Holman, Howard & Guecia
Attorneys at Law
Yarmouth, Maine, 04096
John Howard, Esq.
Cecilia Guecia, Esq.
The Responsibilities of a Personal Representative
Divorce Process Overview
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There are several documents which need to be prepared in order to start a corporation in Maine. The two most important are:
- the Articles of Incorporation
- the Bylaws
The Articles of Incorporation are filed at the Secretary of State's Office in Augusta and the filing fee is $145. The Articles contain the name that you have chosen to use for the corporation, the signature of the initial incorporator, and the amount of shares of stock which will be authorized to be issued.
The Bylaws act as a roadmap of how the corporation is to be operated. They address such matters as the time and place for annual and special meetings, the location of the principal office of the corporation, the various responsibilities for officers, how stock transfers occur, etc.
A corporation can be owned and run by a group of people or by just one person. That person can be the sole shareholder, director and all of the officers. I act as Clerk when I set up a new corporation. The Clerk has to maintain a location where a corporation can be served with papers in the event that someone wants to sue the corporation. The Clerk also must maintain a list of all shareholders,keep the corporate seal and corporate records and also prepare the documents which are necessary for the annual meeting.
An annual report for every corporation in Maine must be filed with the Secretary of State's office by June 1st of each year. I normally set up corporations so that their annual meeting is held in early March and this allows me to get the annual documents to you well in advance of the June 1st filing deadline. The fee which is currently charged by the State of Maine for filing the annual report is $85.
It is important to realize that a corporation can go on indefinitely as long as the necessary formalities are observed and the proper documents are prepared each year. All corporate finances must be kept totally segregated from your personal finances. Some people are told by their accountants to form a "Sub-chapter S" corporation. Sub-chapter S is a part of the Internal Revenue Code which allows a corporation to be operated without paying any corporate income tax. This means that if you are the shareholder in a Sub-chapter S corporation, then any corporate income will be taxed to you as regular income and you will not have to pay a corporate income tax on those funds.
I can easily provide you with more detailed information about corporations and also about the rights and responsibilities of shareholders, directors and officers. Please feel free to give us a call at (207) 846-6111 or send an email to the address above if you have additional questions.
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The Personal Representative is responsible for managing the income and expenses of an estate. This requires that you locate and gather the assets of the estate. At the end of this document you will find a checklist of the different types of assets which the decedent might have owned. It is important that you locate all such documents even if the decedent owned certain assets jointly with someone else.
Inventory List: One of your most important jobs is to prepare a list of the decedent's assets. Maine law provides three months to prepare this inventory. You should also prepare an inventory of the personal property in the decedent's house or apartment. With regard to any safe deposit boxes, I suggest you work with my paralegal to obtain access to the box and properly inventory it.
Estate Checking Account: You will probably need to open an estate checking account to receive income and pay expenses. My paralegal can assist you in opening and maintaining the account. If you maintain the bank account accurately, and keep your receipts, your final accounting will go smoothly. The expenses of administering the estate should be paid out of the estate checkbook. Once you have determined the existing bills and projected costs of maintaining the estate, we should sit down to establish a system that works for you to satisfy these expenses.
Personal Representative Fees: As Personal Representative you are entitled to a reasonable fee for your services and expenses. Sometimes, the Personal Representative decides not to charge any fees. Such fees are reportable as income in the year received. The estate may deduct the fee. Unless a Will provides otherwise, the expense is from the residuary estate. Because of all these factors, I suggest you maintain detailed records of your time and expenses, but do not claim the fee until you know the full effect of your decision.
Income Tax: With respect to taxes, you are responsible for filing the Decedent's final income tax return, the estate income tax returns, and, if appropriate, the federal estate and gift tax returns. I would be glad to recommend an accountant who can work with you on these matters.
Social Security: If you have not done so, you should contact the Social Security Administration (and Veteran's Administration if applicable) to advise them of the decedent's death. You may find that the funeral home has already done this, but it is wise for you to follow up. The estate may be entitled to death benefits from these agencies. Also, if the decedent was receiving Social Security, arrangements will need to be made to terminate the checks.
Creditors: Claims for expenses and debts of the decedent should be identified. I suggest that you withhold payment to creditors until we have a better idea of the size of the probate estate. Creditors have four months to file claims.
Assets: It is usually not a good idea to make distributions to heirs or devisees at this time. Before you take this action, we need to determine the needs of the family, to know the exempt property and the amount and nature of claims against the estate. You may advise people who are seeking early distribution that the process generally takes a minimum of six (6) months and if estate taxes are involved, it may take a year or more. While partial distributions may be made in less than six (6) months, they can only be done if they do not infringe upon the rights of everyone involved.
Legal Fees: Attorneys fees and costs are an expense of the estate. I will send you bills monthly for my services and costs. These bills will show you the hours worked, who did the work, the nature of the work, and a description of the expenses. If you have any questions regarding any bills, please feel free to give me a call.
I hope this letter gives you a better understanding of the process. Please feel free to call us at (207) 846-6111 with any questions you have as we proceed.
|_____||Last Will and Testament and any Codicils|
|_____||Any and all records of bank accounts, including checkbooks and cancelled checks|
|_____||Mortgages and deeds to real estate|
|_____||Statements from brokerage firms|
|_____||Stocks or bond certificates|
|_____||Statements for retirement plans (IRA's, 401(k)'s, etc.)|
|_____||Loan documents, including those relating to a home mortgage|
|_____||Income tax returns from the past three years|
|_____||Credit card statements|
|_____||Any information relating to valuable assets, such as jewelry, collections, art, etc.|
|_____||Title to burial plot|
|_____||Title to any automobiles, boats, motor homes, etc.|
|_____||Title to other personal property owned|
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A divorce proceeding in Maine is started by one spouse who files the initial paperwork and is then known as the "Plaintiff". The other spouse, known as the "Defendant", must be served with a copy of all of the initial documents. It generally makes no difference legally who is the Plaintiff and who is the Defendant. The Defendant has 20 days to respond to the initial papers. A divorce cannot be finalized in Maine until at least 60 days from the time the Defendant is served.
While the divorce is pending, the judge may issue temporary orders relating to some or all of the issues in the case.
A divorce case results in a final "judgment" or "decree". Generally, issues dealt with by the judgment include child custody, visitation, support, and a division of assets and debts. Usually spouses decide to agree on the contents of the judgment, but if no agreement is reached, the issues will be decided by a judge following a trial. It is the management of these issues which usually require the advice and support of a lawyer. An attorney can protect and represent your interests and rights as well as assure fairness and proper assessment of the specific issues in your case.
Grounds for Divorce
Maine law provides for nine specific reasons why a divorce may be awarded, including various fault grounds. However, nearly every divorce case in Maine ends with a "no fault" judgment on the basis of irreconcilable marital differences.
When the initial divorce papers are served on the Defendant, an injunction automatically goes into effect. This immediately prohibits either party from concealing, destroying, or transferring property. It also forbids the other party or any minor children from being removed from health insurance coverage.
Child Custody and Visitation
One of the most important issues in any divorce deals with the care of minor children, including where they will primarily reside, the schedule of spending time with each parent, child support, and how child-related decisions will be shared between the parents.
These and other related issues are described by the law under the heading of "parental rights and responsibilities". The law states that the parties and the court are to be guided by what is in the best interests of the children.
These determinations usually require an analysis of which parent is better able to provide for the needs of the children, while at the same time considering the history of custodial responsibilities, who has been the primary custodial parent in the past, the history of contact between the child and parents, and which parent would be most likely to promote and provide open, frequent and continuing contact between the children and the other parent.
The amount of child support that a parent will pay is determined by application of the Maine Child Support Guidelines which are based on the needs of the child, the number of children who must be supported, and the ability of each parent to pay support. Each parent's income is figured into the equation for determining child support along with expenses for child care related to work and the cost of health insurance for the children.
Before calculating child support, the court may allow deductions from a parent's income based upon factors outlined in the law. The court will order health insurance to be maintained by either or both parents if it is available at a reasonable cost through employment, and the court will order most uninsured healthcare costs to be shared between the parents.
The primary purpose of an award of alimony (technically referred to as "spousal support") is to assist one of the parties in maintaining the standard of living enjoyed during the marriage and to help that party in making a transition to being self-supporting.
Issues that must be considered in any award of alimony include the duration of the marriage, the need of the party receiving alimony, the financial resources of the other party, the standard of living during the marriage, the ability of each party to earn an income, differing levels of education, etc.
The current State of Maine law gives very broad discretion to a judge in awarding spousal support, which makes it very hard to make accurate predictions in this area.
Marital Property/Equitable Distribution
"Marital Property" consists of everything that either party to a marriage acquired during the time of marriage, regardless of who earned or paid for the asset or in whose name it is titled or registered. Marital property does not include assets acquired by way of gift or inheritance as long as the asset has not been "co-mingled" with marital property or jointly held assets.
Once all of the non-marital property has been set apart to the spouse who owns it, the law says that all marital property is to be divided in an equitable manner. "Equitable" doesn't always mean "equal"; it means what is fair to both spouses based upon the length of the marriage, the work history and job prospects of each party, the health of each spouse, the source of specific assets, and many other issues.
Maine law requires that parties to a divorce attend mediation in an effort to work-out a negotiated settlement to all of the issues involved in the case. Mediation is a process in which a trained neutral third party works with the parties and their attorneys in an effort to reach a negotiated settlement. The parties are required to attend mediation before any contested hearing is scheduled.
Certain aspects of a divorce judgment such as custody and child support are never final; they can be modified on the basis of a substantial change of circumstances until the child reaches the age of 18. However, the goal of providing a stable home for a minor child means that courts will usually require a very significant change or some other compelling reason to order a change of custody.
Sometimes, an award of alimony issued prior to October 2013 will specifically provide that its term cannot be shortened or extended and that the amount of alimony paid during the term provided cannot be increased or decreased. Otherwise, an award of alimony can be modified on the basis of a significant change of circumstances.
A divorce proceeding is a dramatic and emotional life change for all parties involved. By its nature, it is a difficult process, but the level of difficulty and trauma for all parties can be minimized. Through the support and counsel of a caring and qualified attorney, the divorce process can be navigated with confidence and trust.
If you have questions or specific needs, or wish to schedule a meeting, please feel free to contact John Howard at Holman, Howard & Guecia, 846-6111, or by email.