Maine's probate courts may get long-delayed overhaul

AUGUSTA — Fifty years ago, the voters of Maine approved a constitutional amendment that repealed their historic right to elect probate judges in each county.

But the referendum didn’t actually set a date for when that would happen. It was supposed to take place when the Legislature worked out how to create a new probate court system with full-time judges.

Since they never have, the system that’s been around since 1855 remains in place, a relic that puts a little extra income in the pocket of 16 part-time lawyers who serve as county judges, each in charge of probate cases within a single county.

It’s possible that lawmakers may get around to making the long-promised change before too much longer. Bills that would get the ball rolling are creeping ever closer to final passage.

They would create a commission that would offer a plan for the new court system next year and install judges who would devote all of their attention to probate cases.

To be fair, it’s not as if legislators never tried. They’ve eyed all sorts of possibilities in the past half-century that would do the job. They just haven’t actually endorsed any of them.

“Study after study has suggested we change the system. Let's finally give it the attention it deserves,” Sen. Roger Katz, R-Augusta, said.

While Maine dithered, the rest of New England, which once had the same kind of independent probate courts overseen by part-time judges who often practice law on the side, has pulled off the makeover.

“Maine remains an outlier, with no benefits to its citizens from maintaining such position. Each year that passes makes the need for comprehensive reform more urgent,” said Deirdre Smith, a faculty member of the University of Maine School of Law and the director of its legal aid clinic.

Probate courts, which don’t have juries, deal with estates, adoptions, name changes, guardianship issues and proceedings aimed at protecting minors. Much of what they do is out of the public’s eye and successful judges are often at least as adept at dealing with clashing personalities as they are at interpreting arcane legal points.

The proposal, which both the House and Senate have endorsed, would create a 15-member commission “to create a plan for a more efficient and effective probate court system” that “will ensure, timely, convenient and meaningful access to justice.”

Katz said Maine’s regular judiciary works fine.

“I don't think we can say the same thing about the probate court system,” he told colleagues. “It doesn't look good on paper and, although it usually works well, that is not always the case.”

“To me, the heart of the problem is twofold: First, we elect probate judges who serve only part time, and secondly, we allow them to appear as private attorneys in Maine courts and probate courts outside of their own county,” Katz said.

He also said that if the state designed a system from scratch, it would never have elections for judges. “It is a system absolutely ripe for abuse,” Katz said, with inevitable complications for both winners and losers in contested races.

Besides, he said, “The idea of a partisan probate judge makes little sense in the 21st century. What is the Republican position on how to handle a contested guardianship? I have no idea.”

Katz also called it “a lousy system” to allow probate judges to practice law on the side “and even appear in probate courts in other counties as a private attorney, arguing cases in front of their fellow judges.”

It’s not hard to come up with scenarios where conflicts of interest may abound as judges, who are also private attorneys, vie with one another in one court while sitting in judgment of each other in a different venue, Katz said.

Leo Delicata, an attorney with Legal Services for the Elderly, said that because each court is independent from the other probate courts, Mainers “are not likely to receive the same experience of justice in each of these courts.”

That, he said, “is not acceptable in a society where the rule of law defines who we are as a people.”

He said the system needs uniformity and full-time professionals steeped in the relevant law and following the same procedures as other probate judges statewide. In the end, Delicata said, it “comes down to the idea that being a judge is more than just a job.”

One of the few critics of the proposal is Louis Sigel of Gardiner, who said Katz “is not trying to fix the Maine probate court system, he is attempting to destroy it.”

Sigel said that if probate judges can’t work part-time as lawyers, only wealthy people will be able to afford the job. The bill, he said, would “totally impoverish most probate judges” since they could only rely on their salaries.

Kathleen Ayers, a second-generation register of probate for Kennebec County, said probate courts are part of county government, which sets their budgets and salaries — something the state’s overhaul would likely change. The bill includes a provision to figure out how to ensure proper pay for the judges.

Ayers said the Maine Association of Registers of Probate isn’t opposed to change but wants a say in what’s done.

She said the existing system is about more than simply litigation. Much of the work involves answering questions from people who are trying to figure out what to do with a child whose parent is sent to jail or how to deal with an estate for somebody who died without significant assets.

She said probate judges want to improve the system and make it better. The question, though, is whether there’s enough money for the overhaul Katz envisions.

“Luckily, that is a question you folks must answer,” Ayers told lawmakers.

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Maine's probate courts may get long-delayed overhaul