A commission directed by the Maine Legislature to create a plan to incorporate the state’s probate courts into the judicial branch held its first meeting on October 19.
The Commission to Create a Plan to Incorporate the Probate Courts into the Judicial Branch was approved by joint resolution in July 2021 and is required to create a plan for a probate court system with full-time judges. It is also required to describe how the system it creates will be funded. Its report to the legislature is due no later than December 1.
Currently, Maine’s probate court system is separate from the judicial branch, with the exception that the Maine Supreme Judicial Court has the authority to set rules of procedure. Probate courts are also organized at the county level, with each of Maine’s 16 counties having one part-time judge who is elected every four years. Probate judges are the only judges in the state that are elected rather than appointed. Funding for probate courts also comes from the county level.
The commission’s first meeting covered a wide-ranging set of topics, including the history of the probate court system in Maine, past attempts to reform it and some of the issues the system faces. The commission heard presentations from registers and judges with experience working in the probate courts, as well as from Deirdre Smith, a professor at the University of Maine School of Law.
Members of the commissions also discussed their concerns about consolidating the probate courts with the state judicial branch. A common theme to commission members’ responses was concern that the services probate courts provide could be lost. Multiple commission members referred to the “customer service” the court provides for families in its jurisdiction, many of whom are going through difficult times in their lives.
Judge William Avantaggio, the probate judge for Lincoln County and a member of the commission appointed by the Probate and Trust Law Advisory Commission, discussed the help registers provide to people the probate court serves.
Avantaggio described the personal assistance registers provide ensuring paperwork is filled out correctly so it is not dismissed by a judge as “literal hand holding that sometimes goes on in [the] front office.” He said the work registers do is more than the work done by a law clerk and expressed concerns both the probate court and district court would become less effective if probate courts are incorporated into the judicial branch.
Also discussed was the concern that because probate judges are well-known members of the community they serve, their rulings carry weight that might be lost by incorporating the probate courts into the state judicial system.
Other concerns were raised over practical matters, such as the lack of space in district courts to incorporate probate courtrooms and how the different electronic filing systems used by the respective courts would be handled.
The commission also discussed whether there are any matters the probate courts handle that can be easily merged into the state court system. Members of the commission generally agreed that certain matters dealing with children, like guardianship, some of which already fall under the jurisdiction of district courts, would likely be easiest. They also discussed that while there is some overlap in the jurisdiction of probate courts and district courts and the legal standards are the same for both courts, the way each approaches a case is very different.
The commission concluded its meeting with requests for data that it will use to help it get a better sense of how the probate court currently functions and what kind of model it can propose in its final report.
During the meeting, Rep. Barbara Cardone (D-Bangor) also mentioned that she’d discussed the commission with Gov. Janet Mills. Cardone reported that while Mills said she supports the commission’s work, it is not a priority of her administration.
Cardone expressed concern that if the commission report recommends a plan that takes the probate court for the county level and incorporates everything into the district court “in one fell swoop,” the plan won’t get the legislature’s or the governor’s approval.
