What does the Personal Representative have to do?

The Personal Representative is in charge of settling the estate. This means that they must: find and make a list of the things in the estate; follow the instructions in the Will if there is one; and pay any outstanding bills if there is enough money to do so. If the Will does not tell the Personal Representative what to do with property in the estate, then the Personal Representative must distribute that property according to the state intestacy law.

If the decedent did not have a Will, the estate is distributed according to Maine’s intestacy law.

The probate court will supervise the Personal Representative during the probate process.

Why does the estate have to go through probate?

The estate needs to go through probate in order to officially transfer title of the property in the estate to the person or people who inherit according to the Will or state law. Once this happens, other people cannot claim any right to the property. This includes people or companies to which the decedent owed money.

Does every estate have to go through probate?

No. Certain kinds of property can be passed without going through probate. Property owned with a “Right of Survivorship” automatically transfers to the joint owner at death and that person owns the property fully. Property can also pass through a Trust established during the decedent’s lifetime.

You should talk to an attorney to find out whether an estate needs to go through probate. If you are a Maine resident who is 60 or older, call the Legal Services for Maine Elders Helpline at 1-800-750-5353.

Do small estates have to go through probate?

In Maine, if an estate is worth no more than $40,000, it is considered a “small estate.” Small estates can be wrapped up quickly by filing a document called a “Small Estate Affidavit.” This is usually a simple process, but there are some legal steps that must be taken before you can wrap up a small estate.

You should talk to an attorney before you transfer any of the property in a small estate. If you are a Maine resident who is 60 or older, call the Legal Services for Maine Elders Helpline at 1-800-750-5353.

How long will it take to probate the estate?

It depends on the estate. Large estates can take longer to probate than smaller estates. But generally, probate doesn’t take very long in Maine. You should talk to an attorney to get advice on how best to wrap up an estate. The attorney will let you know if the estate needs to pass through informal or formal probate proceedings. Informal probate takes less time than formal probate, and is usually less expensive.

If you are a Maine resident who is 60 or older, call the Legal Services for Maine Elders Helpline at 1-800-750-5353 to talk to an attorney for free.

Resources

Legal Services for Maine Elders
If you are a Maine resident who is 60 or older and you have questions about the probate process, call the Legal Services for Maine Elders Helpline at 1-800-750-5353 to speak to an attorney for free.

If your spouse recently passed away and they did not have a Will and left behind a very simple estate, there are a few practical things that you need to do. This section will guide a surviving spouse through common property situations that arise with the death of a spouse.

If you have any questions about how your income or public benefits will be affected by the death of your spouse, call the Legal Services for Maine Elders Helpline at 1-800-750-5353 to talk to an attorney for free.

Cars - How to transfer the title

If the title to the car is in your deceased spouse’s name:

• You need to get a copy of the death certificate; the old car title; and the “Appointment as Personal Representative” from the probate court (if the estate is being probated). Take these items to your local Bureau of Motor Vehicles (BMV) and ask to transfer the title to your name. You will likely be asked to fill out additional BMV forms, including a new title application and an “Affidavit of Surviving Spouse.” There is no fee for a new title for a surviving spouse.

If the car is still being financed, you need to get permission to transfer ownership. Talk to the bank or finance company that owns the loan.

If the title to the car is in both your name and your deceased spouse's name (Joint Ownership):

• If the title to the vehicle is in both your name and your spouse’s name, you just need to bring a copy of the death certificate and the old car title to the BMV and fill out forms available at the BMV.

Bank accounts

A bank may continue to pay out on a deceased person's account for 10 days after the bank gets notice of the death.

Surviving spouses sometimes have a hard time getting into their deceased spouse's account. Here are a few helpful instructions to follow:

• If both your name and your deceased spouse’s name are on the account, this is called a joint account. There should be no problem with getting into joint accounts.
• “Payable at Death Accounts” name a person, called the beneficiary, to get the money in the account at the time of the account holder’s death. If your spouse named you as their beneficiary, you may be asked to show a photo ID.
• For a small estate, if the bank account was in your deceased spouse’s name only, the bank may require you to complete the “Small Estate Affidavit” process before giving you access to the account. You cannot start this process until at least one month after the death. If you would like help with this process, call the Legal Services for Maine Elders Helpline at 1-800-750-5353 to talk to an attorney for free.

For larger estates, a surviving spouse may gain access if they are named Personal Representative in the decedent's Will. You may need to show to the bank either the “Appointment as Personal Representative” from the probate court or the “Small Estate Affidavit.”

Safety deposit box

Banks have their own rules about safety deposit boxes. Some banks allow a survivor to open a decedent's safety deposit box to look for a Will. A bank employee will accompany the survivor to make sure only the Will is removed.

• For a “small estate,” a “Small Estate Affidavit” should permit access to the safety deposit box. Some banks have their own forms which serve the same purpose as the Affidavit.
• Other banks require the “Appointment of Personal Representative” from the probate court before allowing access to the safety deposit box.
• If the safety deposit box is in both your name and your deceased spouse's name, it depends on the bank’s policy. Some banks will allow you to access the safety deposit box without any special process; others seal the box and will only allow the Personal Representative access.

What to do if a debt collector is calling about your spouse’s bills

Maine law says that a husband or wife is NOT responsible for the bills of the other JUST because they are married. If you did not agree in writing to pay your spouse’s bills, you don’t have to pay them.

If a debt collector is harassing you about your deceased spouse’s debt, here’s what to do: Ask to see the written evidence that YOU, not your spouse, agreed to pay the debt. If they can’t show it to you, you don’t have to pay from your own property.

Remember to use common sense. If your spouse had a secured debt like a car loan or a house mortgage and you inherited the car or house, you must keep up on the payments on the debt. Otherwise, the creditor will take away the car or foreclose on the house. So, even if you are not legally responsible for the debt, you probably want to make those payments!

If you are a Maine resident who is 60 or older, call Legal Services for Maine Elders at 1-800-750-5353 to talk to an attorney for free.

Selling your house

If you owned your house as “joint tenants” with your deceased spouse, you need to do a few things before you can sell it. It should not take long to do, but it may require the help of an attorney.

• First, make sure you do not need the court’s permission to sell the house. Your attorney will contact the probate court to make this determination.
• Next, get a “Certificate of Discharge of Estate Tax Lien.” To do this, your attorney must file two forms with Maine Revenue Services: an Estate Tax Return stating that no estate tax is due; and, the Certificate of Discharge itself that describes your house and says there’s no estate tax due. Maine Revenue Services signs the Certificate and returns it to your attorney.
• Once your attorney files the original Certificate with the Registry of Deeds, you are free to sell the house.

If you are a Maine resident who is 60 or older, call the Legal Services for Maine Elders Helpline at 1-800-750-5353 to talk to an attorney for free.

Resources

Legal Services for Maine Elders 
If you are a Maine resident who is 60 or older and you need help dealing with a problem arising from the death of a spouse, call the Legal Services for Maine Elders Helpline at 1-800-750-5353 to speak to an attorney for free.

Maine Office of Vital Records 
To obtain copies of the death certificate call 207-287-3181 or visit the Office of Vital Records at:
244 Water Street, SHS #11
Augusta, ME 04333-0011

Area Agency on Aging 
To find out if you are eligible to receive survivor benefits, or to get help dealing with your deceased spouse’s benefits, call your local Area Agency on Aging at 1-877-535-3771.

Social Security Administration
To inform the Social Security Administration of the death, call 1-800-772-1213. To find out if you are eligible to receive survivor benefits, click here to visit the Social Security website on the topic.

Veteran’s Affairs
Call the Veteran’s Affairs office at 1-800-827-1000 to inform them of the death. To find out of if you are eligible to receive survivor benefits, click here to visit the Veteran’s Affairs website on the topic.

Maine Suicide Prevention Program - Hotline
If you are concerned about yourself or about someone else, call the crisis hotline at 1-888-568-1112. If you are not in Maine, call the National Suicide Prevention Lifeline at 1-800-273-TALK (8255). For more information, visit the Maine Suicide Prevention Program website by clicking here.