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 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.
What happens if you die without a last Will and Testament
- 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 predeceases 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)
Why you must create a will
The rules of law are strict and not individualized. State intestate laws make no room for gifting to charity, the establishment of a trust, forgiveness of loans, or anything else. Your wishes are not relevant to state intestate laws. State intestate laws do not allow for bequests of any nature to anyone absent their being provided for by state intestacy statutes. Friends, family (other than immediate) get nothing. Your Church, Synagogue, Mosque, or other religious affiliations get nothing. Charitable giving will not occur. You spend your entire life working and saving, but without a Last Will, the government, and only the government will determine what happens to your estate.
Dont let this happen to you
Not having a standing will bring hardship to the ones you love the most. Writing is Will is an unpleasant necessity.
What is a Last Will and Testament? What goes into a Last Will and Testament?
The basic structure of a Last Will and Testament is:
- Preamble: name and domicile of the testator and a statement of the family and heirs;
- Funeral provisions (we will also make provisions for this outside of your Will too so that your desires are sure to be taken care of by your family or Personal Representative);
- Payment of taxes;
- Specific Bequests;
- Residuary Bequests;
- Fiduciary and Guardian appointments;
- Attestation clause;
Just as we are all different, no one size fits all when it comes to drafting a Will. Your situation will be unique to you, and therefore you Last Will and Testament should and will be, different from everyone else’s, including your spouse. No two Wills should be alike, although they could be similar. For more than twenty years, we have assisted both rich and poor, young and old, single and married, with the drafting and execution of their Last Will and Testament. We know the questions to ask so that your wishes are fulfilled by the Personal Representative.
What about my children? How are the affected by a Last Will and Testament?
Minor children (under 18) cannot hold title to a property. If you have children under 18, transfers to a child can be very problematic absent a Last Will and Testament. If your estate will exceed $10,000, and you have children, then we know what you must do to protect your children, protect property that you may leave for your children, and how to make life easier for any future guardians of your children.
Maryland has a Uniform Transfers to Minors Act (UTMA) that governs the transfer of property to minors. However, UTMA transfers do not work under all circumstances, and more important, may actually do more harm than good. Think of it this way, none of us knows how we are going to die or under what circumstances. Assume that your death comes prematurely, and as a result, there is a multimillion dollar insurance settlement as a result of the same. Now assume that your children are your only survivors, and you were to die intestate. Would you want your children upon reaching their eighteenth birthday to become instant millionaires? Most parents would say no, and we would too because not many children know how to handle that much money. We know how to protect your children from themselves. We know how to ensure that your values are reflected in your Last Will and Testament.
What if I have a Last Will and Testament that I do not like?
What is a codicil?
If I already have a Last Will and Testament do I have to get it renewed?
No, Last Will and Testament’s do not have to be renewed. However, you should seriously consider having your Last Will and Testament reviewed and revised every five to ten years. Not only does the law change that could affect your Last Will and Testament, but we all get older too. As we get older, our needs change, there are life-changing events that occur (like the addition of children, grandchildren, or the loss of loved ones). Your Last Will and Testament should reflect the life-changing events that have affected you. As an example, suppose all of your children are now grown, have their own careers, and you now have grandchildren. You decide that instead of providing for your children upon your death, you would prefer to establish an educational trust for the grandchildren. We know how to do that. Suppose you have decided to retire to Florida. We know how to make provisions for that event too. Or suppose you are thinking about moving into assisted living, or an independent living facility. We know what senior citizens need to do to protect their property and families.
A Living Will (also sometimes known as an “Advance Directive”) is a document that directs your medical providers and loved ones what your wishes are in the event that you are terminal and in need of extraordinary life-saving measures. A living will direct that your dying shall not be artificially prolonged if you are diagnosed with an incurable injury, disease, or illness certified to be a terminal condition by that number of physicians you dictate that your death will occur whether or not life-sustaining procedures are utilized. By having a living will, the pressure of making an end of life decision is removed from your immediate family members. Here at the Law Offices of Shechtel and Associates, P.A. we can assist you in creating a living will that best suits your beliefs.
Don’t Hesitate To Ask
Feel free to get in touch with any inquiries and one of our friendly staff members will get back to you as soon as possible, we are here to help!