Losing a loved one is never easy. What happens next after a loved one passes? What do you do with the will? What happens if you can only find a photocopy? Then what? What happens if you do not know what is in the estate? Then what? What happens if you have been appointed as the personal representative in the will? What duties do you have and what liability is there for acting as personal representative?
What are the “costs” associated with probate? What do I do with all this “stuff?” What costs can be claimed against the estate and which costs cannot? There are many nuances associated with probate law. Let a probate attorney help you streamline this process so that the probate can be as smooth as possible.
Uncontested Probate
In most cases, the probate process is uncontested. But, for many people, even the uncontested probate can be a daunting process. What forms do I need to complete? How do I obtain a probate bond? How do I determine the assets of my loved one? Where do I start?
Our firm has been focusing in elder law, including probate, since 2002. We can assist you and your family through the probate process. We will prepare all of the necessary documents for probate including the related items. We will either assist you or determine on our own the assets at issue. We will also deal with the creditors so that you do not need to take their harassing calls and letters. We become the focus for the creditors. If there is a beneficiary that has questions, we become the focus of the probate estate and not you. It is in this way that our firm does the heavy lifting in the probate process so the family can go through the normal grieving process while also not getting caught up in the probate quagmire.
Adam J. Roa, Esq. as Personal Representative
In many instances, our firm, in particular, Adam J. Roa, Esq., has been asked by clients or relatives to serve as personal representative himself. This can be for a variety of reasons ranging from having a neutral third party serve as administrator for families that have strong willed personalities or for families where there is a strong need to have someone in control of this process that can manage the estate in a fair and efficient manner. It is not an uncommon issue that clients themselves appoint Adam J. Roa, Esq. either as the primary personal representative or the backup personal representative. They key for most clients is that the probate process is efficient and transparent to the beneficiaries as much as possible.
Contested Probate
- In many cases, there will be disagreement as to the terms of the will or disagreement as to who gets what. If two siblings want mom’s civil war china, who gets it? What if it is not in the last will and testament? What if there is no last will and testament. Let our office help.
- What happens if the last will and testament is defective in that there is a fraudulent signature, or someone influenced the decedent to sign, or the decedent was not competent when she signed the will? Our office can help.
- What if there is an illegitimate child making a claim against the estate? Our office can help.
- What if the appointed personal representative has failed in his duty and needs to be removed? Our office can help.
It is absolutely critical that our office become involved as soon as possible. If you file your complaint against the will too late, you will be forever barred from making a claim.
Probate Attorney
As an elder law firm, we handle probate matters on a routine basis.
Having a probate attorney familiar with the nuances of the Maryland probate process will be your key to a smooth probate in an uncontested matter and the key to a successful outcome in a contested matter.
In an uncontested matter, it is key to have an experienced probate attorney guide the family through the expected nuances and issues that will normally arise in any probate process. Asset distribution, location of missing assets, creditor issues, burial issues, and personal property distribution issues are all normal issues that many probate estates will encounter.
In a contested matter, an experienced probate attorney will be key to asses the strengths and weaknesses of your will contest (whether there is a document execution issue, fraudulent signature, incompetency issue, or if there is an issue of undue influence).
What happens if there was a mistake in the decedent’s last will and testament? Let an experienced probate attorney work through the post death decision making process to help correct mistakes. If the beneficiaries are not cooperating in this process, let an experienced probate attorney take the lead to obtain court authorization or fight to obtain a court determination to get the results you want.
Probate Law
The probate process is a process by which the Maryland Orphans court oversees and protects an estate, determines the validity of the last will and testament (if any), insures creditors are properly paid, and insures the beneficiaries receive what is entitled to them via the last will and testament or Maryland intestacy provisions.
What happens if you die without a last will and testament? If you die without a last will and testament, the State of Maryland has a last will and testament for you. Probate law generally follows the pattern below:
If the deceased is survived by:
- Spouse and minor children of the decedent- spouse receives one-half, children share remaining one-half
- Spouse and children (all adult) of the decedent-spouse receives $15,000 plus one-half of remaining estate-children divide balance (the interest of a predeceased child passes to issue of that child)
- Children only of the decedent-children (does not include step-children) divide entire estate (the interest of a predeceased child passes to issue of that child)
- Spouse and parents of the decedent- spouse receives $15,000 plus one-half of remaining estate-both parents divide balance or surviving parent takes balance
- Spouse of the decedent without other heirs listed above-spouse receives entire estate
- Parents of the decedent without other heirs listed above-both parents divide entire estate or surviving parent takes all
- Brothers/sisters of the decedent without heirs listed above-brothers and sisters divide estate equally (share of deceased sibling goes to their issue-nieces and nephews of the decedent)
- Grandparents without other heirs listed above-grandparents divide entire estate or, if deceased, to their issue (see applicable law for details)
- Great-grandparent without other heirs listed above-great-grandparents divide entire estate or, if deceased, to their issue (see applicable law for details)
- Step-children-if there are no heirs listed above
- No living heirs or step-children-If decedent was a recipient of long-term care benefits under the Maryland Medical Assistance Program at time of death, net estate is paid to Department of Health and Mental Hygiene. Otherwise, the net estate is paid to the Board of Education.
Key Terms in the Maryland Estate Process:
- Small Estate: Assets subject to administration valued at $50,000 or less ($100,000 if the spouse is the sole legatee or heir)
- Regular Estate: Assets subject to administration in excess of $50,000 ($100,000 if the spouse is the sole legatee or heir)
- Judicial probate: a probate proceeding conducted by the Orphans’ Court when the situation prohibits administrative probate. This usually arises when there is an issue as to the validity of the will, will is damaged, there is more than one person applying for personal representative, or a request has been made to remove a personal representative.
- Administrative Probate: a proceeding that is initiated by an interested person with the Register of Wills for the appointment of a personal representative and for the probate of a will or the determination of intestacy of the decedent.
- Information Report: the document that reports all non-probate property Non-probate property includes jointly held assets, life estate or remainder interests in a trust or deed, trusts in which the decedent had an interest, payable on death assets, and pension and benefit plans including IRAs with named beneficiaries.
- Interested person: the person(s) named as personal representative(s) in a will, the person(s) serving as personal representative(s), legatees, heirs (even if the decedent died intestate), trustee(s) of a testamentary trust, and court appointed guardian(s) for minors and disabled adults who are interested persons.
- Special Administrator: an administrator of an estate appointed by the court when it is necessary to protect and manage property prior to the appointment of a personal representative.
Probate Pitfalls
1. I can handle the probate process on my own.
For very small simple estate, this firm will be the first to tell you that you should handle it on your own. We would be more than happy to point you in the right direction. But, for everyone else there are untold nuances to the probate process such as creditor issues (who should I pay first, when should I pay the creditors, do I have to pay the creditors), to probate expense issues (is this an allowable probate expense, can I reimburse myself for my out-of-pocket expenses, what happens if I reimburse myself for expenses that were not allowable), and countless others.
2. Thinking there is no way to change an innocent mistake in a Last Will and Testament.
Sometimes an improperly worded Last Will and Testament may result in unintended consequences. A deceased son’s children may have been inadvertently left out of the Will. Some mistakes can be addressed after someone has passed. There are a host of nuances with this process. If this is an issue, contact our office immediately as there are very time sensitive criteria at issue.
3. My parents held everything jointly.
You should always consult an attorney regarding probate implications for the first spouse to pass. The attorney should review the status of all assets to determine the probate exposure. It is very common to have hidden assets or even a house that is either held solely by the first to pass or as a tenants in common interest.
4. My father left everything to his new girlfriend six months before he passed. There is nothing that I can do.
There are a host of areas where one may challenge the submission of the Will at issue for probate. However, the single biggest obstacle is timing. A claim to challenge the submission of a defective or otherwise challengeable Will must be made within a certain time frame or a claimant will be barred from making any challenge. If you are considering challenging the submission of a Will, contact this firm immediately to ascertain whether or not you have a challengeable matter.
5. The Personal Representative of the Estate is not a responsible person, but there is nothing I can do.
Wrong. There are a host of options available that are available. Whether the route for removing the personal representative is straightforward or complex rests on the outstanding issues present in the case.