Many seniors prepare their Wills with the help of experienced estate planning attorneys. There are many reasons why having a Will is advisable. Wills determine exactly who gets your assets, identify who the guardian of your children will be, and selects the personal representative, the executor, to manage your estate. If you do not have a Will when you die, then your assets are distributed according to the intestate laws of Maryland or Washington DC. If both parents die before the children reach the age of majority (normally 18), then a surviving relative must seek court approval to raise the children.
The intestate laws (both Maryland and DC) only apply to property that passes through the decedent’s estate. Any property that you own that doesn’t pass through the estate/probate is distributed based on the applicable legal documents. For example:
- If you own your home with your spouse as tenants by the entirety, your spouse is entitled to your home when you die.
- If you and another person (a relative or a nonrelative) own your home as joint tenants with a right of survivorship, the survivors are entitled to the home when you die.
- Joint property. The same principles apply to any other property, such as a car, that is owned jointly with a right of survivorship
- Life insurance proceeds are paid directly to a named beneficiary. If the policy doesn’t name a beneficiary, the proceeds do pass through the estate.
- IRA and other retirement accounts may pass directly to a named beneficiary.
- Payable on death accounts are paid to the named beneficiary. Otherwise, the accounts pass through the estate.
- Trust agreements. If you created a trust agreement before you died, then the assets that are placed in the trust are handled according to the trust agreement terms.
What are the Maryland and DC intestate laws?
Maryland’s intestate laws
Title 3 – Intestate succession and statutory shares – provides that the share of the surviving spouse is as follows:
- If there are no surviving issue or parents, then the spouse gets the entire estate. Issue are your direct descendants – typically your children and grandchildren.
- If you have minor children, the spouse receives ½ of the estate and the minor children receives the other ½
- If you don’t have any minor children but you do have surviving issue – the spouse receives the first $15,000 and ½ of the remaining estate (the residue)
- If there are no surviving issue, but your parents are alive – the spouse receives the first $15,000 and ½ of the remaining estate.
If there is no surviving spouse or you are divorced from your spouse – the estate is distributed “equally among the surviving issue, by representation” as defined elsewhere in the Maryland state statutes.
If no issue and no spouse survive you, then the Maryland intestate laws provide that your estate will be distributed to other relatives according to state law. The following relatives “may” be entitled to a share of your estate depending on different factors:
- Your parents and your siblings
- Your grandparents and your cousins, nephews, and nieces
- Your great-grandparents
- Your stepchildren
There are additional Maryland intestate laws that may also affect how your estate is distributed and who can receive a share of the estate. For example, adopted children generally inherit your assets as if they were your natural children.
If you don’t have any family, then your property will “escheat” (transfer) to the state of Maryland.
Washington DC’s intestate laws
Washington DC’s intestate laws are similar but not identical to Maryland’s intestate laws.
The spouse (and domestic partner) receives his/her amount based on the following factors:
- If there are no descendants, siblings, or parents – your spouse/domestic partner gets everything.
- The spouse/domestic partner receives either 2/3, ¾, or ½ of the estate – depending on a variety of factors including the status of your descendants.
The children split the estate equally if there are no other descendants and no spouse/domestic partner.
The parents of the intestate decedent share the estate if there is no spouse and no descendants
An experienced Washington DC intestate lawyer can explain all the distribution alternatives depending on the relationships and who survives.
Who raises your children if you die before the children become adults?
In both Maryland and Washington DC, if you die and your spouse died before you or at the same time as you, your children need someone to be their guardian. The guardian is the person who raises your children – provides shelter, food, clothing, love, companionship, discipline, and all the necessities and guidance parents provide to children.
If you don’t have a Will, then a relative will need to request approval from the court to become your child’s (children’s) guardian. The relative will need to petition the court for approval to be appointed guardian. The judge must approve the appointment. Other relatives may also seek to become a guardian which means the judge will have to choose which person (such as a sibling or an aunt) is the better choice.
If no relative seeks to become guardian, then your children will be raised by Maryland or Washington DC depending on where you lived.
What are the benefits of having a Will in Maryland or Washington DC?
There are three core reasons why residents of Maryland or Washington DC should prepare a Will:
- Deciding who gets your estate and what assets they receive. You can decide which relatives, friends, and organizations are the beneficiaries of your estate. You can clarify whether stepchildren or other relatives should receive a share. You can clarify who owns your business. You can decide to make distributions in uneven shares or to omit a relative if you want.
- Appointment of a guardian. You don’t want the State or District to decide who raises your children. You should choose guardian(s) you trust such as siblings, other relatives, or even friends.
- Appointment of an executor. By appointing an executor, you predetermine which person you trust will handle your assets and debts. Otherwise, a relative must request court approval which can take time and be expensive.
Consult with Experienced Maryland and Washington DC Estate Lawyer
Anyone who is older, has children, or has significant assets should prepare a Will. A carefully prepared Will protects the people you care about the most. A Will can help reduce conflict and acrimony between family members by placing your desires for your family and others (such as charities and nonprofits) in writing. Without a Will, your decisions are replaced by a judge who doesn’t know your family.
At The Law Offices of Thomas Stahl, we review all your concerns about what happens when you die. We explain the various ways you can avoid probate of some of your assets, minimize estate taxes, and care for your family – especially if a family member has special needs. We explain when you should consider trust agreements in addition to Wills. To discuss your estate goals, call our seasoned Maryland and Washington DC lawyers at (410) 696-4326 or (202) 964-7280, or reach us online, to schedule a consultation.