There are different ways that your loved ones can receive your personal belongings and property after you die. A Will can help make sure that when you die, any of your property that is in your name alone, and which does not have a beneficiary, will be distributed according to the instructions that you have included in your Will. This means that a Will often can only control what happens to some of a deceased person’s property, but not all of their property. For example, if you die, anything that you own which is jointly owned with another person will automatically belong to that surviving person. Anything that you own which has a designated beneficiary will immediately be transferred to those beneficiaries when you die (this is most common for retirement accounts and life insurance policies). As you can see, there are a number of ways that a person can own property, and have only a portion of their property pass under their Will when they die. (See the article on Property Ownership and Titling.)
What else can a Will do?
Although a Will is typically known as a document that determines how property is distributed upon death, there are other important parts of Wills. For instance, a Will can be used to name a guardian to care for your minor children in the event of your death. A Will is also a place where you designate who you want as your Personal Representative (often referred to as an “executor”) who will be responsible for administering your estate through the Court process. In Maryland, a Will is also permitted to waive the bond requirement for the individual serving as your Personal Representative, which allows your Personal Representative to manage the process without requiring them to be insured for the value of all property of the estate. In most cases, waiving the bond requirement is a way to minimize the expense associated with administering estates.
What is the process for following a Will at a person’s death?
The process of distributing property under your Will is accomplished with a court proceeding referred to as “probate.” The probate process involves the Court appointing an executor (the “Personal Representative”), who is a person responsible for locating property, paying final debts and taxes, and distributing property according to the terms of your Will, if you have one, or if you do not, then to your closest living relatives based on Maryland law. This process typically takes at least 9 to 12 months, and the Personal Representative is responsible for filing information about the probate property with the Court at regular intervals. The Maryland Registers of Wills has a website with answers to frequently asked questions about probate. For more information, see the article on Estate Administration – Step-by-Step Guide and Timeline.
Can I avoid using a Will and going through probate?
In some cases, people may try to set up their property in a way to try to avoid probate, in order to make it easier for their family to wind up their affairs and make sure that property is distributed to the recipients most quickly. In many cases, this can be accomplished by designating beneficiaries on accounts, or by adding co-owners; one common example of this is making sure that your bank accounts are “Payable on Death” (or “POD”) to an individual at the time of your death. Another common example is making sure that your vehicles are set up to “Transfer on Death” (or “TOD”) to an individual at the time of your death. In Maryland, you can set up a beneficiary on vehicles through the MVA EStore Website. This can also be done through the use of “life estate” deeds for real estate, or the use of “revocable trusts” or “living trusts” for many other types of property. The National Academy of Elder Law Attorneys has a website containing information about the use of “revocable trusts” or “living trusts”. When making changes to your accounts to accomplish certain goals after your death, it is important to make sure that you are not making changes that will accidentally impact how you manage your property during your life. The Maryland Department of Labor has more information about how to title your financial accounts.
How can I be sure my Will is valid?
It is critical to make sure that a Will meets all the technical requirements of a legally valid will, including that it is properly signed by you and witnessed, in order to ensure that your Will is accepted by the Court at the time that you die. Learn more.
A Will does not need to be prepared by a lawyer to be effective, but a lawyer may be able to provide you with guidance about how to navigate complicated situations, such as planning for family members with disabilities or planning for blended families.
A Will cannot override all legal requirements, such as what your spouse may be entitled to inherit from you, but a Will can be used to make sure that you have addressed those concerns in the most effective way possible.
Where should I keep my Will?
There are a number of different places that you may choose to store your Will. In Maryland, you are able to store your original Will with the Register of Wills for the county in which you live for a fee ($5, as of 2020). Many people also choose to keep their Will at home, with their attorney, or in a safe deposit box. The most important part of storing your Will is making sure that you and your loved ones know where the original copy of your Will is, and are able to access it at your death. For those who store their Will in a safe deposit box, they should make sure that they have designated a trusted co-signer who will be able to access the box after their death.
It is extremely important to ensure that your original Will (in other words, not a copy) can be located and is able to be submitted to the probate Court at the time of your death. In cases where your original Will cannot be found after your death, it is possible that your wishes will not be followed.
This article was adapted from the Life and Health Planning Handbook created by the Life and Health Planning Committee of the Maryland Attorney General's Covid-19 Access to Justice Taskforce.