A last will and testament is a crucial document all adults should have. You may need to figure out how to create a will or what Maryland law requires for a valid will. We have the answers to your FAQs to explain everything you need to know.
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What If I Die Without a Will in Maryland?
When a person dies with a will, their personal property, assets, and real estate passes to their heirs according to the term of their will. If a decedent dies without a will, called dying “intestate,” Maryland intestacy law determines who inherits the estate.
If there is a surviving spouse or children, they inherit the decedent’s estate. If not, your next of kin, such as parents, siblings, or grandparents, will inherit. The estate goes to the state if they cannot find your next of kin. So, if you have a partner but are not married or a stepchild that you have not adopted, they may be left out of your estate.
What Does a Will Do?
A Maryland will lets you decide who manages your estate, inherits your property, and cares for your minor children. Here are some typical things you can do in your will:
- Name a personal representative or executor who is responsible for locating your assets, submitting your will to the probate court and moving it through the probate process, and carrying out your wishes.
- Identify and give away specific personal property and real estate to the people and loved ones you select
- Name beneficiaries to receive the remainder of your assets
- Name guardians for minor children
- Make charitable bequests
- Name caregivers for pets and set aside funds for their care
Your personal representative gathers your assets, manages your estate, distributes gifts to your beneficiaries, and files final tax returns. Additionally, your Maryland will streamlines the probate process, saving your family members and other loved ones time and money. You determine how to handle your estate so the probate court doesn’t have to do it.
What Doesn’t a Will Do?
A will has a lot of authority, but it cannot distribute some types of assets. These assets, called non-probate assets, pass according to the terms of their own legal documents. They transfer outside of your will and do not go through the probate process. These may include:
- 401(k)s, IRAs, and Keoghs
- Property owned as joint tenants with right of survivorship
- Trusts, including living trusts and assets owned by trusts
- Funds in payable on death or transfer on death bank accounts
- Life insurance payments (to beneficiaries other than to the estate itself)
You may want to make a list of all your accounts and policies and check that they have the correct beneficiary designations. Be sure to name a backup beneficiary in case your primary beneficiary dies before you. Any assets without a beneficiary go to your estate for the court to distribute during the probate proceeding.
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Who Can Make a Will in Maryland?
To make a will in Maryland, the person making the will (called the testator) must meet the following criteria:
- Age: 18 years of age
- Sound Mind: Must be of sound mind and memory. Being of sound mind means the person making the will understands what they own, who their natural heirs are, how they want to distribute their property, and that they are signing their will.
A testator must have a sound mind, called testamentary capacity, at the time they make and sign the will. Maryland residents with concerns about their testamentary capacity should consult an estate planning attorney for legal advice and assistance.
Does Maryland Have a Statutory Will?
Maryland does not have a statutory will, a particular form you must use to create your will. You can either create your own will or hire an estate planning attorney for legal advice. Many choose to make their will with online resources such as Trust & Will that help draft a will conforming to Maryland law.
What Types of Wills Does Maryland Accept?
The most common type of will is typewritten or printed and then signed by the testator. However, it is a good idea to be familiar with these other types of wills and if they are acceptable to a Maryland court:
- Handwritten Will: Also called a holographic will, this is a will written entirely in the testator’s handwriting and signed without witnesses. In Maryland, holographic wills are only permitted for members of the armed services if they write the will entirely in their handwriting and sign when they are outside of the U.S. or U.S. territories. It becomes void one year after the testator leaves the military.
- Oral Will: An oral will, a will that is spoken, is not valid in Maryland.
- Electronic Will: Electronic or digital wills, wills signed and witnessed through electronic means, are permitted with strict requirements. The testator, the witnesses, and a supervising attorney must be in each other’s “electronic presence” and sign the will with videoconferencing and electronic signatures. The supervising attorney then has to print a certified will which is the original will. This type of will allows people to complete a will if they are in a hospital or are immune compromised and cannot be physically in front of witnesses.
Any type of will other than a standard printed and signed will is more open to challenges and puts the testator’s wishes in possible jeopardy. Electronic and holographic wills are helpful if there is no other option, but they should not be your first choice.
Can I Make My Own Will in Maryland?
Yes. You can make your own will in Maryland. You do not have to use an attorney to draft your will. If you know who you want to handle your estate, what assets you have, and who you wish to receive those assets, you are ready to make a will. The advantage of using an online will drafting service, such as Trust & Will, is that it allows you to customize and update your will whenever you want.
How Do I Make My Will Valid in Maryland?
To make sure your will is valid in Maryland, be aware of the following components:
- Signature: The testator must sign the will themselves or have someone else sign it for them at their direction in their presence.
- Witnesses: Two credible witnesses must be in the testator’s presence when the testator signs the will. An interested witness is one who is also a beneficiary under the will. Maryland does not prohibit interested witnesses, but it is best to use disinterested witnesses because using an interested witness may subject your will to challenges of undue influence.
- Notary: A typed, hard copy will signed by the testator does not need a notary public’s signature.
- Self-Proving Affidavit: Maryland does not require a self-proving affidavit. This sworn, notarized statement is attached to the will, signed by the testator and witnesses, and is admissible in court in place of witness testimony.
Can I Disinherit My Spouse in Maryland?
If you leave your spouse out of your will or state that you are disinheriting them, they have the right to an elective share, a part of a decedent’s estate that a spouse may claim if left out of the will. In Maryland, your spouse may receive either one-half or one-third of the estate, depending on if there are surviving children or grandchildren. In addition, the surviving spouse gets a $10,000 personal allowance.
Can I Disinherit My Children in Maryland?
Yes. You can disinherit your children in the state of Maryland. But each unmarried child under the age of 18 receives $5,000. If you want to disinherit a child, it is best to state this in the will so that a court does not think you forgot to include them.
What Estate Planning Documents Should I Have in Maryland?
In addition to your original will, there are other estate planning documents you should create, including:
- Power of Attorney. A power of attorney allows you to appoint someone as your agent to make financial decisions for you if you cannot do so. Your agent has a fiduciary duty to act in your best interests. You determine what powers to grant your agent and when your agent’s authority begins and ends.
- Health Care Directive. A health care directive, also called a living will or advance medical directive, lets you name a person to make healthcare decisions on your behalf if you are unable to. It also allows you to make your wishes known about life-sustaining treatment and end-of-life care. If you don’t leave your wishes, the burden is on your loved ones to figure out what you want.
Fortunately, making a valid will and creating other Maryland estate planning documents is easy with online estate planning templates.