When your loved one passes away, you and your family have both large and small issues to worry about – all while grieving your loss. A big issue likely involves determining how his or her assets will be distributed.
If the person who died (known as the “decedent”) left a Last Will and Testament validly executed according to State law, it will give you guidance regarding the disposition of his or her assets. If the decedent died without a Will, you will need to follow the statutory scheme laid out in Maryland’s intestacy laws.
Additionally, a decedent may create other estate planning documents such as an Irrevocable or a Revocable Trust which would provide for the distribution of the decedent’s assets thereby minimizing or avoiding probate altogether.
What are probate assets?
Your first step is to do some research into the decedent’s assets and divide those assets into two groups: probate assets and non-probate assets.
Probate assets
These assets are titled to the decedent’s sole name and do not pass automatically to someone else at death. Examples include a traditional bank account with no other name associated with the account, or real estate titled solely in the decedent’s name.
These assets must go through probate before they can be distributed to an individual or charitable organization named in the Will or to heirs under the intestacy laws, whichever is applicable.
Non-probate assets
These assets automatically pass by operation of law directly to another individual upon the decedent’s death. This may occur through joint ownership of the asset where there is a surviving owner and, a financial account which bears a valid beneficiary designation. Examples include a retirement account with a named beneficiary, or a house owned as Tenants by the Entirety with a surviving spouse or as joint tenants with rights of survivorship with a spouse or another individual.
Assets held in an Irrevocable or Revocable Trust are also examples of non-probate assets.
Once you gain a thorough understanding which types of assets (probate and/or non-probate) are owned by the decedent, you can determine whether the probate process is necessary.
Do I need to go through probate?
Not every Estate needs to go through the probate process. You will need to initiate a probate proceeding to administer property that is tilted solely in the decedent’s name (without a valid beneficiary designation). Maryland Law provides that, if the gross value of the probate property is equal to or less than $50,000, a Small Estate probate administration proceeding will be sufficient. If the gross value of the probate property is equal to or less than $100,000 and The decedent’s surviving spouse is the sole beneficiary and/or heir of the probate property then a Small Estate probate proceeding will be sufficient. If the gross value of the probate property exceeds either of these filing thresholds, then, a Regular Estate probate administration proceeding in the Orphans’ Court is required.
How do I get started?
If you have possession of the original Last Will and Testament, you need to submit the Last Will and Testament to the Register of Wills Office in the County in which the decedent was domiciled. If you are the person named in the Will to act as the Estate’s Personal Representative, the Orphans’ Court will require certain probate paperwork be filed by you or on your behalf before it will authorize you to act on behalf of the Estate.
Although Maryland does not require you to hire an estate/probate attorney in order to file a probate administration proceeding with the Court, you may find one necessary. You will need to complete many steps as the Personal Representative, and some of them are complicated and time-consuming.
Some people are surprised to find that the full probate administration proceeding can take a year or more to complete, even with the assistance of a trained estate/probate attorney. Pursuing a probate administration proceeding without an attorney can significantly increase that amount of time. The Estate usually covers the cost of attorney fees if there are sufficient Estate assets to do so.
