WHAT IS PROBATE IN MARYLAND
Maryland probate is the formal, court-supervised process of carrying out one’s last wishes by validating their last will & testament (if any), resolving any outstanding debts or taxes, and distributing any remaining assets to rightful heirs.
Probate can be complicated, but it’s just the legal collecting of everything someone owns and officially giving it to the right people (and giving the government their cut, of course).
It begins with contacting the court and ends with all estate taxes paid, death certificates filed, and assets officially distributed to rightful heirs and surviving family members.
Probate exists to prevent families from jumping in like a bunch of sharks to claim whatever cars, bank accounts, and other assets a family member had, and to make sure things like a death certificate, funeral arrangements, and estate taxes are handled correctly.
LENGTH OF PROBATE PROCESS IN MARYLAND
The administration of an estate often takes approximately one year. This includes marshaling all of the assets, valuing the assets as of the date of death and then making the distribution. Movies and television have lead some individuals to mistakenly believe that immediately after an individual’s death, there is a will reading and assets are distributed. In the Maryland probate process, there is no requirement for an official will reading. In cases that are plagued with family fighting issues, valuing or marshaling the assets or other issues the administration of the estate can take much longer.
For example, planning for estate administration often happens for individuals while they are still alive. An individual may work with an estate planning attorney to create a tailored estate plan to accomplish their wishes and include documents such as the last will and testament, trust for spouses, trust for minor children and grandchildren.
In addition, in the estate planning stage, an individual may coordinate beneficiary designations and asset titling to ensure that there is enough liquidity in his or her estate to prepare for estate taxes, to minimize the exposure to estate taxes and plan for the smooth distribution of his or her assets to loved ones.
CONSEQUENCES OF FORGOING PROBATE
An individual holding someone else’s original last will and testament is often required to file the original will with the Register of Wills office for the appropriate county. When an individual holds assets in his or her sole name at death, without a joint owner or beneficiary designation, the probate process is the only way to properly transfer the ownership of the assets.
Often by not beginning the probate process in a timely manner, tax filing deadlines may be missed and assets may eventually be turned over to the unclaimed property division in the state where the asset is located.
For example, if the property taxes are unpaid real estate may be subject to tax sale.
Often failure to timely begin the probate process, if necessary, can lead to difficulty in transferring the asset to the future generations. For example, if the property is not transferred for many generations and many individuals die it may be necessary to open several estates to transfer the real estate properly.
ADMINISTERING THE ESTATE
Once the individual passes away, the estate administration process begins. The type of probate proceedings available in Maryland depends on the facts of the case. Generally, if an individual dies with assets in his or her sole name, probate will be required. In addition, even if an individual dies with an original last will and testament and no assets in his or her sole name, the original will must be filed with the Register of Wills office.
A common misunderstanding is that the nomination of a personal representative in a decedent’s last will and testament alone provides the authority to begin marshaling the estate’s assets. To be recognized as the personal representative of the estate, the nominated person or persons must petition the Orphan’s Court for the proper authority to serve. If the Orphan’s court grants the petition, the petitioner is sent Letter(s) of Administration from the court which will serve as his or her official authorization to act on behalf of the estate.
In many cases, the petitioner may never have to appear before the court. In cases where there is an uncertainty regarding which individual has the priority to serve, family disagreements or other issues plaguing the estates, it may be necessary for a hearing.
ROLE OF PERSONAL REPRESENTATIVES IN THE PROBATE PROCESS
In many cases a publication is required to be placed in a local newspaper for three consecutive weeks. After the appointment of the personal representative, the administration of the estates begins. The personal representative works to value all of the assets, pay all the decedent’s debts and expenses, file any necessary tax returns, and finally, distribute the assets either pursuant to the terms of the will or pursuant to Maryland probate law. Depending on the type of probate process started there may also be requirements for filing of an inventory, accounting or a final report.
