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Jeffrey Warren Jones

Jeffrey Jones’s Answers

3 total

  • Do I need a lawyer to make a will official?

    I would like to make a will. Do I need a lawyer to make it official?

    Jeffrey’s Answer

    No, Title 19-A of The Maine Statutes, Part 2 provides the "black letter" law about Maine wills. The will must be signed by the testator and witnessed by 2 competent adults. There are no "magic words" to include, but it must contain language that would convince the Register or Judge of Probate that it is a will, and not a bill of sale, a diary, letter, contract, etc. There is a statutory form of will in the statute which, if strictly followed, should work, but is very generic, and attempts to modify it often result in will contests or other problems.

    I've been practicing trust and estate law for over 30 years and I've seen a much, much higher rate of defects (lack of witnesses, failure to sign, lack of "testamentary intent," failure to include a residuary clause and ambiguous language) in self-authored wills than in wills prepared by lawyers. When any of these things happens, it means that the estate must be formally probated, with one or more hearings before a judge. This makes probate more expensive and MUCH more time consuming than the Informal Probate process that applies to wills with no defects.

    Finally, there are many reasons why the slogan on our firm's website is "Estate Planning - More Than Just Wills." Durable Powers of Attorney, Advance Directives, asset protection, advice about beneficiary designations and joint ownership of property, to name just a few.

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  • ONLY a MAINE PROBATE Attorney to respond.Can PR leave a partial amount in estate checking for 1 year & then disburse balance?

    Ready to final probate & disburse net proceeds to heirs. PR is financially responsible for 1 year AFTER closing & disbursement of funds & wants to hold an amount in estate checking for that year if any errors or claims are made. Heirs are in agree...

    Jeffrey’s Answer

    • Selected as best answer

    I assume you are planning to close the estate by filing a sworn statement with the Register of Probate as provided by the Maine Probate code, Title 18-A, sec. 3-1003.. You should read the statute and make sure you understand what the sworn statement can accomplish and what it cannot, and consult an attorney if you are not sure.

    Generally, the sworn statement, when filed, is your notice to any interested parties (who receive a copy) that you have fully administered the estate in compliance with the will (if there was one) and the Maine Probate Code. All of the heirs, devisees and any creditors who have filed a claim but have not been paid should receive an accounting of the estate with a copy of the sworn statement, but you do not have to file the accounting with the Register.

    If, one year after filing, no interested party has filed an action with the Probate Court alleging that there is some kind of a problem with the administration of the estate, the "appointment of the Personal Representative terminates." This is not exactly the same as discharging the PR from personal liability. The Probate Code provides that unpaid creditors and anyone who claims that the PR breached his or her fiduciary duty must file an action within 6 months after the sworn statement is filed or their claims are barred. So, as a practical matter, if no action is pending in the Probate court one year after filing the sworn statement, the PR is free from personal liability TO ANYONE WHO HAS RECEIVED THE SWORN STATEMENT. The Code also makes an exception for fraud, misrepresentation, or inadequate disclosure related to the settlement of the decedent's estate. The PR remains liable for any such claims unless the estate is formally closed with an Order by the Court.

    Can you leave funds in the Estate checking account for a year after filing the sworn statement to pay any claims that may arise? Yes, but the details (how much has been retained, when and how the checking account will be distributed) should be included in the sworn statement itself.

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  • Does the beneficary of a life insurance policy need to turn the funds over to the estate to pay bills

    Does the beneficiary of a life insurance policy need to turn the funds over to the estate to pay bills and later disperse the funds with all assets?

    Jeffrey’s Answer

    No. As Heather explained, death benefits from a life insurance policy pass directly from the insurance company to the named beneficiary, outside of the probate process. This means that the insurance proceeds cannot be reached by the personal representative of the estate for payment of debts or for offset against any assets passing to the beneficiary through the will (or by intestate succession, if there is no will).

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