Sometimes, the hardest part of creating a will is recognizing the fact that you’re going to need one. After you get over that hurdle, the legal logistics vary a little by state, but usually only in the finer details. Like most states, Maryland requires that you be at least 18 years old to make a will. You must be of sound mind, which means that you know what you’re doing and you understand your relationships with the people to whom you want to leave your property. Your will must be typed or printed -- handwriting won't do unless you're on active duty with the military and serving outside the United States.
Figuring Out Who Gets What
The first step in creating a will involves identifying property you own that doesn’t pass to others by some other means, such as retirement plans that already have beneficiary designations or real estate you own with someone else with rights of survivorship. You can leave your estate as a whole, such as by stating that all your siblings inherit all your assets from you in equal measure, or you can make specific bequests, such as leaving your art collection to one particular child who shares your passion for it. If you’re married, you must leave your spouse a certain percentage of your estate; you can’t disinherit him in Maryland. He’s entitled to half your estate if you have no children and one-third if you do have kids. If you leave him less, he can elect to go against the terms of your will and take the statutory percentage instead, which might throw your estate plan into chaos if you don’t plan for it.
Wills Involve More Than Property
If you have children, another important function of a will is to decide who will raise them when you’re no longer able to do it. You can name a guardian for them -- and if you leave your children the bulk of what you own, you can name a property guardian in your will as well. A property guardian manages their inheritances for them until they reach the age of majority, which is 18 in Maryland. The law allows you to name the same individual as property guardian and as guardians of their persons, or you can name two different people. Another option is to include provisions for a testamentary trust in your will. With this option, your children’s inheritances would move into the trust until they reach an age you specify -- and you can name a trustee to manage the property for them until that time. You’ll also want to name a personal representative, or executor, who is the person you want to manage your estate through the probate process. You can name an alternate personal representative to step in and assume the responsibility if the first person is unable to act for some reason.
Your will isn’t complete until you sign and date it. Maryland law requires that at least two people watch you execute your signature; these are your witnesses, who must sign the document as well. Your witnesses must be competent, meaning that they’re adults and they have the mental capacity to understand what they’re doing for you. Maryland law includes no prohibition against one of your beneficiaries acting as a witness, but you may want to use a neutral third party to avoid complications after your death, such as if an unhappy heir wants to make a case that the witnesses unduly influenced you into writing your will in a certain way.
Self-Proving the Document
Maryland doesn’t require that you have your will notarized, but if you want to take one extra step to streamline the probate process for your loved ones, you can create an additional document that does require notarization. It’s called a “proof of execution of will” affidavit. A form for this document is available from the register of wills in each county. You don’t have to use this form if you’d rather write one of your own, but you also don’t have to include this affidavit with your will because it’s not mandatory. The affidavit states that your witnesses are sure you were of sound mind at the time you made your will and that they watched you sign it; the affidavit self-proves the will. If you attach it to your will, your witnesses won’t have to appear in court to testify to this information after your death.
- The Maryland State Bar Association: Wills and Estates
- Living Trust Network: Maryland’s Requirements for a Will
- The People’s Law Library of Maryland: Frequently Asked Questions About Wills
- Kramer’s Law: Validity of Maryland Wills
- Stein, Sperling, Bennett, De Jong & Driscoll: Elective Share in Maryland (PDF)
- Nolo: Testamentary Trusts
- Baum Law Offices: Does Maryland Recognize Handwritten Wills?
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