A last will and testament is a legal document that often identifies the person that an individual would like to appoint as a personal representative. It also includes provisions that reflect the testator’s wishes for the distribution of his or her assets at his or her death. Often a last will(s) and testament(s) may include instructions for burial or cremation, trusts for minor children or grandchildren and trusts to provide for spouses.
A person should contact an estate planning, or Maryland probate lawyer, about creating a will at any time. All individuals regardless of their level of assets or their family dynamics may benefit from the preparation of a last will and testament which is very unique and coordinates their assets with their overall estate planning.
Issues Caused by Dying Without a Will
Maryland law provides for a default set of rules for individuals that die intestate or without a last will and testament. Often the laws of distribution may not be the same as the individual wishes for the disposition of his or her assets at death.
Consider that perhaps an individual wanted to leave all of his or her assets to support the surviving spouse, but Maryland law instructs that the estate must be split with the surviving child or parent.
A last will and testament also nominates an individual to serve as a personal representative. When there is no individual nominated there may be ambiguity in the estate administration process which leads to confusion over who has priority to serve as a personal representative. If a decedent has minor children, but has not prepared a last will and testament that includes trust provisions for minor children, it is necessary for the surviving parent or another individual to petition the Maryland court to serve as guardian of the property of the child, so that all of the assets that are distributed through the estate can be collected on the child’s behalf. Maryland guardianship of the property is a process that lasts until the child becomes of age or turns 18 and requires continued court supervision until the child turns 18.
Speak to a Maryland Probate Attorney to Create a Will
An experienced attorney can work with an individual and assist in drafting and executing their last will and testament. Ultimately however, moving forward with the execution of the document is left to the client. Speaking with an estate planning or Maryland probate attorney during their lifetime while they maintain the required testamentary capacity can help them secure and plan for their family’s future.
Anyone can speak with a Maryland probate lawyer to discuss their unique estate planning needs. An attorney can assist them in drafting a last will and testament that expresses their personal wishes for the distribution of their assets. In addition, a Maryland probate lawyer can assist them with coordinating the titling of assets and beneficiary designations to ensure that there is enough liquidity in the estate to pay debts and taxes and make distribution pursuant to their wishes.
Impact of Maryland Probate on Those With Joint Accounts
Probate describes the court process of administering a will which takes place after an individual’s death. Probate usually involves the qualification of an individual to serve as a personal representative and the court process that is required to administer the estate of the decedent.
In Maryland, the only assets that are ‘probated’ are those that are in the decedent’s sole name on the date of the death without a beneficiary designation. However, all the assets in the decedent’s control may be used to calculate the decedent’s gross taxable estate for either Maryland or federal estate tax purposes.
Whether or not a joint account is subject to the probate procedures depends on the facts of the case and the nature of the titling of the assets. For example, some joint accounts rely on the signature cards that are held with the financial institutions that they have been opened for ‘convenience only,’ meaning that the joint owner is not the true joint owner entitled to the assets of the account.
Joint accounts may be troubling during an estate administration if not coordinated with an individual’s overall estate plans. The assets of true joint accounts can pass by operation of law rather than through probate and it can often lead to illiquidity in the estate and unintended beneficiaries.
Access to Joint Accounts Before Probate
Whether the surviving joint owner maintains access to a joint account after the death of the joint owner, depends on the titling of the assets in the financial institution where the account is held. In general, an individual – especially a surviving spouse – may wish to speak with an estate planning attorney prior to accessing or using a joint account to see if there are any post-mortem estate planning opportunities available. For example, some estate planning provides for the use of disclaimers at the death of the first spouse to maximize the decedent’s estate tax exemption. If the surviving spouse uses the joint account the account may be disqualified to be disclaimed.