Author Archives: A Roa

Maryland Probate: After-Death Planning

Maryland Probate: after-death planning: last will and testament

Sometimes a proposed beneficiary distribution needs to be corrected after the death of a loved one.

Example 1: Grandchildren Born After the Will Was Signed

One common circumstance is when a grandparent’s last will and testament clearly indicates that all of her grandchildren will inherit an equal share. She names all of the grandchildren who are alive at that time. But what happens if the last will and testament is not updated to include grandchildren born after the will was signed? This would involve post-death planning.

Example 2: Estranged Beneficiary

Another example is when a beneficiary is estranged from the decedent and does not want to accept their distributive share. This would also involve post-death planning to perfect this particular beneficiary’s intention.

Addressing Post-Death Planning Concern

The post-death planning process is a tricky process. It often involves the cooperation of many, or all, beneficiaries of the estate and must be approved by the court. During our initial consultation, we help identify post-death planning concerns and create a plan to address those concerns.

Maryland Inheritance Tax

Maryland Probate: inheritance tax
The Maryland inheritance tax is what I like to call the “sneaky death tax.”

For many families, the imposition of the federal estate tax and the Maryland estate tax is not a practical concern, since these taxes only apply to multi-million-dollar estates. However, the Maryland inheritance tax is a 10% tax on all distributions to individuals who are not otherwise exempt. Here are some common questions regarding the Maryland inheritance tax.

How is the 10% Maryland inheritance tax invoiced?

For example, suppose the last will and testament leaves the decedent’s $10,000 diamond engagement ring to her favorite niece. Along with that engagement ring, the niece will also receive a $1,000 invoice for inheritance tax from the Register of Wills. The niece will need to pay the $1,000 in very short order; otherwise, she will be subject to hefty fees and penalties for not paying promptly.

Who is exempt from the Maryland inheritance tax?

There are many notable exceptions to the Maryland inheritance tax. Chief among them is that spouses and children of the decedent do not pay the inheritance tax.

Who is responsible for paying the Maryland inheritance tax?

If a beneficiary distribution is subject to Maryland inheritance tax, and if the last will and testament is silent, then the beneficiary is responsible for paying the inheritance tax.

What if the distribution is made outside of the probate process?

Here is the sneaky part. Even if the beneficiary receives the distribution outside of the probate process (i.e., inherited as a beneficiary as a payable on death account or through a trust), the beneficiary is still subject to this 10% tax! The way this information is captured through the probate process is that the personal representative is obligated to identify all transactions subject to Maryland inheritance tax by completing the Information Report.

How does the Law Office of Adam J. Roa help?

During our initial consultation, we help identify Maryland inheritance tax issues and develop a plan to address them.

We assist families and beneficiaries through the Maryland inheritance tax process by:

  • Identifying the inheritance tax payment obligation
  • Identifying when the tax should be paid
  • Determining if there is a need to file a Maryland application to fix the inheritance tax (This is necessary when the value of the asset is uncertain or fluctuates.)

 

Probate Creditors

Maryland Probate Law: creditors

Creditors are one of the more complicated parts of the Maryland probate process.

One of the core functions of a personal representative is to determine if there are creditors for the estate. Making a mistake regarding creditors is one of the few ways that a personal representative can be held personally responsible for a mistake made in probate administration.

Common Questions

Questions that we are often asked include:

  • How does the personal representative become aware of the various creditors?
  • Should the personal representative contact the creditors or potential creditors?
  • When should the personal representative contact the creditors?
  • Will the creditors sue the personal representative for not paying them?
  • What happens if there are not enough funds in the estate to pay all of the creditors?

Disputing a Creditor Claim

Another common issue is if the personal representative wants to dispute a creditor claim. There is a formal procedure for disputing creditor claims that needs to be strictly processed.

Tax Responsibilities

Taxes are another common issue. The personal representative has the responsibility to pay the decedent’s final income tax return. The personal representative also has the responsibility to pay the estate income tax return, as well as any federal and Maryland estate tax and any Maryland inheritance tax obligations.

Rely on Our Expertise

During our initial consultation with a family going through the probate process, we focus on creditors. We identify the creditors, provide insight into how to collect the needed creditor information, and help address the issue of fighting possible creditor claims.

After the personal representative is appointed and our firm becomes that personal representative’s attorney, our firm—and not the personal representative—becomes the focus for all would-be creditors.

Maryland Probate Process

At its core, the Maryland probate process is the court-required system designed to account for a deceased person’s assets, identify their creditors, and approve the distribution to estate beneficiaries.

For many families, this process can be overwhelming, and many people do not even know where to start. Here is a brief summary to guide you through the probate process.

Probate Process

Maryland Attorney Probate Process

1. Petition for probate

The first place to start is the petition for probate. This is the beginning of the process when the proposed personal representative asks the Register of Wills to accept them as the personal representative and accept the last will and testament presented. You would also need to identify all of the “interested persons” for the estate.

If there is no last will and testament, then the filing of the petition for probate may trigger what is called “judicial probate” and a hearing would occur to determine who amongst the interested persons should be personal representative. Unless excused in the last will and testament or agreed to by all interested persons, the proposed personal representative will have to post bond in order to serve as personal representative.

2. Identify the assets

After a personal representative is appointed, the next step is the more arduous task of identifying probate assets, securing probate assets, and then determining their value. This may involve hiring an outside appraiser.

If a personal representative does not know the whereabouts of the decedent’s assets, then a longer process is involved in an attempt to locate the assets. The personal representative also needs to open a probate estate account and complete a form—called the Information Report—to determine if there are Maryland inheritance tax issues.

3. Complete an administration account

Once the estate assets are identified and secured, the personal representative needs to account for estate expenses and income on a regular basis through the completion of an administration account.

After at least six months after the date of death (or six months after the appointment of a personal representative, if medical assistance is involved), then the estate may begin the process of closing by filing a final administration account. Common issues that slow down the closing process include the sale of the house or the filing of income tax, inheritance tax, Maryland estate tax, or federal estate tax.

Streamline the Process for Your Family

While this brief summary may give the impression that the probate process is straightforward, there are many potential issues at each step that can make the probate process more complicated.

Our approach is to work with the family to streamline the probate process. During our initial meeting, the goal is to identify any unique issues with the probate process for that client, identify paths to streamline the process, and develop a game plan to tackle the probate process.

Assisted Living Negligence: Key Issues to Consider

There are two key issues to consider for facility negligence:

  1. What is the harm that was caused?
  2. Did the facility breach their standard of care?

A Typical Example

Let’s suppose your mother lives in an assisted living facility. She needs an aide attending to her every time she walks because she’s considered at risk for falling. You’ve had no issues with the facility so far.

One day your mother wants to take a walk and is assisted by an aide. Afterwards, she rests by watching television in the main hall. When she wants to go back to her room, however, the aide that assisted her is not around. The aide’s shift had ended, and instead of waiting for the tardy night shift aide, she simply left.

So your mother decides to walk back to her room on her own. In this attempt, she falls and breaks her leg. She’s admitted to the hospital, suffers complications, and passes.

Key Issues in Negligence Cases

In this case, the facility clearly breached their standard of care. There wasn’t an aide to assist her in moving when she needed it. There was also harm as a result of that breach (assuming the hospital was not at fault).

In other cases, the extent of the damages might not be clear. For example, your parent might still be going through rehabilitation or have an extended hospital stay.

Don’t Be Fooled by Assisted Living Negligence

Don’t let the assisted living facility convince you it’s not their fault. Falling is not to be accepted as just part of the risk of living in that kind of facility.

Take Prompt Action

Assisted living and nursing home negligence matters are complex and time-sensitive. While the example above seems relatively straightforward, there are a number of factors to consider. It’s important to document the possible negligence now, including the issues, events, and names of interested persons.

Give our office a call to discuss your situation. The first half hour of the consultation is free. Our firm can help you hold the facility accountable for their wrongdoing.

Nursing Home Negligence: Medication Mismanagement

In many instances of nursing home or assisted living negligence, medication mismanagement is the direct cause of other issues, such as a resident falling down.

It All Starts Well

Consider this example. Your mother is a resident in an assisted living facility. She needs 9 different medications given to her on a daily basis. She can independently move from room to room and is not considered at high risk for falling.

Problematic Signs

However, you eventually notice that your mother’s pill supplies are being exhausted faster than anticipated. So you remind the assisted living facility of the physician’s prescriptions, including the proper dosages and reasons for medication management.

Signs of Nursing Home Negligence: The Fall

One day, a staff member from the assisted living facility calls to inform you that your mother “unexpectedly” fell. She sustained various injuries and is now at the local hospital suffering from a broken hip and a concussion.

The Untold Cause

What they didn’t tell you was that the nurse in charge of medication management over-medicated your mother. Normally your mother would have no difficulty walking, but due to the side effects, she became drowsy and weak. This led to her stumbling, falling, and injuring herself.

Proving the Assisted Living Negligence

It will be up to you to prove the negligence in this matter. The assisted living facility is being paid to take care of your parent. Don’t let them get away with their negligence.

Call our office, and let us fight for you. The first half hour of the consultation is free.