Wills and Probate

What is a will?

A will is a written document, legally executed, which directs disposition of one’s property after death. A will only controls those assets that are in the name of the decedent alone or as tenants in common. It has to be in writing, signed by the testator/testatrix (person making the will), and attested and signed by two or more credible witnesses in the presence of the testator/testatrix. It becomes effective upon the death of the testator/testatrix and is probated. If you have a will prepared outside of Maryland and then move into Maryland, it is valid if it is executed in accordance with the laws of the state in which it was prepared. However, if you move to another state, check with its Register of Wills or Clerk in the Probate Division of your new jurisdiction to determine if your will prepared in Maryland is valid. Laws vary in different states.

Where should I keep my will?

Once a will is prepared, signed and witnessed properly, be sure to keep it in a safe place where it cannot be lost, stolen or misplaced. A safe deposit box is a secure place, provided someone is aware of its location. If the safe deposit box is in your name only, upon your death it is necessary for a deputy from the Register of Wills office to be present at the opening of the safe deposit box and removal of the will for filing with the Register of Wills. You may also file your will with the Register of Wills for safekeeping for a fee of $5.00. An original will brought to the Register of Wills for safekeeping will be sealed in a pre-numbered envelope and you will be asked to print your name, address, date filed, and who is filing the will on the space provided on the envelope. 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. If you need to make a copy of the will once it has been filed it is necessary for you to remove it and then the will may be re-filed for an additional $5.00 fee. 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 should I do with a will after a person dies?

After the death of a person, 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, they should call the office prior to arrival to determine if additional requirements may be applicable. 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.

Does a spouse have the right to renounce a will?

Instead of property left to him or her by a will or if omitted by a will, the surviving spouse may elect to take a one-third share of the net estate if there is also a surviving issue (child or children), or a one-half share of the net estate if there is no surviving issue (child or children). The election by a surviving spouse to take an elective share shall be made within the later of: nine months after the date of the decedent’s death; or six months after the first appointment of a personal representative under a will. The court may extend the time for election, before its expiration, for a period not to exceed three months at a time, upon notice given to the personal representative and for good cause shown.

What is a caveat?

A caveat of a will is the challenge of the validity of any instrument purporting to be the decedent’s will or codicil, whether or not offered for or admitted to probate. A caveat may be filed by an heir of the decedent or a legatee in any instrument purporting to be a will or codicil of the decedent. It requires a judicial hearing with notice being sent to all interested persons. Fees must be paid when the petition is filed. If a personal representative has been appointed prior to the petition to caveat being filed, the appointment of the personal representative is reduced to that of a special administrator until a determination as to the validity of the will is made by the court.

Is an estate always required?

If a person dies owning any property in his or her name alone or as tenants in common it is necessary to open an estate in the Register of Wills office. The value of the assets in the name of the decedent alone or a tenant in common determines the type of estate that is required.

If an estate is not required do I still have to file the will?

If the decedent did not have any property in their name alone or as a tenant in common, you are still required to file the will with the Register of Wills office in the county in which the decedent was domiciled at the time of death.

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:

Fees due to the register;

Costs and expenses of administration;

Funeral expenses not to exceed $10,000.00;

Compensation of personal representative in a regular estate, legal services and commissions of licensed real estate broker;

Family allowance – Spouse $10,000.00; each minor child of the decedent $5,000.00 (Contact the Register of Wills for the family allowance applicable for a date of death prior to October 1, 2013);

Taxes due by the decedent;

Reasonable medical, hospital, and nursing expenses of the last illness of the decedent;

Rent payable by the decedent for not more than three months in arrears;

Wages, salaries or commission for services performed for the decedent within three months prior to death of the decedent;

Public assistance claims; and All other claims

A preference shall not be given in the payment of a claim over another claim of the same class. However, claims filed by the Department of Health and Mental Hygiene receive a priority over all other claims of the same class. (See §8-105 of the Estates and Trusts Article.)

The Federal Insolvency Statute, 31 U.S.C. §3713, gives absolute priority for debts due to the United States, such as taxes due to the IRS.

What is a resident agent and what are the responsibilities?

A nonresident of the State does not qualify to be appointed personal representative unless on file with the Register of Wills office is an irrevocable designation by the nonresident of an appropriate person who resides in the State. That person, upon accepting the appointment and 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.

Taken from Administering Estates in Maryland, A Basic Instructional Guide published by the Office of the Register of Wills.