Frequently Asked Questions
Does the property of everyone who dies end up in probate?
No. The only time the property of a person who passes away goes through the probate process is if the decedent held property just in his or her name alone.
What are examples of property which pass outside of the probate process?
Proceeds from insurance policies pass directly to the named beneficiaries (unless the policy names the estate as beneficiary) without being part of the probate process. Property held as joint tenants with right of survivorship or as Tenants by the Entireties will pass to the surviving joint owner. Property held as “payable on death” will pass to the designated beneficiaries. Assets that are held in a revocable or irrevocable trust will pass to the beneficiaries named under the trust instrument without going through probate (unless the trust terminates and provides the assets are to be distributed to the estate).
What is a Last Will and Testament?
It is a signed, written statement describing how a person wants his or her property owned in individual name to pass at death, which, if executed in accordance with the requirements of Maryland Law, will be enforced by the courts. A Will generally also names the person (referred to as Personal Representative) who is selected to handle the final affairs. If a trust is set up under the Will, the Will would describe the trust and indicate the name of the person who is to serve as Trustee. If there are minor children involved, the Will could name the person(s) selected to serve as Guardian(s) of the person and property of the minor children.
What is required to execute a Will or Codicil?
Under Maryland Law, a Will or Codicil is required to be in writing and must be signed by the individual making the Will or Codicil. The Will or Codicil must be witnessed by at least two credible witnesses who must sign the document in the presence of the maker of the Will or Codicil (it is advisable that the witnesses also print their names clearly and provide their addresses). There are procedures which allow for execution of a Will or Codicil where an individual is unable to sign. The person executing the Will or Codicil must be at least eighteen years old and legally competent. The Will or Codicil should be dated. There must be conformity with all the requirements under Maryland Law and it is advisable to have a Will or Codicil prepared by an attorney.
What if there are two or more original Wills?
Most Wills have a provision which revokes all prior Wills, so generally the Will with the latest date is admitted to probate. However, after a person dies, all original Wills that have been found should be presented to the office of the Register of Wills.
What is a Codicil?
A Codicil is an amendment to an original Will. There may be more than one Codicil. After death all Codicils should be presented to the office of the Register of Wills along with all original Wills.
Is it possible to challenge or change the terms of a Will or Codicil after someone’s death?
An interested person may file caveat proceedings to challenge a particular Will or Codicil on various grounds, including lack of testamentary capacity at the time the document was executed, undue influence or fraud. There are strict time limits which apply to filing such proceedings and formal procedures must be followed. It is generally advisable to obtain legal counsel for such matters.
Will the State get all the property if someone dies without a Will?
In most cases, no. If a person owns assets in his or her individual name and dies without a Will, assets remaining after payment of administration expenses, debts and taxes (if any) are distributed to the person’s heirs as provided under Maryland Intestacy Laws (the person is said to have died “intestate”).
Generally, the Intestacy statutes provide for property to be distributed to a decedent’s closest living relatives, i.e., to a surviving spouse and children, if there are any; to children in equal shares if there is no surviving spouse; to parents if there are no spouse and children; and so on to more distant relatives. If there are no known blood relatives but there are stepchildren, the property would be distributed to the stepchildren, in equal shares. It is only if there are no known blood relatives or stepchildren that an estate may end up being distributed to the Board of Education in the City or County where the decedent lived.
Nevertheless, it is advisable to leave a Will because you may not wish to leave your property in the way or in the amounts the general Intestacy statutes provide.
What if a person dies with a Will and/or Codicil(s) but there are no assets in the decedent’s sole name?
Maryland Law requires that any one holding an original Will and/or Codicil(s) must file that document with the Register of Wills promptly after a decedent’s death even if there are no assets. However, although the Will and/or Codicil are kept on file, no probate proceedings are required to be opened.
What should a person do with an original Will and/or Codicil during his or her lifetime?
Upon execution, a Will and/or Codicil may be kept in a secure place such as a jointly owned safe deposit box, attorney’s office, left with the person named as Personal Representative or filed with the Register of Wills in the City or County where the person resides. It is very important to let one’s loved ones or other responsible people know where to find the originals of these documents.
About Maryland Wills and Codicils
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