Disclaimer: This article is for educational purposes only and does not constitute legal advice. Consult a licensed Maine attorney for guidance tailored to your situation.
Detailed Answer
In Maine, certain assets pass outside the probate process by operation of law. For example, property held as joint tenants with right of survivorship or tenancy by entirety1, real estate transferred via a valid transfer-on-death (beneficiary) deed2, life insurance proceeds, retirement accounts with designated beneficiaries and payable-on-death bank accounts all bypass probate. However, most of the decedent’s remaining assets—bank accounts not payable on death, personal property, and real estate held solely in the decedent’s name—form the probate estate.
Under the Maine Uniform Probate Code, the probate estate includes all property in which the decedent had an interest at death, unless it passes outside administration. See 18-B M.R.S. §2-501. Property not subject to administration is listed at 18-B M.R.S. §2-502.
Even if your real property passes automatically to a joint tenant or beneficiary, the will still requires probate to:
- Validate the will and confirm the decedent’s intent
- Appoint a personal representative (executor) to gather and distribute assets
- Pay debts, taxes and final expenses in the proper order
- Obtain clear title for property held solely by the decedent
If no probate occurs, anyone holding sole-title assets lacks statutory authority to transfer or title property, settle debts or access accounts. Probate grants those powers under 18-B M.R.S. §3-201.
When all of a decedent’s assets pass outside probate, you may qualify for a small estate summary process. Estates worth $40,000 or less (after funeral expenses) may avoid full administration under 18-B M.R.S. §3-1102.
Helpful Hints
- Inventory all assets to determine what must pass through probate.
- Review property titles: joint tenancy, tenancy by entirety or beneficiary deeds.
- Use a transfer-on-death deed (33 M.R.S. §2165) to avoid probate on real estate.
- Consider beneficiary designations on bank accounts and retirement plans.
- Check if your estate qualifies for Maine’s small estate affidavit procedure.
- Consult a Maine probate attorney to confirm procedures and deadlines.
1 Joint tenancy and tenancy by entirety are governed by 33 M.R.S. §701 and 33 M.R.S. §703.
2 See transfer-on-death deeds at 33 M.R.S. §2165.