A Will, formally called a “Last Will and Testament”, is probably the most well-known estate planning document. Most people know that a Will is the document where you designate in writing your wishes for how any assets titled solely in your own name with no joint owners and no designated beneficiaries (“Probate Assets”) should be distributed upon your death.
In a Will, you also designate the person you want to wrap up your affairs and administer your Probate Assets upon death. This person is called the personal representative or executor. Another important feature of a Will is the ability to designate guardians to care for your minor children upon your death. Finally, a Will can also include your preference for burial versus cremation and the type of funeral service you would like held in your memory, if any.
If you die without a Will, the laws of the state where you live control how your Probate Assets will be distributed, who will be appointed to serve as the personal representative of your estate, and who will be appointed to serve as the guardians on behalf of your minor children, if any. The court will make decisions on your behalf based on what is allowed under the state laws and, for most people, this is not going to be what they would have wanted to happen.
For any Maryland resident who dies without a Will, below is a breakdown of how your Probate Assets will be distributed under the current laws of the state (i.e. “Maryland’s Will”).
(1) If you leave living children but no living spouse, your children inherit all Probate Assets.
(2) If you leave living children and a living spouse (regardless of whether your children are from a prior marriage or children of you and your current spouse), your spouse is entitled to receive a family allowance ($40,000) if there are no minor children, and the balance of your Probate Assets will be split 50/50 between your children (collectively) and your spouse.
(3) If you leave a living spouse, but no living children and no living parents, your spouse inherits all Probate Assets.
(4) If you leave a living spouse and no living children, but living parents:
- If you have been married for less than 5 years, your spouse is entitled to receive a family allowance ($40,000), and the balance of your Probate Assets will be split 50/50 between your living parent(s) and your spouse.
- If you have been married for more than 5 years, your spouse inherits all Probate Assets.
(5) If you have no living spouse and no living children, the order of priority for who is entitled to inherit your Probate Assets is as follows:
- Siblings, per stirpes (i.e. nieces and nephews)
- Grandparents, per stirpes (i.e. aunts, uncles, cousins)
- Board of Education in the county of domicile
Do not let the laws of the state where you live dictate how your Probate Assets will be distributed or who will be able to handle things on your behalf or on behalf of your minor children. National Make A Will month is a great time to review your existing Will if you have one, or if not, to start the process to ensure your specific wishes will be followed upon your death. Contact us to schedule a free 15-minute consultation.