Category Archives: Probate

Contesting a Last Will and Testament

Suppose you have a loved one who has passed, and all of a sudden there is a brand-new last will and testament that either greatly reduces your share or leaves you out completely. What do you do?

A Common Scenario for Contesting a Last Will and Testament

Here’s an example of a common situation. As an only child, Katie enjoyed a great family life with her loving parents. Sadly, Katie’s mother was diagnosed with a terminal illness and passed away. Years went by, and Katie’s dad got remarried. By this time, Katie was a young adult, living on her own. She didn’t really get to know her new stepmother and younger stepsister, who moved in with her dad. A year later, Katie’s father was in a serious car accident. He eventually slipped into a coma and died.

Katie had assumed that she would inherit most of her father’s estate. However, she was shocked to discover that a new last will and testament left her with only 25%, and the rest to her stepfamily. Katie suspected that her stepmother had forged her dad’s signature on the new will while her dad was in the hospital. Katie was not going to let her stepmother “rob” her of her rightful inheritance. So, Katie decided to take legal action and contest the last will and testament.

How You Get Notified of a Last Will and Testament

When someone dies, the original will is “probated” and submitted to the Register of Wills office in the county where the decedent resided. When the original will is probated, both the new beneficiaries and all of the “intestate heirs” will receive notice of the new last will and testament.

Intestate heirs typically include the surviving spouse and the decedent’s children. If you are an intestate heir you will be notified of the opening of the estate. If you are not an intestate heir (i.e. more remote relative, stepchild, etc.), you may not receive notice that the Register of Wills is probating this new will.

Contesting a Will Now or Never

It is incumbent for you to challenge the last will and testament in a timely fashion. Otherwise, your right to contest the last will and testament will be waived (a most unfortunate circumstance). This means that if you do not file action to challenge the new will in a timely fashion—even if you did have the best case to overturn the last will and testament—then you will have forever lost the right to challenge the will.

Four Ways to Contest a Last Will and Testament

Once you are at the point where you believe the last will and testament is invalid (for example, the decedent was not competent to sign the document or there is no way he/she would sign this document), you need to understand that there are four basic methods to invalidate the last will and testament. Each of these are independent rights to challenge the last will and testament.

  1. The signature is fraudulent.
    If the signature is a fraud, then typically we would need a handwriting expert to analyze the signature, along with a good number of signatures that we know are valid.
  2. The last will and testament was not executed properly.
    For a last will and testament to be executed properly, the signature must be witnessed, and there must be two witnesses to this signature. Common issues are that the witnesses were not present when the signature was made or that someone else signed on the decedent’s behalf. Execution issues are common when the last will and testament was obtained online.
  3. The decedent was incompetent at the time it was signed.
  4. The decedent was subject to undue influence at the time it was signed.

If the decedent was incompetent or subject to undue influence, the path to invalidate the last will and testament is more complex. It’s important to have eyewitness observations of the decedent (i.e. the decedent did not drive, could not dress himself, often repeated sentences, forgot what was talked about 10 minutes later, made bizarre accusations of people stealing items, no longer cared about paying bills, etc.). Ultimately, however, we will need to obtain the medical records of the decedent.

In order to get the medical records of the decedent, a challenge to the last will and testament needs to occur. Once this process begins, a subpoena may be issued to the hospital, nursing home, assisted living facility, or physician’s office at issue. It is certainly important to know which place is at issue.

Once we get eyewitness testimony and receive the medical records, we have an expert review all of this information. The expert will verify if the information is sufficient to determine if the decedent was incompetent or subject to undue influence. Undue influence is a seven-factor test, with the most important factor being if the decedent was in a weakened physical or mental state. It is important to note that incompetency is a higher standard to meet than undue influence.

Even with the expert opinion, we need to convince the court that this evidence rises to the standard of incompetency or undue influence.

Attorneys Help Protect Your Loved One’s Intentions

Unfortunately, it is not uncommon for someone who is in a weakened condition to be preyed upon by others who seek financial advantage. It is up to you to fight back to protect your loved one’s true intentions. We’re here to help you.

Contesting a Will and a Beneficiary Designation Change

When you consider contesting a last will and testament, you might also have to consider contesting changes to certain additional assets—for example, an account that has had a change in beneficiary designation or a change to joint account status.

A Common Scenario for Contesting a Last Will and Testament and Beneficiary Change

Let’s go back to the example of Katie’s situation. Katie discovered that the beneficiary designation of her father’s savings account had been changed. The beneficiary was no longer Katie—it was now her stepmother. Katie was afraid that her stepmother would start spending all the money in her father’s savings account. So, Katie needed to take legal action immediately to contest both the last will and the saving account’s beneficiary designation change.

Probate Assets vs. Non-Probate Assets

Challenging a last will and testament only impacts those assets that are “probate assets.” Probate assets need a court-supervised probate process in order to get passed on to the beneficiary. Non-probate assets can be given directly to the beneficiary without a court process.

An account is likely to be considered a “non-probate asset” if:

  • The account has a changed beneficiary designation or
  • Right before the decedent’s death the account was changed to a joint account

If there are problems with non-probate assets, then challenging the last will and testament is not your only concern. You will also need the Circuit Court to determine if the change in beneficiary designation or the creation of the new joint account is valid.

Four Ways to Contest a Last Will and Testament and Beneficiary Change

The four ways to contest a last will and testament also apply to beneficiary changes:

  1. The signature is fraudulent.
  2. The document was not executed properly.
  3. The decedent was incompetent at the time it was signed.
  4. The decedent was subject to undue influence when the document was signed.

Did a financial power of attorney change the beneficiary?

It is common for a financial power of attorney to change a beneficiary designation. It is important to know if that is the case in your situation. If so, then the issue becomes whether or not the financial power of authority had the authority to make the change. Sometimes the financial power of attorney signs documents when their power of attorney is invalid. Or sometimes the power of attorney exceeds their authority, which would invalidate their change in beneficiary designation.

Contest the Beneficiary Change Before It’s Too Late

If you’re going to contest a change in beneficiary designation or the creation of a new joint account, then you need to consider the timing. While there is the normal statute of limitations to file for Circuit Court relief, a would-be beneficiary could have access to the account as soon as they acquire the death certificate. Then, nothing would prevent them from spending the account’s money.

If you wait too long to file an action in the Circuit Court, then you could face this situation: you win the case, only to see that the money has already been spent. Then you have to engage in collection efforts against the wrongdoer.

The better course would be to immediately file suit to put the wrongdoer on notice. It would also make sense to ask for “injunctive relief” to freeze the account. However, this often requires immediate action after the decedent passes.

Lawyers Help to Contest a Will and Beneficiary Change

Challenging a beneficiary change or a change of an account to joint ownership status can be a complex area of the law. These challenges should only be considered by experts in this area of law. It is important to know what to expect.

For some families, it is unclear in the beginning if they have a rock-solid case, but they have strong suspicions that wrongdoing occurred. In those cases, it is not unusual to engage in litigation to obtain the needed bank account information (i.e. signature pages) and medical records in order to formulate an opinion after this information is obtained.

Often, it is only through litigation that you will be able to access the information that is critical to winning your case. It is not uncommon to see beneficiary designations changed once a decedent was in a weakened condition. Let us fight with you to correct this wrongdoing.

Photocopy of Last Will and Testament

Last Will and Testament

What happens if I can’t find my dad’s original last will and testament?  Can I use a photocopy of his last will and testament?

There are problems in using a copy of a last will and testament.  Prior to about ten years ago, the answer was you could not submit a photocopy of one’s last will and testament.  But, tht changed in 2009.   Maryland Code Ann. Est. & Trust Sec. 5-802 allows one to submit a photocopy of the decedent’s last will and testament under certain circumstances.

What are the circumstances to submit a photocopy of the last will and testament?

The decedent heirs and legatees must provide their written consent that they accept the photocopy to be admitted to probate in lieu of the original.  It is important to note that “heirs” and “legatees” may be different people.  Heirs are individuals that would inherit if there was no last will and testament.  Legatees, on the other hand, are those individuals that are specifically named as beneficiaries in the last will and testament.

Here is an example of the problem in getting all to consent

Assume that dad’s original last will and testament could not be found.  In the photocopy of this last will and testament, he leaves everything to his two daughters who care for him in the last five years of his life.  His son, however, was left out of the last will and testament.  In this example, assuming mom has passed, the two daughters and son are the intestate “heirs” while the two daughters are the named beneficaireis – i.e. legatees. If the two daughters want to submit the photocopy of the last will and testament, they will need to obtain the signature of their brother.  But, of course in this example, thier brother may not want to sign the consent because if he does, he inherits nothing in the new last will and testamant.

 

Maryland Probate: You Can Do Post-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.

Another Win! – Will Contest

We had another will contest win.  Our client was gracious enough to send us a card expressing her thanks.  This is what she had to say:

“Thank all of you for the way you handled our case.  You guys are wonderful.  Along with being very professional, you showed us such compassion.  You guys went over and beyond to make sure the wrong to us was made right.  We cannot thank you enough.  We will highly recommend you.  Thank God for all of you.  Sincerely, B.J.

P.S.  Wow!!! What a check (smile).”