Frequently Asked Questions:
Note: This information has been obtained through the Prince George's County website and the original information can be located here. This information is to inform not to advise. If you are just getting started try this.
What is a Will?A will is a written document that directs the disposition of a person's property after death.
Who Can Make a Will?Anyone who is a least 18 years of age and of sound mind can make a will.
Why Should You Make a Will?For young married persons - to dispose of their property and to appoint proper persons as the guardians of the person and property of their minor children.
For the middle-aged - to provide a plan of distribution for their dependents by benefiting those with the greatest need and conserving their property for their spouse and/or children.
For the elderly - to make distributions which benefit spouse, children, grandchildren and charities.
What Are the Formal Requirements for a Valid Will?In Maryland, you must sign and date your will, and two or more witnesses must sign the will in your presence. Each witness must be disinterested and at least 18 years of age. Wills do not have to be notarized in Maryland.
Is a Will that has been Executed in Another State Valid in Maryland?A will that is valid in the state where it was executed will be valid in Maryland. However, if your will was prepared in another state it should be reviewed to ensure that the language used in the other state will be given the same interpretation under Maryland law. In addition, death taxes and probate laws vary from state to state; therefore, your will should reflect the laws that would apply to your estate when you die. If you move to another state, your Maryland will should be reviewed by a lawyer in the new state in order to determine if any changes are necessary or desirable under that state's laws.
When Should a Will be Changed?Review your will periodically. A significant change in personal or financial circumstances may mean that your will should be revised or replaced. For example, births, deaths or a change in marital status warrants a review of your will. Changes in federal or state tax laws may necessitate revisions in your will.
Who Should Prepare Your Will?Your will should be prepared by a lawyer in order to structure the will so that it reduces death taxes, ensures that the property will be distributed as you desire and satisfies other legal requirements affecting your estate. We do not encourage use of a "Do-It-Yourself" will kit or the internet. Each state has various laws and guidelines when you prepare a will.
How Much Does a Will Cost?Lawyers usually charge on an hourly basis at rates that vary from lawyer to lawyer. The estate planning needs of each person will be different; therefore, the cost of a will is affected by the amount of time it takes to review your personal and financial affairs and to prepare the will.
What if I Die Without a Will?If you die intestate (without a will), state law will determine how your probate assets will be distributed. (See "What is the Distribution of Property if I Die Without a Will?")
Where Should a Will be Kept?A will should be kept in a safe place to avoid accidental loss or destruction. Executed wills may be kept in any secure location. You should only keep a will in a safe deposit box if someone in addition to you has access to the box because the box may be sealed upon your death. You may also file your will with the Register of Wills for safekeeping for a fee of $5.00. If you choose to file your will with the Register of Wills, the original will should be placed in a sealed envelope with your name and address printed on it. During your lifetime, the will you deposited in the Register of Wills Office cannot be opened or released to anyone but you or to a person authorized by you in writing to receive the same.
You should always make sure that the person you have named as your personal representative is made aware of the location of your will.
What is a Living Will?A living will is a legal document that describes the medical care you want (or don’t want) if you become terminally ill or in a persistent vegetative state. A living will is also known as an advance directive or health care proxy.
What should I do with a will after a person dies?After death, the person having custody of the will should present the will to the Register of Wills. If the person having possession of the will is the nominated personal representative, he or she may call the office prior to arrival in order to assure they have the required information. In certain counties, you may also schedule an appointment with a deputy in order to promote faster service.
A custodian who willfully fails or refuses to deliver a will to the Register after being informed of the death of the testator/testatrix is liable to a person aggrieved for the damages sustained by reason of the failure or refusal.
What is Administration of Estates?When an individual dies, there are procedures in settling the estate. This process is called ESTATE ADMINISTRATION. Both state and federal law establish certain requirements which must be followed.
The word ESTATE is used to describe the collective assets and liabilities of a person who has died. ADMINISTRATION includes procedures and requirements relating to collecting assets, satisfying obligations, such as debts, expenses and taxes, and distributing property to the heirs or legatees.
What is an Executor or Personal Representative?An executor or personal representative is the individual or institution appointed to handle the administration of your estate. It is not necessary to name a lawyer as a personal representative, but your personal representative should be a person who is capable of handling financial matters, maintaining detailed records and administering your estate.
What is a Resident Agent and What are the Responsibilities?A nonresident of the State may qualify to be appointed personal representative upon filing with the Register of Wills Office an irrevocable designation of an appropriate person who resides in the State. That person, upon signing a form with their address, then becomes the resident agent. The only responsibility of the resident agent is to accept service of process in the same manner and with the effect as if it were served personally in the State on the nonresident.
What Occurs During Administration?At the beginning, all assets of the estate, including personal possessions and real estate, are inventoried. All of the legatees (if there is a will) or heirs (if there is no will) are located. They are notified that they were named in the will or have a legal right to receive an inheritance.
Funeral expenses, debts, state and federal taxes are paid, and necessary tax returns are filed.
At the conclusion of the administration period, a final accounting of all assets is presented for approval to the Orphans' Court. After approval, distribution of the balance of assets is accomplished.
A small estate ($30,000 or less or $50,000 if the spouse is the sole legatee or heir) must be held open for six (6) months. A large estate (more than $30,000 or $50,000 if the spouse is the sole legatee or heir) may take longer to administer.
What do I need to bring to open an estate?The following is a partial list of the required documents to open an estate. Additional forms can be obtained and filled out in the office. You can also download forms from www.registers.state.md.us
What Kind of Taxes are Due When a Person Dies?Both the federal and state governments impose taxes upon the property of a decedent. A federal estate tax with graduated rates is imposed on all property interests that the decedent owned at the time of death. The federal estate tax applies not only to probate assets, but also to such non-probate assets as joint property and insurance proceeds. Currently, federal law exempts the first $2 million from federal estate taxes, but that amount changes frequently. Maryland also imposes an estate tax on estates over $1 million. Between now and 2011, it is likely that Congress will change the federal estate tax again. Due to this uncertainty, it is especially important to have proper estate planning. A properly drawn will may be able to reduce federal estate tax.
Maryland imposes an inheritance tax on probate property, joint property, and certain other property. There is no inheritance tax on assets passing to charities, a spouse, child, other lineal descendant (grandchild, great grandchild, etc.), stepchild, parent, grandparent, stepparent, brother, sister, son-in-law, daughter-in-law, or the spouse of other lineal descendants. Inheritance tax at the rate of 10 percent will be assessed if the recipient is a niece or nephew, a more distant relative or a non-relative.
What is the Distribution of Property if I Die Without a Will?
If the Decedent is survived by:
Who has Priority to be paid if there are Insufficient Assets?The personal representative shall make payment in the following order if the assets of the estate are insufficient to pay all claims in full:
What Fees are Paid During Administration?
A probate fee is charged for the administrative processing of the estate. This fee is based on the total gross estate, as stated in the tables below. There may also be charges for additional services including, but not limited to, the following: extra Letters of Administration; certified or exemplified copies; entering claims; entering caveat papers; and certified mail fees for notices.
What is the Orphans' Court?The Orphans’ Court hears matters involving controversial estates and judicial appointments of personal representatives. The Orphans' Court approves accounts, and in cases where a petition is required awards personal representative's commissions and attorney’s fees. The Orphans' Court may determine the validity of wills.
What is Guardianship?The Register of Wills Office handles Guardianship of minor children. A Guardian is designated in a will, or if there is no will, by the Orphans' Court.
In most cases, the surviving natural parent becomes Guardian. The Guardian has a legal right and duty to care for the ward. This involves making personal decisions on his or her behalf, managing property or both.