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Question #1 – Wills
In regards to probate, what is the difference between an administrative probate and a judicial probate?
Administrative Probate – a proceeding that is initiated by an interested person with the Register of Wills for the appointment of a personal representative and for the probate of a will, or the determination of intestacy of the decedent
JudicIal probate – a probate proceeding conducted by the Orphans Court (as opposed to the Register of Wills) when the situation prohibits administrative probate (validity of the will is questioned, will is damaged, more than one qualified person applies for personal representative, etc
Question #2 – Wills
Does the size of my estate affect the probate?
Yes, your estate will either be classified as a regular estate or a small estate.
Question #3 – Wills
If I want my minor child to inherit something, even if they will still be a minor at the time of inheritance, how do I go about doing that?
The Maryland Uniform Transfers to Minors Act (MUTTMA) allows the donor of the gift to transfer title to a custodian who will manage and invest the property until the minor reaches the age of 21. You may include a provision in your will or you may create a Trust to preserve these attests for your minor children until they reach the age of the majority.
Question #4 – Power of Attorney
Does a third party have to acknowledge a power of attorney?
If the new Statutory Power of Attorney is presented to a third party who does not want to acknowledge the executed POA, the agent may initiate legal proceedings against the third party in order for them to acknowledge the POA. The new Statutory POA provides support from the Courts, as this is a statutory legal document drafted in order to create uniformity when presented to third parties.
Question #5 – Wills
If I do not have a will, but I have immediate family, how are my estate and assets divided?
In the State of Maryland, if you die without a will, your property will be dispursed as follows:
IF THE DECEDENT IS SURVIVED BY:
Spouse and minor children of the decedent- spouse receives one-half, children share remaining one-half
Spouse and children (all adult) of the decedent-spouse receives $15,000 plus one-half of remaining estate-children divide balance (the interest of a predeceased child passes to issue of that child)
Children only of the decedent-children (does not include step-children) divide entire estate (the interest of a predeceased child passes to issue of that child)
Spouse and parents of the decedent- spouse receives $15,000 plus one-half of remaining estate-both parents divide balance or surviving parent takes balance
Spouse of the decedent without other heirs listed above-spouse receives entire estate
Parents of the decedent without other heirs listed above-both parents divide entire estate or surviving parent takes all
Brothers/sisters of the decedent without heirs listed above-brothers and sisters divide estate equally (share of deceased sibling goes to their issue-nieces and nephews of the decedent)
Grandparents without other heirs listed above-grandparents divide entire estate or, if deceased, to their issue (see applicable law for details)
Great-grandparent without other heirs listed above-great-grandparents divide entire estate or, if deceased, to their issue (see applicable law for details)
Step-children-if there are no heirs listed above
No living heirs or step-children-If decedent was a recipient of long-term care benefits under the Maryland Medical Assistance Program at time of death, net estate is paid to Department of Health and Mental Hygiene. Otherwise, the net estate is paid to the Board of Education.
Question #6 – Power of Attorney
Can I revoke my POA?
A POA can be revoked at any time, and the POA should clearly provide in its language that the Principal may revoke it.
Question #7 – Wills
What a Will can’t do?
A will cannot cover property held as Joint Tenants/ or Tenants by the Entireties, or property transferred to a living trust. A will cannot cover proceeds of a Life Insurance Policy, money in a pension plan, IRA, 401(k) plan, or other retirement plan. However, you may on your own change the name of the beneficiary on the forms provided by the insurance agency, financial institution, etc. A will cannot cover stocks and bonds held in beneficiary forms. Additionally, a will cannot cover money in a payable-on-death bank account, as a simple form can be obtained from your bank to change the beneficiary listed.
Question #8 – Trusts
I have been designated as a trustee of my grandfather’s Trust. What are my official duties as a Trustee?
A trustee has a fiduciary duty to protect the assets of the trust, and to make sure that the purposes of the trust are carried out. Accordingly, by having possession and control of the trust assets the trustee must preserve the trust assets; control the investment of the trust assets; keep an accounting of the trust assets; keep the assets separate; make accurate distributions and keep beneficiaries fully informed.
The powers of a Trustee vary by State and should be clearly spelled out in the Trust Document.
Question #9 –Wills
What is intestate succession?
If you die without a will, you will have died intestate; meaning your property and belongings will be distributed through the strict intestacy laws of the State. In other words, without a will, your possessions will be dispersed to your closest relatives, and if you have no living heirs, to the State. Therefore, in order to protect your family and your belongings, it is extremely important that everyone makes a valid will; otherwise the State may get to determine how your property is distributed. (Please see answer to question #5 above).
Question #10 –Wills
Is there anything I can do to avoid probate?
Drafting trusts to protect your assets, and re-titling property. Before making any attempts to avoid probate in its entirety, please speak with an Experience Attorney regarding whether or not that is something that you should do. Sometimes, depending upon the circumstances of the situation, Probate is not a complicated process.
MVP Law Group would like to thank everyone who contributed a question or comment.
Our next “Estate Planning Q & A Forum” is scheduled for Friday, March 23rd, 2012!
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