The death of a loved one or family member is, without a doubt, one of the most emotionally trying and difficult times in a person’s life. Often families will come together to share stories of their loved one, pour over old photographs, and sift through decades worth of jewelry and knick-knacks, nostalgic for the days that were. Along with the memories and sorting of old clothes and fine china, comes an enormous responsibility for one person. Someone in the family is responsible for making sure that the belongings owned by their loved are divvied up amongst the surviving family members thoughtfully and fairly. But who is responsible for this? And how do they decide who gets what? Read on to learn more about the probate process and how it works in Maryland.
What is Probate?
Probate is the official court process through which an “estate” of a deceased person (decedent) is distributed to the heirs and/or designated beneficiaries and any outstanding debt is paid to creditors. The literal definition of “probate” is “to prove”; meaning to prove the validity of one’s Will. An “Estate” refers to all of a deceased person’s assets – any legal right, interests and entitlements to property of any kind. Typically, an estate is settled according to the decedent’s Last Will and Testament, or if there is no Will, according to state laws. A person, often a surviving spouse or adult child, is listed by the decedent in their Will, or determined by the court if the decedent did not make a Will (or it can’t be found), to be the Personal Representative (often thought of as an Executor) of the estate. It is the Personal Representative’s responsibility to gather all of the assets that were owned by the decedent and then either sell or distribute those assets and to pay bills, taxes and ultimately distribute all remaining assets among the surviving heirs.
In Maryland, the typical process to settle an estate through probate goes a little something like this:
- The Will is filed in the Orphan’s Court of the county in which the decedent lived.
- A Petition of Probate is filed, requesting the appointment of a Personal Representative (PR). If there is no Will, the court will appoint the PR. Notice of the opening of an estate must be given to all heirs and beneficiaries.
- The Register of Wills will issue a “Letter of Appointment”, which grants the PR the legal authority to act on behalf of the estate.
- Once appointed, a notice of the Estate is placed in a local newspaper, giving creditors a six-month window to file any claims.
- An inventory of the estate must be submitted within three months of the filing of the Petition and updated inventories must be submitted on a six-month basis until the estate is closed.
- Once all creditors and taxes have been paid, the PR will then file a final accounting which must be approved by the court in order to close the estate.
- Once approved, the PR will distribute the remaining assets of the estate to all beneficiaries.
In simpler terms, the purpose of the probate process is to prevent fraud. It freezes the decedent’s estate until a court can ensure: the validity of the Will; that all relevant people have been notified of the death; that all taxes and creditors have been paid; and that all property of the estate has been identified and appraised as necessary. Once that is done, the court will approve the final accounting of the estate and allow for a final distribution of the property and close the estate.
What is the Register of Wills?
The Register of Wills is responsible for appointing PRs and for overseeing the proper and timely administration of these proceedings. They also assist and advise the public in the preparation of all required forms; maintain and preserve the permanent record of all proceedings; serve as the Clerk to the Orphans’ Court; track estates and refer delinquent matters to the Court; determine and collect inheritance taxes and probate fees/court costs; audit accounts of personal representatives and guardians; mail various notices and court orders to interested persons; and, verify compliance with court orders. They also provide safekeeping for Wills of living persons.
If there are any issues throughout this process, the Judges of the Orphan’s Court are responsible for conducting hearings and make additional rulings as needed.
How long does the Probate process take?
This depends on a number of factors, really: the timing of all court proceedings, the size and type of assets within the estate and if there are any disputes over distribution of assets or the legality of the Will. The American Bar Association estimates that, on average, the typical probate process takes between six and nine months to complete. But, keep in mind that there are certain mandatory timelines governing the probate process.
What if there is no Will?
If there is no Will present, or if the Will does not outline beneficiaries for all parts of the estate, then the court-supervised probate process will step in. The PR will be appointed and the Register of Wills and Orphans Court will assure that all matters of the estate are handled responsibly and fairly. While some estates are not required to go through the probate process (more on that later…), any estate for which there is no Will is required to go through the probate process.
What property is not included in Probate?
There are some assets (called non-probate assets) that do not enter probate. This can include, but is not limited to: life insurance policies or bank accounts that have designated beneficiaries, real estate or personal property that is held in joint ownership with rights of survivorship. And property placed in a Revocable or Irrevocable Trust generally avoids the probate process as well, however, the laws governing Trusts are very specific and you should ensure you have a full understanding before taking this step. Although the probate process may feel overwhelming, putting your property into a Trust may not be any easier.
Can an attorney help me with all of this?
Absolutely! In fact, hiring an attorney to assist you now with your estate planning can help your loved ones avoid a more complicated probate process later and ensure that your assets are distributed the way you want them, in a timely and cost-effective manner. It may feel pretty uncomfortable to plan for your death while you are still alive, but estate planning now will ease the burden on your loved ones and they will be eternally grateful. Give Ferrante and Dill, LLC partner Jennifer Dill a call today at (410) 535-6100 or send an email to firstname.lastname@example.org. She can help you determine the steps necessary to ensure appropriate distribution of your assets after you are gone.