Whether you know it or not, everybody who dies in the United States has a Last Will and Testament. Really! You do. You just do not know it. Congress and the State legislatures have written a Last Will and Testament for you in the event you do not write one for yourself.
The simple truth is, if you fail to prepare your own Last Will and Testament, the State of Maryland will provide you with a Last Will and Testament. The State’s Will for you is printed in the Estates and Trusts Article section of the Maryland Code. The District of Columbia will also provide you with a Last Will and Testament if you die in the District without a Will. Every state does… under the law it is referred to as “intestate” succession. If you die without leaving a Last Will and Testament, you are deemed to have died intestate, and the state’s intestate provisions will govern the distribution of your property upon death.
So why should you have a Last Will and Testament? The answer is simple. Ask yourself: Whom do I want to decide who gets my property upon my death, me or the State Government? If you want to determine who gets your property upon death, then you need a Will. If you do not care who gets your property upon death, then do not read any further about Wills… it will be a waste of your time.
If you die in Maryland without a Last Will and Testament, the State had mandated by law that your property will be distributed as follows:
- Costs and expenses related to your death and burial up to the statutory maximum amount; and then,
- Costs, expenses and fees for attorneys and/or the Personal Representatives for the estate administration; and then,
- Family Allowances as allows by law; and then,
- To pay all taxes owed to the government both before and after death; and then,
- To pay all enforceable claims or unpaid debts, and then,
If you have no minor children, your spouse will receive $15,000.00. If there are minor children, my wife or husband will receive $10,000.00. (Md Code Ann. Estates and Trusts §3-102 and 3-201);
If there are unmarried minor children, they each will receive $5,000.00, to be held by a guardian for use of family allowances. (Md Code Ann. Est&Tr §3-201 and 13-501)
Thereafter, one half of the balance of your estate will go to your spouse and the other half will go to your children. (Md Code Ann. Est&Tr §3-102 and 3-103).
The surviving parent of the minor children will be appointed the guardian of the property of the minor children, but if assets are to go to the minor children and is more than $10,000, then the Court will get involved to determine how to manage the child’s assets. The court will require the guardian of the property report to the Orphan’s Court, or the Circuit Court, regularly and account how, why, and where the money is spent. (Md Code Ann. Est&Tr §§13-207, 13-208, 13-209 and Md. Rule 10-706).
The person appointed as your Personal Representative to probate your estate will most likely be required to post a bond or ask for a bond waiver, to ensure that proper judgment is used in probating the estate. (Md Code Ann. Est&Tr §5-604).
Your children will have the right to review all financial records of the guardian. (Md Code Ann. Est&Tr §10-706).
As soon as your child(ren) reach eighteen, they will be able to withdraw any and all money that they are entitled and do with it as they want, with no one having the ability to question their spending. (Md Code Ann. Est&Tr §13-214 and Md. Rule 10-710).
If the other parent of your unmarried minor child(ren) lives longer than you, then they will be allowed to appoint whomever they want to be the next guardian of your child(ren) should they pass. (Md Code Ann. Est&Tr §13-701).
If the other parent of your unmarried minor child(ren) less than fourteen predecease you, then the Court will appoint the next guardian for your children and can make its selection from anyone who petitions the Court to be appointed as guardian for the property. (Md Code Ann. Est&Tr §13-702).
If your child(ren) are more than fourteen but less than eighteen, then the Court may appoint a guardian that the child(ren) chooses. (Md Code Ann. Est&Tr §13-702).
Upon your passing, there may be minimal efforts made to minimize taxes and the government may benefit substantially by your passing because it will be too late for pre-death tax planning.
The Orphans Court will appoint either your adult children or your spouse to handle the estate and they will have to file a performance bond to guarantee that the estate is handled properly. (Md Code Ann. Est&Tr §5-104, 5-105 and 6-102).
Only $10,000 will be allowed for all funeral expenses, unless there is approval of the Court to exceed this amount. (Md Code Ann. Est&Tr §8-106)
If you do not want the above provisions to appeal to you, YOU MUST CREATE A WILL. It is your choice, and yours alone, whether to die “testate” (with a Last Will and Testament) or “intestate” (without a Last Will and Testament). It is your choice to avoid having the Government decide who benefits from your death, or who gets what and how much. It is for those reasons (and many more) that everyone should have a Last Will and Testament, regardless of the size of your estate.