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Estate Planning Questions and Answers
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When a person dies (known as “the decedent”), Maryland law requires a specific process to manage and distribute the person’s property—their belongings, real estate they own, accounts in their name, etc. This process is called “estate administration.”
The decedent may or may not have left a will. If the decedent had a will, whoever has or finds the will of the decedent is required to send the will to the Register of Wills in the county where the decedent lived at the time of death. A will, however, has no power until it has been admitted to probate. In Maryland there are two kinds of probate – administrative and judicial. Administrative probate is for uncontested wills and is handled by the county Register of Wills. Judicial probate is usually for contested wills, and is handled by the county Orphan’s Courts. Read the Law: Maryland Code, Estates & Trusts, Sections 4-202 and 5-102
If the decedent did not have a will, that means he or she has died “intestate.” Maryland intestacy law designates who will inherit property from someone who dies intestate. Maryland law also sets out a priority of who inherits property first and the percentage of the decedent’s property each person has the right to inherit.
To open an estate, the individual in charge of managing the decedent’s affairs must file the required documents with the Register of Willsoffice in the county where the decedent had his or her permanent home, also known as the decdent’s “domicile.” The individual in charge of this process is called the “personal representative.” (Sometimes there are multiple personal representatives.) The personal representative is the individual the decedent names as “personal representative” or “executor” in his or her will. If the decedent did not have a will, or did not appoint one in the will, Maryland law says that the decedent’s closest living relative qualifies to take the role, which will be described in more detail later in this article.
When the Register of Wills (or Orphan’s Court) appoints a personal representative, it grants the representative letters of administration. Letters of administration empower the representative to distribute the assets in the estate. The personal representative pays the debts of the estate, distributes assets of the estate, reports to the court what he or she did, and closes the estate. The court rules for estates administration are found in Title 6 of the Maryland court rules.Read the Law: Maryland Code, Estates & Trusts, Section 10-101, Title 6 of the Maryland Rules
Assets of the estate are generally distributed after payment of inheritance taxes and other debts of the decedent according to the will. If the decedent didn’t have a will, the decedent’s property will go to the decedent’s relatives (if any) according to Maryland’s intestacy laws.Read the Law: Maryland Code, Estates & Trusts, Sections 3-101 through 3-112
There are two types of estate administration: one for “regular estates” and one for “small estates.” Small estates are governed by a simpler set of rules than regular estates; this page can help you determine whether an estate qualifies as a small estate or regular estate.
The first two steps involved in managing an estate are obtaining the will to be filed, and designating the personal representative.
OBTAINING THE WILL TO BE FILED
The first step is figuring out whether the decedent had a will. Common places people keep their wills include: a safe or filing cabinet, safe deposit box (if decedent had one), among their important papers, filed with the Register of Wills for their county. If the decedent did have a will, you must make sure:
· It is the decedent’s most recent will in its original form and not a copy;
· It was signed by the decedent, and;
· It was signed by two witnesses.
A valid will describes how the decedent’s property will be distributed. The original will must be filed with the Register of Wills office in the county where the estate will be opened. More information on the Register of Wills office in your county is provided later in this article.
If there is no will, Maryland law will control how the decedent’s property is handled and allocated, and these laws are referred to as “intestacy laws.” In some cases intestacy laws control even when there is a will in the event that there are problems with a will (e.g., the decedent did not sign the will, witnesses did not sign the will, there is fraud or wrongdoing, etc.) or if a will did not include all of the decedent’s property. (For more information about Maryland's intestacy laws, click here.)
DETERMINING THE PERSONAL REPRESENTATIVE
When figuring out who will act as the Personal Representative managing the decedent’s estate, you should first see if the decedent named anyone in his or her will to serve as personal representative. If the decedent does not have a will or the decedent’s will does not name a personal representative, Maryland law determines who has the right to take on this role.
Generally, the decedent’s surviving spouse has the right to take on this role.
If there is no surviving spouse, then any of the decedent’s surviving biological or adopted children (this excludes stepchildren) have the right to serve as personal representative.
If there is no surviving spouse or children, the decedent’s biological or adoptive parents are next in line.
If there is no surviving spouse, children, or parents then the decedent’s biological or adoptive siblings are next in line.
If someone with the right to serve as personal representative under Maryland law wishes to let someone else take over in this role, he or she may have someone else appointed by filing a form, called the “Consent to Appointment of Personal Representative” Form (Form 1105 for small estates). All people who have priority over that individual must sign this form.
Once the appropriate individual is determined to serve as personal representative, that person will apply to be officially appointed as personal representative when filing “Petition for Administration” (Form 1103 for small estates). When he or she is officially appointed later in this process, the individual is not only in charge of completing the remaining steps of managing the estate, but also must meet several deadlines under Maryland law throughout the process which are described in fuller detail later in this article.
The next step in the process is determining whether the estate qualifies as a small estate or a regular estate. Small estates are simpler to adminster than regular estates.
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