Maryland Wills, Trusts, and Probate

No one is comfortable thinking about or planning for life after death or incapacity.  Yet sooner rather than later, each of us must plan and decide how, after our death or incapacity, our assets will be distributed.  Unfortunately, a substantial number of people will pass away "intestate" (without a will), which permits the state or a court to decide how and where our assets will be distributed. To avoid this uncertain scenario, it is imperative that you consult with a Maryland estate planning attorney and begin drafting a comprehensive and precise will that ensures that your loved ones will be protected and provided for.

Maryland Will

To avoid passing away "intestate," you must ensure that your will adheres to the requirements of Maryland law.  As a general guide, do note that there are two ways to create a valid will in Maryland:

1. Typed (non-handwritten) will – must include:
a) Competent person: any person may make a will if he or she is 18 years of age or older and considered legally competent (of a sound judgment and mind);
b) Writing: the will must be written;
c) Signature: the will must include a signature by either the testator, (the person whose will it is) or by another individual who is in the presence of the testator and acts by the express direction of the testator; and
d) Witnesses – the will's signing must be witnessed by at least two credible witnesses who are in the presence of the testator.  Additionally, the witnesses must sign the will to document the fact that they witnessed the formation of the will. Witnesses CAN be be
neficiaries under the will. You should consult a Maryland will attorney with any questions or concerns.
2. Hand-written will (also known as a "holographic will") –  a Maryland will that is hand-written is effective only if it is in the handwriting of a person in the armed services. This hand-written will is valid if it includes:
   a) Writing: the entire will must be in the handwriting of the testator (a member of the armed services); and
   b) Signature: the will must be signed by the testator outside of a state of the United States, the District of Columbia, or a territory of the United States. It should also be noted that a holographic will is void one year after the testator is discharged from the armed services, unless the testator dies prior to the expiration of the year. If you are unsure if your bolographic will is valid, you should speak with a Maryland will lawyer.

How to Change a Will in Maryland

In order to modify a will in Maryland, you must either:

1. Subsequent will: Create and complete a subsequent will. This subsequent document will revoke any prior will or a part of it if and when the terms of the original will are changed by the subsequent document.
2. Destruction: if the original will is burned, canceled, torn, or obliterated by the testator, or by another person who is acting under the direction, consent, and presence of the testator, the document will be revoked.
3. Subsequent marriage and children: If the testator re-marries and has children, by birth or adoption, any wills executed prior to the subsequent marriage will be revoked.  This occurs only if the testator's children outlive the testator.
4. Divorce or annulment of marriage: if the testator divorces his or her spouse or has his or her marriage annulled, all provisions of the will that relate to the former spouse will be revoked, unless the will states otherwise.  Therefore, any assets originally designated to be distributed to the original spouse, will be revoked.

Before changing or revoking your will or other estate document, make sure you remember to consult with a Maryland will attorney.

Maryland Trust

Maryland law provides you with a second effective way to manage and distribute your assets.  A trust permits you to transfer your property or assets to another person who is then responsible for managing and distributing your assets according to your specific directions and needs.  The unique benefit of a trust is that if you become disabled or are unable to manage your estate, you can designate the person to handle your assets without government interference.

The Maryland Discretionary Trust Act provides the specific rules and regulations for creating a trust.  Maryland law recognizes a variety of trusts, each with their own unique benefits and purposes, such as the ability to avoid probate taxes.  In order to select and craft a trust that best suits your needs and interests, be sure to consult with a Maryland trust attorney.

Maryland Probate

The purpose of a will or other estate document is to transfer your assets to the intended beneficiaries (such as your children, siblings, friends etc.).  If a will or other estate document has not been created, upon death, the property or assets will be distributed according to Maryland's "intestate succession laws" (intestate means without a will).  These intestate laws will distribute your assets to a list of potential beneficiaries.  This non-exhaustive list includes:

1. Surviving children
2. Surviving parents
3. Surviving spouse
4. Surviving siblings
5. Adopted children

Again, be sure to speak with a Maryland probate attorney to determine how your assets will be distributed with or without a proper will.

Maryland Statutes

Maryland Code: Estates and Trusts

1. Wills
1. Maryland Statutes, Tit. 4, Subtitle 1, §§ 4-101 through 4-105
2. Intestate Succession
1. Maryland Statutes, Tit. 3, Subtitle 3 , §§ 3-101 through 3-112
3. Probate Code:  Administration of Estates
1. Maryland Statutes, Tit. 7, Subtitle 1, §§ 7-101 through 7-105
4. Trusts
1. Maryland Statutes, Tit. 14, Subtitle 1, §§ 14-101 through 14-113