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Five Tips to Understanding the Maryland Probate Process

October 26th, 2010

The death of a loved one opens the door to countless legal issues concerning the deceased person’s estate and private affairs. Probate law is the process by which a deceased individual’s property and assets are distributed, and these laws differ from state to state. The presence of a will simplifies the probate procedures by legally stating the intentions of the deceased, but factors such as taxes, debt and joint ownership can significantly lengthen the process. While probate law in Maryland is very straightforward, there are several tips that you should keep in mind when dealing with a probate case.

1. The Will

The distribution of an estate depends primarily on the conditions set forth in a deceased person’s Last Will and Testament. The Last Will and Testament may be on file with the Register of Wills in the Maryland County where the decedent resided and, if so, it can be obtained from the office. When the Will is initially drafted, an executor or personal representative is typically chosen to carry out the conditions of the Will.

If more than one Will exists, generally the most recent document is upheld unless a previous version of the Will is republished. The intent of a Will may be altered under special circumstances, such as divorce or remarriage and the resulting offspring.

2. Intestate Succession

According to Maryland probate law, a personal representative is appointed by the state based on the rules of succession when no executor was specified by the decedent.  In the event that there is no will, the state will declare an “intestate succession” and divide the decedent’s property between the surviving spouse, children or the next living blood relatives.

However, other factors can still affect the distribution of the estate, including the age of the decedent and the existence of surviving relatives. For instance, when the decedent is a minor, the closest living relatives would be the child’s parents.  However, a parent who was absent and failed to support the minor for three or more years preceding the child’s death would forfeit their claim to succession.

3. Probate Fees

The Register of Wills assesses a probate fee that is proportionate to the size of the estate being distributed.  If the value of the estate increases after the initial probate process, the fees may increase as well.

4. Settling Debts

The decedent’s personal representative is responsible for issuing a public notice announcing the initiation of the probate process. The decedent’s creditors are then granted an opportunity to file a claim for compensation of debts. If the individual’s assets are not sufficient to cover every claim, the personal representative must pay the debts by order of importance. Maryland probate law requires that fees to the Register of Wills be paid first, followed by expenses such as administration costs, funeral expenses, family allowances, and taxes.

5. Disputes with Creditors

Upon notifying debt claimants of a probate account, the personal representative typically has the option to bar further claims after a specified time. Failure to do so can lead to a personal dispute between the personal representative and the decedent’s creditors, resulting in the loss of assets received from the estate.  However, the representative cannot be held liable for expenses that exceed the amount received from the distribution.

Kathryn McDonough – Montgomery County AttorneyMaryland Probate Law