Probate is a court process that wraps up the affairs of a person who died. While this includes locating assets and dividing them among beneficiaries, it also includes many other aspects of the decedent's estate, from determining whether a valid will exists to paying the estate's debts and taxes.
Probate procedures are creatures of state law, so every state's probate laws include different requirements. In Maryland, there are shortcuts to the long probate process if the decedent left a small estate, and it is also possible to exclude assets from probate if an individual plans in advance.
What Is the Maryland Probate Process?
Probate is a legal proceeding where a court or administrative agency reviews and adjudicates all aspects of a decedent's estate. In Maryland, probate steps include everything necessary to settle an estate, from determining whether there is a valid will to distributing assets and paying bills.
Probate in Maryland involves a variety of disparate issues that include:
- Determining if the deceased had a will.
- Finding the will.
- Finding the will witnesses.
- Adjudicating any will challenges.
- Ruling on the validity of a will.
- Determining intestate succession if no valid will.
- Appointing someone to serve as the executor or administrator for the estate.
- Locating the estate probate assets.
- Transferring probate assets to the executor or administrator.
- Calculating the value of the probate property to see if any shortcut procedures apply.
- Gathering a list of probate debts.
- Determining whether claimed debts are valid.
- Locating beneficiaries of a will or determining and locating heirs of the deceased.
- Converting assets to cash, if necessary, to pay estate debts.
- Managing any ongoing businesses of the estate during probate.
- Filing estate taxes.
- Distributing property to beneficiaries or heirs.
What Is Maryland Probate Property?
When a person dies in Maryland, most of their property is probate property. That is the term for the assets of an estate that must go through the probate proceeding. It includes assets that the deceased owned by themselves rather than held jointly with someone else.
Assets that a deceased person owned jointly with someone else with right of survivorship pass directly to the other owner. Likewise, accounts or insurance that have a named beneficiary, like life insurance policies and payable-on-death (POD) investment accounts, pass to the beneficiary automatically outside of probate.
What Are Non-probate Assets?
Maryland law allows an individual to add a "transfer-on-death" (TOD) designation to their stocks and bonds, and other financial accounts. Many residents hold their investment accounts this way. The state doesn't allow real property to be designated in this manner, but it does recognize survivorship rights attached to joint tenancies and community property.
These types of assets are called non-probate assets. Maryland also recognizes other types of non-probate assets, including:
- Bank, savings or investment accounts for which the decedent specified a payable-on-death beneficiary.
- Real property held in joint tenancy by the deceased and another individual.
- All life insurance policy proceeds if the named beneficiary is not the estate.
- Retirement plans payable to a named beneficiary.
- Cars, trucks and boats registered for transfer-on-death.
- Assets in revocable living trusts.
Personal Representative in Maryland Probate
Although probate in Maryland is a court-supervised process, the actual day-to-day tasks of winding down the estate are not handled by the court, but rather by a personal representative of the estate. If the decedent left a valid will that named a personal representative, Maryland courts give that person priority for appointment.
If no personal representative was named, the decedent’s surviving spouse has priority. Absent a surviving spouse, surviving adult children have priority.
Small Estate Shortcuts
Once non-probate assets are separated from probate assets, the court can determine the value of the probate estate. Probate procedure in Maryland turns on the value of the estate. While, generally, estates must pass through a long process of probate, small estates in Maryland are permitted to use abbreviated procedures.
Regular estates must proceed through the probate process in the Maryland Orphan's Court. Small estates may be dispensed with through a simpler process called Modified Administration, which requires the consent of all of the heirs.
What is the dividing line between a small estate and a regular estate in Maryland? A regular estate has a value of $50,000 or greater, determined by adding the fair market value of all of the estate probate assets, minus all known debts of the decedent. If the decedent's surviving spouse is the sole heir, the small-estate cutoff is extended to $100,000.
Maryland Small Estate Procedure
Maryland statutes authorize a simplified probate process for estates that qualify as small estates. The person named as personal representative in the will, the surviving spouse, or any other surviving relative, files a request with the probate court, citing the value of the estate assets and the amount of debts or encumbrances.
This document must state that the person has attempted to locate all of the decedent's property and to identify all of their debts. They must attach a list of the estate property and its value, as well as the debts, including any civil legal proceedings involving the deceased.
If the court is convinced of the facts, it authorizes the personal representative to distribute estate assets without the need to follow regular probate procedures. The representative is authorized to pay funeral expenses of up to $15,000, $10,000 to the surviving spouse, plus another $5,000 to the spouse for each minor child. They may sell estate assets in order to make these payments.
If there is additional value in the estate, the personal representative must publish a notice for three consecutive weeks in a local newspaper. The notice gives creditors a deadline in order to make a claim against the estate.
Testate Estates in Maryland
Probate proceeds differently depending on whether the decedent left a valid will. An estate is termed "testate" when the deceased left a valid will. If there was no will, or if the will was not valid, the estate is termed intestate.
For a Maryland estate to be testate, the deceased's will must have been correctly drawn up pursuant to Maryland statutes. If the will is valid, the probate assets remaining after obligations are paid will pass to those beneficiaries named in the will.
Making a Valid Last Will and Testament in Maryland
To make a valid will in Maryland, the person making the will must be at least 18 years old and of sound mind. They must decide who will inherit what, who they wish to manage the estate and, if there are minor children, who they wish to serve as guardian.
Maryland requires the person making a will to sign in front of two adult witnesses. Each of the witnesses must then sign in front of the testator. It is not necessary to have the signatures notarized. If the will is not valid under Maryland law, the estate is treated as intestate, with assets distributed to the heirs as set out in Maryland's intestate statutes.
Intestate Estates in Maryland
Maryland has intestacy laws that specify who takes a deceased property when a person dies without a will or leaves an invalid will. These intestate succession laws leave property to the decedent's close family members, giving priority to a decedent's surviving spouse and descendants.
To qualify as surviving under Maryland law, a person must survive the decedent for 30 days. That means that if the decedent dies in a plane crash, those family members who were also in the crash and die within the next few days, as well as those who die of other causes within 30 days, are not considered to be surviving heirs.
- If there is no surviving spouse, 100 percent of the assets go to surviving children in equal shares.
- If a child has died but left their own children, those children inherit the child's share in equal parts.
- If there are no surviving descendants, the surviving spouse takes 100 percent.
- If the decedent left a surviving spouse and minor children, the spouse takes half, and the other half of the assets are distributed among the children.
- If the decedent left both a surviving spouse and adult children, the spouse inherits the first $15,000 plus half of everything else, with the remainder going to the adult children.
- If the decedent left a surviving spouse and parents but no descendants, the spouse gets the first $15,000 and half of everything else, with the remainder going to the parents.
If the deceased leaves neither a surviving spouse nor any descendants, the law gives the property to the decedent's parents. If there are no surviving parents, then siblings take the inheritance, and if the decedent left no surviving relatives, all estate property goes to the state of Maryland.
Administrative vs. Judicial Probate
There are two kinds of Maryland probate: administrative and judicial. Each has a different legal venue where the probate case will be handled. The laws mandate a more complex probate and a court venue if anyone contests the deceased person’s will.
In Maryland, administrative probate is only available when there is no will contest. If there is a valid will and it is not contested, administrative probate is possible. Intestate estates can also go through administrative probate.
These probate cases are much shorter and easier than judicial probate. They are heard by the Maryland Register of Wills. Once the will has been filed in the appropriate county Register of Wills, a personal representative is appointed and the probate case opened.
Judicial Probate for Contested Wills
On the other hand, if a will is contested, the probate must be judicial. It is heard before the Maryland Orphan’s Court which is the state’s probate court.
While an estate will proceed in the same steps in either forum, judicial probate can be a much longer procedure because a will contest must be adjudicated first. This can take a long time, sometimes years. Once it is resolved, the estate is probated.
Probate Process in Maryland: Overview
The actual probate procedure involves a large amount paperwork, with many hoops to jump through and smaller steps along the way. As an overview, these are the steps of the probate process:
- Decedent's will, if any, must be located.
- If the decedent left a will, it must be sent to the Register of Wills for the county where the decedent was living at their death.
- Register of Wills appoints a personal representative.
- Personal representative inventories the deceased person’s property and determines the estate size according to Maryland law.
- Will must be proved by testimony from the witnesses who saw the deceased person sign the will.
- Decedent's debts, including estate taxes, must be paid.
- Decedent's remaining assets are distributed according to the terms specified in the will or by intestate succession.
Anyone acting as a personal representative in Maryland probate should consider working with an experienced probate attorney.
Teo Spengler earned a JD from U.C. Berkeley Law School. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an MA and an MFA in English/writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.