Wills & Estates Guide

This guide covers the most common questions you will have if you want to do a will or an estate plan in Maryland. If you read this guide you will have a good foundation to understand why you need to make a will, what kind of will you need, and what you need to do now to get started.

Some of the topics can get a little complex, so we have linked out to other resources in some of the answers below.

This guide was written by Nasheia Smith, an attorney at Southern Maryland Law - Andrews, Bongar, Gormley & Clagett.

Our Best Advice: This guide contains general information about Maryland estate planning law as a helpful resource for the public. Simply reading this guide does not create an attorney-client relationship with our law firm.

Reading this guide is no substitute for hiring an attorney. If you have any serious legal issue, you should get personal advice from an attorney who understands the unique facts of your situation.

We hope you will choose us to prepare your Maryland will. If not, at least talk to another attorney who knows what they are doing. That is the best advice we can ever give you.

Chances are, if you are bothering to read this guide, you do.

The easier question is actually “who doesn’t need a will?”

If you are young, single, have no children and no assets, then chances are you do not need a will. If you are not young, are married, have children, and have any assets at all, then chances are you do need one. Most people fall into that second category.

If you die without a will in Maryland, the state will decide who gets your assets. The state will also decide who gets your minor children.

What the State of Maryland requires may not be what you would choose. And regardless of what Maryland law says today, it can be changed at any time.

If you put your wishes into the form of a will, you can be assured that your wishes will be honored.

Having a will in Maryland prevents any fighting among your children after you are gone. You probably think that will never happen. We can assure you that we have seen it before in the most unlikely of circumstances.

Trust us, it is much, much better to avoid even the chance of fighting among your heirs. You can do that just by getting a will.

If there is a dispute about your assets, your heirs will have to resolve it in a court proceeding. Such a fight can shatter your family, and should not be your legacy to your children.

A very simple way to prevent this is to put your wishes in a will that covers everything so there is no room for argument when you are gone.

Having a will also gives you peace of mind.

Nobody plans to pass away. You should know that if the unexpected happens, your loved ones will be cared for, and your worldly possessions will be distributed according to your wishes.

Probate is what your heirs have to do with your will after you pass away. This guide is about getting the will done correctly now, so your heirs don't have problems with probate later.

If you don't have a will, or if you have a will that doesn't stand up under Maryland law, then you heirs will have a very difficult time in probate.

In Maryland, there are simple wills, complex wills, and trusts. Which one you need depends on your general situation.

If you contact us we will tell you, free of charge, which type of estate planning document you need. You can also ask us any questions you like.

This guide will provide some general guidelines and a brief explanation of each.

A trust is a complex document designed to reduce or eliminate federal estate taxes.

You will need to set up a legal entity (the trust) which will own all of your assets. You will be the trustee, meaning you control the assets just like you do now. You will designate alternate trustees to manage the estate after your death. Your property will have to be re-titled to the trust, and deeds will have to be filed.

It is a long process, and you only need this if you have enough assets to qualify.

The law sets exemption levels for estate taxes and they are pretty high right now. But those laws change way too often for us to give you a hard and fast rule as to when you need a trust.

Instead, we feel that you should sit down with an estate planning specialist if you get anywhere close to those exemption levels. If you have $3 million in assets (including retirement accounts, equity in your house, and life insurance) you need to at least sit down with a specialist and find out if you need a more complex estate plan.

We will tell you if that is so, and we will gladly refer you to someone we trust if we feel you have special issues and we cannot handle your estate.

Conversely, if you have less than $3 million in assets, you don’t need a trust – but you do need a will!

In Maryland, a “simple” will is appropriate for most people reading this article. It is what you probably think of when you think of a will.

This document provides for distribution to your heirs, names a Personal Representative (also called an Executor), and can have a limited number of specific bequests.

If you have minor children, this will can name the guardian, name a trustee for your assets, and provides an age at which your children can own the assets themselves.

If you are married, each spouse needs their own will. Each will leaves everything to the spouse, and then to certain group of people – usually your children – if your spouse dies before you or at the same time you do.

Not necessarily. A will does not dispose of property which would pass to another person by contract or by automatic operation of law. If you jointly hold property like a house, car, or bank account, then that property transfers automatically on death. Life insurance proceeds which go automatically to the beneficiary you have named in the policy also pass outside of the will. A pension, where you have named someone as beneficiary, is another common example.

First, you need to decide who your heirs will be.

That is usually easy. Most people choose a primary heir (usually their spouse) and a secondary group (usually your children) to inherit in case the primary heir passes away before you.

Getting Your Will Done

Second, you should think about which of those heirs to appoint as a Personal Representative (often called the Executor in other states).

The Personal Representative is in charge of distributing the assets and going through the probate process. They do not need special legal knowledge, as they can always hire an attorney.

But your Personal Representative should be a trustworthy person, who has a good dose of common sense. You can name someone other than an heir as Personal Representative, but most people do not.

Your Personal Representative also stands in your shoes (legally speaking) and can take legal actions that only you could have taken before your death.

Third, consider whether you need specific bequests.

Many people have items of personal property that they want to leave to a certain heir. You can do that in a will. This is appropriate for things of value like a stamp collection, jewelry, or a valuable antique.

If you have small personal items of limited or sentimental value that you think you may like to go to certain people, you do not necessarily have to put them in your will. Your will usually calls for items to be distributed so the value is equal to all heirs.

For these small personal items with sentimental value, you can simply put together a hand written list and give it to your Personal Representative. You can keep it folded with your will so it will be read at the same time. It can be changed later without a trip to the attorney.

Beware, this list is not legally binding, but will most likely be followed if you trust your Personal Representative.

If you cannot trust your Personal Representative to do this, you should consider choosing a different Personal Representative, or making specific bequests in your will to assure they will be honored.

If you have minor children, you have some more decisions to make. These decisions may be more difficult as they are very important.

You need to choose a guardian and a trustee. This can be the same person, and usually is, but it does not have to be.

The guardian is the person who will have physical and legal custody of your children. You should carefully choose this person, and you should discuss it with them before writing them into your will.

You should try to choose one person as guardian, not a couple. The sad fact is that 50% of marriages end in divorce and you do not want your children to be the subject of someone’s custody battle.

Most people choose a family member. If so, name the actual blood relative and leave the spouse or significant other out. If this ruffles any feathers, feel free to blame your attorney. We won’t mind.

Much of the same advice applies to the trustee, who is the person that controls your money for the benefit of your children. You will likely give your trustee absolute power to distribute your money to your children, so choose this person wisely as well.

Most people make the guardian and trustee the same person. It is hard to be a guardian if you have no money to pay for things, or if you have to ask the trustee for money every time you need it for the children.

Last, you will need to choose an age at which your children will own the property for themselves.The trust will end at that age, and they get your assets to own in their own name.

The most popular ages are 18, 21 & 25. It is hard to predict how mature your 18 year old will be if that is a long way off. Most people want their children to use their money for college, and not to blow it on a Ferrari, or a trip around the world. But at some age, they will get the legal right to own your money and do with it whatever they want.

You should also consider choosing alternate trustees and guardians, in case they are unable to serve. We use the phrase “unable or unwilling to serve” when choosing alternates. But what you are really worried about is your guardian or trustee dying before you do.

Life is unpredictable. We recommend choosing alternates.

In order to make a will, you must be "of sound mind." What does that mean? It means you understand what you are doing. You must be able to know that you are executing a will, know what your property is, and know what you are doing with your property in making your will.

A lawyer will ask the person making the will some questions designed to make the will maker is "of sound mind." As long as they know what they are doing, they can sign a will. If it is already too far gone for that, then you may need to pursue a guardianship. A guardianship is more complicated, expensive, and time consuming.

No, to be honest. However, you should realize that you are taking a risk.

There are computer programs out there that will write a will for you. We do not recommend them, and not just because they are competition.

Frankly, wills are not lucrative for any law firm. We keep them inexpensive and view them as a service to the community because so many people need them. They are also a great way for you to become familiar with our firm. Hopefully, you will use us again in the future if you or a friend need an attorney.

The much bigger reason is that your last instructions on this earth are too important to trust to some software writer.

Can you be sure the will is valid in Maryland? When was it written? When was it last updated?

Worst of all, these programs do not give you the most important part of getting a will – the advice that comes with it. The document itself is just the end result of the advice you should get from an experienced attorney.

We often hear the comment “I never thought of that” when we give advice during will consults. If you never thought of that, you cannot possibly address it in your homemade will. More than half of our clients discover things they didn’t know when they meet with us, or make some change to their plans based on our advice.

Keep this in mind: if there are questions or problems about your will, you won’t be around to clarify it. That is why it is important to get it right.

Attorneys tend to use forms with older style wording that have been used for a long time.

Do you know why?

These wills are “battle tested.” Others have used them successfully over decades and they have been tested repeatedly in Court after the maker has passed away.

A will written by a software company in the last 10 or 20 years cannot say that.

If you need an attorney to prepare you will, we hope you will choose. We are Southern Maryland estate planning attorneys in Waldorf & Lexington Park.

When someone comes in to have a Will prepared, we always ask them to also get an Advance Medical Directive and a Durable Power of Attorney.  These documents deal with the situation where you are unable to speak for yourself.   While everyone will eventually need a Will, not everyone will have a time where they are not able to make decisions for themselves.  However, if you do need these documents, and you don’t have them, it can be a huge problem and expense for your family.

The Advance Medical Directive

The Advance Medical Directive is really two documents in one. The first part is the Appointment of Health Care Agent.  The second part is the Statement of Treatment Preferences. The Appointment of Health Care Agent sets out who will make medical decisions for you.  The Statement of Treatment Preferences sets out your instructions for end of life decisions.

If you don’t have an Advanced Medical Directive and become disabled someone will have to file in Court to be appointed as your Guardian. This means the people who should be spending time with you, are spending time with lawyers and judges. Guardianship proceedings can cost several thousand dollars. Court battles can start over who should be your agent. Instead of you deciding who should act on your behalf, a Judge would have to decide who will be your agent.

For more information on this document see our article on The Advance Medical Directive.

The Durable Power of Attorney

When someone comes to us for a will, we usually explain why they also need a durable power of attorney. A durable power of attorney gives someone the legal authority to handle your financial affairs even if you are disabled

If you become disabled without a power of attorney in place, your loved ones will have to bring an action in court to have a guardianship established. This type of court proceeding can cost several thousand dollars. Court battles can start over who should be your agent, and a judge makes the decision – not you.

See our post  The Durable Power of Attorney.for more information.

If you need a Maryland will, please contact us today. We will meet with you to discuss your particular situation and give you advice on what to do. Call us at your convenience, or use the contact form on our website and we will contact you.

If you like, most of the advice can be explained over the phone and the particulars (names, etc.) can be sent by email. Then you can make only one trip to the office to review it, ask any questions, make any changes, and execute it.

But whatever you do, stop putting this off! You do need a will in Maryland, or you would not have bothered reading this far. Take the first step towards checking this off your “to do” list and call us today.

And, we have learned from experience that just covering the legal bases by having a will is NOT the only thing you can do for your family after you pass away.

Read on to find out the one thing you should do after you sign your will.

(A special supplement from Tucker Clagett)

My father passed away suddenly in 2010. As the lawyer in the family, I was the point man for everything to do with the estate. Going through the estate and probate process was, using formal legal terms, a royal pain in the neck! And this is true even though I am a practicing Maryland attorney.

This part of the guide is about how you can make this job easier on your loved ones. My father had an estate plan, and he had updated it a year before he died. If he had not, my job would have been 100 times as hard. (And if you are reading this and haven’t updated your estate plan in 10 years – trust me – you should do it now!)

And still, there is one simple thing which would have made my job even easier. It would not have cost a cent, or required a meeting with a lawyer. You can do it too – right now if you wish. I wish I had a simple letter from my father.

The letter would have outlined where everything was, what assets he had, and who to contact to discuss certain things. It would be written in plain English instead of legal gobledy-gook. It would not be legally binding. It would exist for one purpose only – to make things EASY. 

And in that time of mourning, making things easy is a fantastic final gift you can give to your loved ones. I highly advise you to do this as soon as possible.

Click here to see a suggested format for such a letter. Feel free to copy & paste it. Edit it as you wish. Do it now, and revise it every year.

The perfect time to revise it is immediately after you do your taxes. Most of the information you need is right there in your tax return. At least grab your last year’s tax return and fill in as much as you can now.

Your family will be thankful later!

If an unexpected death happens to a loved one, you may find yourself in a situation where you have to open an estate immediately.

You may need something as simple as a letter appointing you as the personal representative just so you can access a bank account or other financial documents you need immediately. The Personal Representative of the estate is the only person with the legal right and powers needed to take certain actions regarding the financial affairs of the deceased.

We have written a post explaining what you need to open an estate, and how to go about doing it. This is not a comprehensive guide, and you still need to meet with an attorney as soon as you can, but this guide will get you started in an emergency.