What is Probate and How Does It Work?
Understanding Probate in Maryland
Definition: Probate is a court supervised process that involves identifying the deceased’s assets, settling debts, and distributing the remaining assets to the beneficiaries. An “heir” is a beneficiary when there is no Will; and a “legatee” is a beneficiary named in a Will. This process is often overseen by the Register of Will (Administrative Probate) or the Orphans’ Court (Judicial Probate) in the County in which the decedent resided. Generally speaking, Administrative Probate is when a Will is not contested and is overseen by the Register of Wills’ Office. If there is contest to a Will, the Estate will go to Judicial Probate and the Estate will be overseen and administered by the Orphans’ Court.
Types of Probate:
Regular Estate Administration:This process applies when the total value of the Estate exceeds $50,000.00 (or $100,000.00 if the only beneficiary is a surviving spouse). Its more complicated and generally takes a minimum of eight (8) months to conclude, and has costs associated with bonding, publication and court auditor costs. Additionally, the Notice of the Estate is published in a newspaper, and creditors may file claims that must be paid.
Small Estate Administration: If the estate is valued at $50,000.00 or less (or $100,000.00 is the spouse is the only beneficiary), a simplified process is available for quicker resolution and fewer administrative requirements (and costs).
Key Steps in the Probate Process
- File the Will: If the decedent executed a Will, the original must be filed with the Register of Wills in the county in which the deceased person resided. A copy can be used if the original is lost or destroyed. If the deceased person did not have a Will, the Estate will be opened “Intestate” which means no Will was executed. The original death certificate is also needed to open the Estate. Copies are not accepted.
- Petitioning for Probate: The person named in the Will, or if no Will, a person with priority (surviving spouse, father, mother, brother sister, child) must file a Petition to open the Estate. Mr. Wittstadt will prepare the petition for you and open an Estate.
- Appointment of Personal Representative: Either the Register of Wills or the Orphans’ Court will issue “Letters of Administration” appoint the person named in the Will as the “Personal Representative” to manage the Estate. That person is often referred to as the “Executor” but in Maryland that person is called the “Personal Representative.” “Letters of Administration” is the legal document required to conduct business on behalf of the Estate.
- Inventory and Appraisal: The Personal Representative must identify, inventory and appraise all assets of the deceased, providing an account of same. Creditors and unknown heirs are notified of the Estate and the timeline to make claims. All claims must be satisfied before any assets can be distributed to the beneficiaries. If your loved one has outstanding debt when the decedent dies, Mr. Wittstadt will work with you and the creditors to make sure the debts are valid. Mr. Wittstadt will even work to negotiate a fair settlement whenever possible.
- Duration and Costs: The probate process can take several months (at least 8 months for a Regular Estate) to years depending on the complexity of the Estate and disputes between beneficiaries. (Fun Fact: Elvis Presley died in 1977. His Estate is still open.) Costs may include publication in local newspaper; bonding (insurance); court auditor’s fees; attorney fees; real estate commissions if a home is to be sold on the open market; and Personal Representative commissions. Attorneys’ fees are often much less than the Personal Representative’s Commissions. Honestly, attorneys’ fees are negotiated based upon the value of the estate and the complexity of the issues involved therein; but Mr. Wittstadt always strives to be the most competitive attorney when it comes to attorneys’ fees.
- Distribution of Assets: Estate assets should only be distributed after the Court enters the final order. Administrative expenses, funeral costs, inheritance tax, and other debts must be paid before any distribution to heirs or legatees can occur. Mr. Wittstadt will file all the documents required to obtain the Court Order and help you distribute the assets properly.
Conclusion: Understanding the probate process in Maryland is crucial for managing the estate of a loved one. It ensures that the decedent’s wishes are honored and that all legal obligations are met.
Hire an Attorney
For specific guidance, consulting with an attorney who is experienced in Maryland probate law is highly recommended. Contact Mr. Wittstadt at 410-525-WILL or