Estate and Trust Law Article

Wills and Estates

This information has been prepared by the Maryland State Bar Association, Section of Estate and Trust Law. It is intended to inform the public and not serve as legal advice.

What is a Will?

A will is a written (typed or handwritten) document that directs the disposition of a person's property after death.

Does a Will Dispose of All Assets?

A will is effective only with regard to certain types of assets, often called "probate" assets. Generally, these are assets that belong solely to you or are titled only in your name.

A will does not affect the disposition of property that is titled in the names of two or more persons as "joint owners with right of survivorship." Property titled in this manner will automatically belong to the surviving joint owner(s) upon the death of the first joint owner, regardless of the provisions of the deceased's will. Similarly, property owned by you and your spouse as "tenants by the entirety" will immediately become the sole property of the surviving spouse when the other spouse dies. However, your interest in property that you own with someone else as "tenants in common" is a probate asset, which will be disposed of by your will when you die.

As a general rule, a will does not dispose of insurance proceeds. These proceeds will be paid to the beneficiary designated with the insurance company. A will may only dispose of insurance proceeds if your estate, or trust created under your will, is named as beneficiary (or there is no designated beneficiary). Pension benefits or annuities are not affected by a will unless the estate or trust created under the will is designated as the beneficiary (or there is no designated beneficiary).

Who Can Make a Will?

Anyone who is a least 18 years of age and of sound mind can make a will.

Are there Formal Requirements for a Valid Will?

In Maryland, you must sign your will, and two or more witnesses must sign the will in your presence. Each witness must be 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.

Are there Any Restrictions on the Manner in which a Will May Dispose of Property?

Although the ancient "rule against perpetuities" limits how long property may be held in a trust, generally, no restrictions on the disposition of property exist. In addition, Maryland law now allows you to waive application of the rule against perpetuities in your will. A surviving spouse, however, has the right to "elect against the will." This means that regardless of the provisions of the deceased spouse's will, the surviving spouse may claim up to one-half of the probate assets if the deceased spouse had no descendants, or one-third of the probate assets if there are descendants. This prevents a spouse from being disinherited. Children have no similar rights in Maryland and may be disinherited.

Can a Will be Changed?

If you are competent, you can change your will at any time by signing a document called a "codicil" or by having a new will prepared. Either a codicil or a new will must be executed with the same formal requirements as the original will. You should not attempt to change your existing will by writing on it.

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.

How is a Will Affected by a Subsequent Marriage or Divorce?

In Maryland, a will is not affected simply by a subsequent marriage. But if a child born following that marriage survives you, your will is revoked. A divorce automatically revokes the provisions of the will that pertain to your former spouse, but does not affect other provisions of the will. Thus, provisions benefiting family members of your former spouse will remain in force.

What if I Die Without a Will?

If you die without a will, state law will determine how your probate assets will be distributed. In Maryland, if you are survived by a spouse and at least one minor child (under the age of 18), your spouse will receive only one-half of the probate assets, and your children will receive the other one-half (a deceased child's share will pass on to that child's own children).

If you are married and all of your surviving children are over the age of 18, or if you have no descendants, and a parent survives you, your spouse will receive the first $15,000 of the probate assets, plus one-half of the balance of those assets. The remaining probate assets will pass to your surviving descendants or parents.

Your surviving spouse will receive the entire probate estate only if you have no descendants or parents who survive you. If you have no surviving spouse, your descendants will receive all probate assets. Your siblings or more remote relatives will receive a portion of your probate estate if a spouse, parent or descendant does not survive you.

Under Maryland law, probate assets will pass to the county board of education only if there are no surviving blood relatives.

Can a Will Provide for Anatomical Gifts?

A will may include specific directions for the disposition of your body and funeral. Because your will may not be reviewed immediately after death, such directions should be communicated to family members so they are aware of your wishes at the time of your death. If you wish to donate your body for research or transplantation, you should also notify family members and carry an organ donor card or note your wishes on your Maryland driver's license. Maryland law also provides a one-page anatomical gift form concerning organ donation.

When are the Contents of a Will Made Known to Relatives?

You do not have to reveal the contents of your will to anyone while you are alive. After your death, the person who has custody of the will may disclose its contents to family members. The original will must be filed with the appropriate Register of Wills, where it will be recorded as public record. All beneficiaries named in the will and family members who would receive the probate assets if no will existed will be notified of the opening of the estate upon your death.

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.

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 Kind of Taxes are Payable 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. An estate may be subject to federal estate tax if the value of these assets exceeds $2,000,000. Under the 2001 federal tax act, this amount is scheduled to increase to $3,500,000 in 2009. In 2010 the federal estate tax would be repealed, but only for one year. In 2011, the tax would reappear with an exemption of $1,000,000. 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.

An estate may be subject to Maryland estate tax if the value of the assets exceeds $1,000,000. A properly drawn will can reduce federal and Maryland estate tax substantially.

Maryland imposes an inheritance tax on probate property, joint property, and certain other property. There is no inheritance tax on assets passing to exempt charities, a spouse, child (which includes a stepchild or former stepchild), other lineal descendant (grandchild, great grandchild, etc.), parent, 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.

Who Should be My Personal Representative?

A personal representative is the individual or institution named 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.

How Should My Will Provide for My Children?

In your will, you may name the person who will serve as guardian if you and your spouse both die while the child is a minor (under the age of 18). A will also gives you the opportunity to create trusts that will control how, when and under what circumstances your assets will be turned over to your children. In this way, you can prevent funds from being distributed to children before they are mature enough to handle them responsibly.

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. Some law firms and banks retain clients' executed wills in their vaults. In addition, an executed will can be filed for safekeeping with the Register of Wills in the county where you live. You should only keep a will in a safe deposit box if someone other than you has access to the box.