The Probate Process for Real Estate in Maine

When a resident of Maine dies, it is likely that his or her estate will likely require probate. Probate is the process by which a property owner’s estate is transferred to the persons entitled to inherit it. All property which does not transfer through means of a survivorship interest, trust, or beneficiary designation is subject to probate. In Maine, the probate code is codified at Title 18-A of the Revised Statutes.

When a decedent dies with a will, he is said to have died testate, and assets are distributed to his successors pursuant to the terms of the will. When a decedent does not leave a will, he is said to have died intestate. Intestate estates are administered pursuant to Maine’s laws of intestate succession.

The person appointed by the probate court to administer the decedent’s estate is called a personal representative (PR) in Maine. Some states may use the terms “executor” or “administrator” to refer to a personal representative; “executor” is used to refer to a PR named in a decedent’s will, while “administrator” is used to refer to a PR selected by the court. The probate court issues letters authorizing the PR to act on behalf of the estate.

In the course of administration, a PR may need to convey real property, whether through sale or distribution. In some cases, the PR may be instructed by the decedent’s will to sell real property, or may need to sell real estate in order to raise money needed to pay the estate’s debts. When the estate includes real property, the register of the probate court is required to record a certificate with the register of deeds pursuant to 18A M.R.S. § 1-504.

Permission to sell property must be granted to the personal representative by the decedent’s will. If the decedent died intestate, the PR will need a court order for sale before making the sale. In compliance with the probate code, notice must be provided to each successor in interest ten (10) days prior to the sale, unless the decedent’s will waives this requirement.

To legally transfer title, the PR executes a deed. Maine identifies four statutory deed forms for use by personal representatives, codified at 33 M.R.S. § 775. A personal representative’s deed of distribution is used to distribute real property from an estate to a person or persons entitled to receive it. A PR’s deed of sale is used to convey real property from an estate to a buyer. When the PR is conveying real property pursuant to the terms of a will, he uses the appropriate deed for a testate estate. When selected by the court, the PR uses the appropriate deed for an intestate estate. In Maine, PR’s deeds generally convey title without any implied covenants of title (See 33 M.R.S. §771).

PR deeds require the name of the personal representative granting the property to the grantee; the decedent’s name; and the county in which probate is opened. As with all documents conveying an interest in real estate, the grantee information, legal description of the property, and derivation of the grantor’s title is required. Maine also requires the grantor’s spouse to waive any interest in the subject property, in applicable transactions.

The main distinction between a deed of distribution and a deed of sale is that the latter includes a consideration statement and a statement that notice was provided to persons succeeding in interest to the subject property, as required by law. A Maine Real Estate Transfer Tax Form is required for this type of transaction, unless an exemption is noted on the deed.

All PR deeds must be signed by the personal representative(s) and notarize before recording in the Register of Deeds in the county where the property is located.

Available Probate Documents for Maine:

Consult a lawyer with questions regarding the probate process and personal representative’s deeds in Maine.