Passing of Real Estate Upon Death: Is Probate Necessary?

When a loved one passes away, getting their assets properly titled is probably low on the list of concerns. Sometimes with real estate, nothing needs to be done. This will generally be the case if title was held as joint tenants and the other joint tenant is still alive. In almost all other circumstances someone needs to go through the process of opening an estate with the local probate court and distributing the real estate to the heirs or devisees (successors named in a will).

Prior to the adoption of the new probate code in 2019, it was easier for Maine residents to do nothing and let title vest in the heirs at law after the passing of 3 years. Before the most recent amendments to probate code, once the 3 years had passed there opening an estate wasn’t really an option. The 2019 changes altered this rule to allow for the opening of an estate to confirm title to real estate after the 3 years has passed to “confirm title in the successors”. 18-C MRSA § 3-108(D). In theory, heirs at law could be in possession of the property or potentially even sell the property and then ,years later, a beneficiary of a will that didn’t pass through probate could come along and file the will for probate to confirm title to the property in someone other than the heirs at law.

For a decedent domiciled outside of Maine, some form of probate process is essentially always going to be necessary to provide clean insurable title. Sometimes that involves opening an estate in the home state and then filing in Maine. Other times, it may be appropriate to file directly in Maine.

With this background in mind, if a loved one passes away owning real estate, I believe opening an estate and distributing the property the best course of action to prevent potential title headaches arising when it’s time to sell the property. If you’re not sure if probate is necessary (or if your property is held in a joint tenancy), contact a lawyer to help you work out the best course of action.

DISCLAIMER: This explanation may have some oversimplifications that may not fit each situation. For example, most of the above was written with Maine resident decedents in mind. Always discuss your specific scenario with an attorney.