When an older will governs an estate: finalizing probate and securing authority to sell Maine real property

Quick summary: If a decedent’s will is old or does not reflect current ownership, you must identify what actually remains in the probate estate, open probate in Maine, obtain appointment as personal representative (or confirmation of the existing appointment), and either rely on statutory authority or ask the probate court for an order before selling real property. This article explains the practical steps, legal basics under Maine law, and how to get the clear authority a buyer or title company will need.

Detailed answer — step by step under Maine law

1. Understand whether the asset is part of the probate estate

Not all property passes under a will. Common non-probate transfers include jointly titled property, transfer-on-death (TOD) designations, beneficiary designations on retirement plans and life insurance, trusts, and property already conveyed during the decedent’s lifetime. The first task is to confirm title and account ownership:

• Check the deed: is the decedent listed as sole owner, joint tenant with right of survivorship, or owner with someone else?
• Check beneficiary forms and TOD deeds. If a beneficiary is named, that asset usually passes outside probate.
• If the property is not part of the probate estate, the will does not control its transfer.

2. Open probate and get appointed (or confirm the current personal representative)

If the property is in the estate, file a petition with the local Maine probate court to probate the will and appoint a personal representative (PR). The PR receives letters testamentary or letters of administration that prove authority to act for the estate. See the Maine Probate Code (Title 18‑B) for statutory authority and the court’s procedures: Maine Revised Statutes, Title 18‑B (Probate Code) and the Maine Judicial Branch probate pages at courts.maine.gov / Probate.

3. Inventory, creditor notice, and administration

As PR, you must identify estate assets, notify heirs and creditors as required by Maine law, and pay valid debts and expenses from estate funds before distributing proceeds. The probate court enforces creditor notice and claim procedures under the Maine Probate Code (Title 18‑B).

4. Authority to sell estate real property

Two common paths give you authority to sell real property:

• Statutory or customary powers of the personal representative: The Maine Probate Code grants general powers to a PR to manage and preserve estate property and, in many circumstances, to sell assets necessary for administration. You can review Title 18‑B for the PR’s powers and duties: Title 18‑B, Maine Revised Statutes.
• Court order authorizing sale: If the will is unclear, the sale is outside the ordinary administration, or the buyer/title company requests it, petition the probate court for an order authorizing the sale. The court can approve terms, confirm the sale, and issue a decree or order that a title company will accept to close and record a deed.

Common reasons to seek a court order include: selling real estate when heirs disagree; selling property that the will ambiguously disposes of; or when the title company requires extra assurance of the PR’s authority. The probate court’s order plus a certified copy of your letters is the usual proof buyers and recording offices accept.

5. If the will is outdated or does not dispose of the property

“Outdated” can mean several things:

• The will predates transfers the decedent made in life. If the decedent conveyed the house before death, the house is not an estate asset unless the transfer failed.
• The will names beneficiaries who predeceased the decedent and the will has no substitute provisions; that situation may produce partial intestacy (distribution under Maine intestacy rules in Title 18‑B).
• The will references property no longer owned at death or is ambiguous about particular assets; the court may need to interpret the will or decide intestacy issues.

Where the will does not dispose of the property, the probate court applies Maine’s intestacy rules to any leftover estate assets. See Title 18‑B for intestacy provisions: Maine Revised Statutes, Title 18‑B.

6. Practical process for selling

1. Confirm the property is part of the estate.
2. Obtain appointment as PR or confirm existing PR status and get certified letters.
3. Obtain an up‑to‑date title report and property appraisal (buyers and lenders usually require these).
4. If required, file a petition requesting the court’s authorization to sell real estate. Attach the proposed sale terms and any purchase agreement.
5. If the court approves, obtain a written order and certified copies for the title company, buyer, and registry of deeds.
6. Close the sale. The PR signs the deed (often as “Personal Representative”), the deed is recorded, and sale proceeds are handled through estate accounts for payment of debts and eventual distribution according to the will or intestacy.
7. File final account and petition for discharge with the probate court once administration is complete.

7. What buyers and title companies want to see

Title companies typically want one or more of the following:

• Certified copy of letters testamentary or letters of administration.
• Probate court order authorizing the sale (especially when the will is unclear or heirs disagree).
• A certified copy of the probate court decree of distribution at closing or evidence of authority to convey marketable title.

8. When to get a lawyer

You should consult a Maine probate attorney if:

• Heirs disagree about who gets the property or about whether the property is in the estate.
• The will is ambiguous, missing pages, or appears invalid.
• The title company or buyer requires a court order or extra documentation.
• There are complex tax, lien, or creditor claim issues.

Helpful hints

• Start by pulling the deed and any beneficiary forms; this often resolves whether the property is probate property.
• Visit the local probate court clerk’s office early. Clerks can explain filing steps and local procedures (not legal advice).
• Get a current title search and a professional appraisal before listing the property.
• Keep meticulous records: inventories, notices to heirs and creditors, receipts, appraisals, and court filings.
• If the PR will sell, be ready to provide buyers a certified copy of your letters and, if necessary, a court order approving the sale.
• Remember creditor claims must be resolved before final distribution; factor potential claims into sale timing and proceeds.
• Consult a tax advisor about possible federal estate tax, Maine estate tax issues, and capital gains tax considerations for the estate and heirs.

Where to read the statutes and court resources

• Maine Revised Statutes, Title 18‑B (Probate Code): https://legislature.maine.gov/statutes/18-B/
• Maine Judicial Branch — Probate court information and forms: https://www.courts.maine.gov/courtinfo/probate/

Final practical checklist

• Confirm whether the property is probate property.
• Open probate (if needed) and obtain letters.
• Obtain title search and appraisal.
• Decide whether you can rely on PR powers or must seek a court sale order.
• Get court approval if the situation is contested or the buyer/title company requires it.
• Close, record the deed, pay debts, and file final accounting.

Disclaimer: This article explains general Maine probate concepts for educational purposes only. It is not legal advice, does not create an attorney‑client relationship, and may not cover all facts that apply to your situation. For legal advice about a specific estate or sale, consult a licensed Maine attorney.