A last will and testament is an important step in planning the distribution of your estate (real and personal property) upon your death. Maryland wills permit the testator, the person writing the will, to provide for a spouse, children, other loved ones, and pets after his death as well as to name a personal representative for the estate.
Not to be confused with a will, a Maryland living will, or advance directive, provides instructions should you become incapacitated and incapable of making decisions regarding your medical care.
Do You Need a Last Will and Testament?
Although a last will and testament is not legally required, without a will, state laws (called laws of intestacy) will determine the distribution of the deceased’s assets. The outcome may not coincide with the decedent's (the person who passed away) wishes, however, which means it is generally advisable to create a last will and testament.
In addition to providing the opportunity to direct asset distribution, a Maryland last will and testament also allows the testator to make a charitable gift, create a trust for any person, name a legal guardian for minor children, or create a “pet trust” in order to provide for the care of an animal after its owner’s death.
Before the terms of a will can be accepted, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person. Once the will is proven valid in probate court, the executor can then pay off any debts and taxes owed by the estate and then distribute the testator’s property according to the will.
Maryland has administrative probate for uncontested wills and judicial probate for contested wills. In either situation, the will must be filed with the Register of Wills in the county where the decedent resided at the time of death in order to open the estate, either as a small (valued at $50,000 or less) or regular estate.
Intestacy: Dying Without a Will
Someone who dies without a will is called “intestate,” which invokes the strict laws of intestacy. In Maryland in the absence of a will, a surviving spouse inherits the entire estate unless the decedent also has minor children, in which case the spouse and children each inherit half. If the children are adults, the spouse inherits $15,000 of intestate property plus half of the balance and the descendants inherit the rest. A decedent’s parents are also entitled to a part of the estate if there is a surviving spouse but no children or descendants.
If there is no surviving spouse, descendants, or parents, other relatives, including siblings and grandparents, will inherit depending on the closeness of the relation.
Exceptions to Ability to Distribute Property
Not all property can be distributed according to a will. Some common exceptions include the following:
- Property owned in joint tenancy with right of survivorship
- Property owned as tenants in the entirety
- Life insurance policy and retirement account proceeds
- Assets held in a revocable living trust
Form a Last Will in Maryland
The basic requirements for a Maryland last will and testament include the following:
- Age: The testator must be at least 18 years old.
- Capacity: The testator must be of sound mind.
- Signature: The will must be signed by the testator or by someone else in the testator’s name in his presence, by his direction.
- Witnesses: A Maryland will must be signed by at least two witnesses, who should not also be beneficiaries in the will.
- Writing: A Maryland will must be in writing.
- Beneficiaries: A testator can leave property to anyone.
Other Recognized Wills in Maryland
Maryland recognizes holographic (handwritten) wills only if made by those serving in the armed services of the United States and if signed outside the United States or its territories. Such a will is void one year after the testator’s discharge from service, subject to other restrictions.
Changing a Maryland Last Will and Testament
A Maryland will may be changed at any time by codicil, which must be executed in the same way as a will.
Revoking a Maryland Last Will and Testament
The revocation of a Maryland will can be accomplished by executing a subsequent will or by “burning, cancelling, tearing, or obliterating” the document, done by either the testator or by someone else at his direction in his presence.
In Maryland, if the testator gets married or has a child (by birth, adoption, or legitimization), the previously executed will is revoked. If the testator gets divorced after the execution of a will, those provisions relating to the ex-spouse are revoked.
When you are ready to make a last will, LegalZoom can help. You can get started online in three easy steps.