Questions Answered by Daniel J. Eccher

Q: If my dad died without a will, can the probate court designate me as the executor?

2 Answers | Asked in Probate for Maine on
Answered on Dec 9, 2018
Daniel J. Eccher's answer
Priority of appointment of a “Personal Representative” of an estate (Maine’s term for the executor) is set in statute. According to 18-A M.R.S.A. Sec. 3-203, the order of priority is the surviving spouse of the person who died, the surviving domestic partner, other heirs (such as a child), and even a creditor of the estate (in that order). So, if your father is survived by a spouse or domestic partner, that person would have priority over you.

The fact that he died without a will...

Q: What are you recommendations for writing an Advanced Health Care Directive on my own?

2 Answers | Asked in Estate Planning for Maine on
Answered on Nov 5, 2018
Daniel J. Eccher's answer
Not knowing anything about your situation, I would recommend that you talk to a lawyer, because if you are thinking about preparing an Advance Health Care Directive, you may want a Durable Power of Attorney and a Last Will and Testament as well. However, if your situation is urgent, the Maine Hospital Association has posted a standard form on their web site:

http://www.themha.org/policy-advocacy/Issues/End-of-Life-Care/advdirectivesform.aspx

Unfortunately, you would need to...

Q: Is there ever a reason you'd go through probate if a will exists?

1 Answer | Asked in Estate Planning for Maine on
Answered on Sep 25, 2018
Daniel J. Eccher's answer
A: Yes; in fact, there may be a duty for a person who has control of a will of someone who has died to deliver it to either the Personal Representative named in the will or the Probate Court in the county in which the person died (18-A M.R.S.A. Sec. 2-902). A will simply lets people know how the testator wanted their probate property distributed after his or her death; it does not help the heirs avoid probate. Probate can be avoided in a few ways. You could change the title on all of your...

Q: My mother is alive and agrees to be appoint me her PR for when she passes. What probate form should I submit now?

1 Answer | Asked in Estate Planning and Probate for Maine on
Answered on Aug 15, 2018
Daniel J. Eccher's answer
Your mother should write a will in which she nominates you as the Personal Representative (PR) of her estate. I do not know of any form that should be filed with the Probate Court before she passes. After she passes, you would file the will and Petition to court for you to be appointed as PR.

Here is a link to the “Statutory Will” form: http://www.mainelegislature.org/legis/statutes/18-A/title18-Asec2-514.html

She could fill out this form and sign it in the presence of...

Q: I have a squatter problem in my deceased mother's house.

1 Answer | Asked in Estate Planning, Real Estate Law and Probate for Maine on
Answered on May 15, 2018
Daniel J. Eccher's answer
You have raised a number of issues. It seems to me as if the most important point is that there is someone living in your deceased mother's house who doesn't have a right to live there. Even if someone has permission from someone else to live there, the person living there should be paying rent to your mother's estate. Has anyone petitioned in Probate Court to be appointed Personal Representative of the estate? If you are her son, you would be a perfect candidate for PR; your mother's husband...

Q: Is there such thing as a childs fair share in maine? My brother was my mothers P>O>A and she passed a month ago.

1 Answer | Asked in Probate for Maine on
Answered on Jan 16, 2018
Daniel J. Eccher's answer
Your questions bring up a number of issues. In answer to your first question: generally, yes, each child should share equally in someone’s estate, unless the person who died indicated that one or more children should not share in the inheritance. In your specific case, based on your second question, you seem to be questioning your brother’s actions as your mother’s agent under power of attorney during her lifetime. An agent under power of attorney has a fiduciary duty to the principal (in...

Q: what kinds question I ask in probate court ?

1 Answer | Asked in Probate for Maine on
Answered on Jan 2, 2018
Daniel J. Eccher's answer
I'll make three points: First, if your attorney has entered her appearance on your behalf with the probate court, she needs the court’s permission to withdraw, except in limited circumstances. If the court grants that permission, the court should also be willing to grant you a “Motion to Continue” – that is, to delay any upcoming hearing (assuming you want it delayed) – that would give you a) more time to find a new attorney and/or b) more time to prepare.

Second, you should...

Q: Married live in Maine everything is in husbands name only. In his will it all goes to me. Problems??

1 Answer | Asked in Probate for Maine on
Answered on Dec 13, 2017
Daniel J. Eccher's answer
“Joint tenancy with rights of survivorship” would be at least more convenient for you as to title to the house, CU account, and cars. If that were the case, you could avoid having to open your husband's estate in Probate Court to transfer title to those assets if he were to predecease you.

If he needs assisted living or nursing home care before you do, it would be better for him to transfer assets to your name alone so that he’d be eligible for MaineCare - but he can do that when...

Q: If my sister is Durable Power of Attorney can she change my parents living will?

1 Answer | Asked in Estate Planning for Maine on
Answered on Nov 27, 2017
Daniel J. Eccher's answer
It sounds like you may be concerned that your sister may be taking advantage of your father’s assets. Your first concern should be about your father’s well-being. You could make a report to Adult Protective Services at 1-800-624-8404, but they only get involved in the most serious cases. You could also call Legal Services for the Elderly at 1-800-750-5353.

You may also want to contact a private attorney with experience in elder law and probate court practice. A private attorney...

Q: My mom cashed in her life insurance policy and passed before the check came . We have a joint checking account.

1 Answer | Asked in Probate for Maine on
Answered on Oct 8, 2017
Daniel J. Eccher's answer
I hesitated to answer this question because it lacks detail, but if I assume that the check was made payable to your mother, the problem is that she has passed, so she cannot deposit it. The general rule is that a check made payable to someone who has died cannot be cashed or deposited – rather, it should be returned to the party that sent it, with an explanation that the intended payee is deceased. In this situation, you may be thinking that because you share a bank account with your mother,...

Q: I probated my mom's will 5 months ago. My sister's lawyer asked for a detailed list of my mom's Estate.

1 Answer | Asked in Estate Planning and Probate for Maine on
Answered on May 10, 2017
Daniel J. Eccher's answer
This question appears to be incomplete, because it lacks a final punctuation mark, but I will answer that generally, the personal representative of an estate is required by statute to "... file or furnish an inventory of property owned by the decedent at the time of his death ...." (This statutory section can be found in its entirety at http://legislature.maine.gov/legis/statutes/18-A/title18-Asec3-706.html.) If you have not already done so, you probably need to do so soon. You may want to hire...

Q: Estate issue with two parents (Dad/Stepmom) who died without wills.

1 Answer | Asked in Estate Planning, Real Estate Law and Probate for Maine on
Answered on Jan 31, 2017
Daniel J. Eccher's answer
Assuming everything you have written above is correct, then I do not see any conflict. You all seem to be in agreement that the property should go to your step-mother's children. The only concern I would have is if you or your siblings do not understand whatever document you are asked to sign. If so, you should have a Maine-licensed attorney review it with you. If it is legitimate and effective, then once you have signed it, you should not have any further "legal or financial responsibilities...

Q: How can I structure if so my girlfriend can continue living in my house when I die, but my kids get the house as a part

1 Answer | Asked in Estate Planning for Maine on
Answered on Oct 26, 2016
Daniel J. Eccher's answer
It would be best to talk to an estate planning lawyer about your specific situation, but the short answer is that you could leave your girlfriend a "life estate" in the house in a will (or codicil to an existing will), with the remainder going to your children. The life estate would mean she would have use of the house for the rest of her life, but your children would have a "future interest." Another option would be to set up a trust, where the house could be held in trust for your...

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