WHAT HAPPENS IF I DIE WITHOUT A WILL?
It is very difficult, emotionally, to think about needing a will, because it makes us think about death. Many people occasionally think about this and plan to look into it but don't go any further. The reason why is obvious -- it's not a fun thought and easy to say "I'll get to this later, when I'm less busy." But for many, "later" never comes. The result can have far reaching negative consequences. So, while difficult, thinking about a will is very important and could be the best gift you leave to your heirs or descendants.
In order to understand this whole process, a little background information is helpful.
First, what is a "will?" A will is a written legal document directing a person's wishes regarding their property and other financial affairs, or nominating a guardian for minor children, after death. In order to make a valid will in Maryland, a person must be at least 18 years old and be competent. A will must be in writing and signed by two or more credible witnesses. A will can do many helpful things including:
1. Appointing a "Personal Representative," the person you select to administer the closing
of your estate, pay your bills, and carry out your wishes.
2. Appointing a "Guardian," who will have legal custody of your minor child or child
with a disability.
3. Dispose of your personal and real property as you direct.
4. Make charitable bequests.
5. Set up a trust or special needs trust (for persons with a disability).
5. Safeguard your finances through proper tax planning.
6. Avoid family disputes by clearly setting forth your intentions.
7. Explain, if you chose to, why you are doing certain things in your will.
In failing to make a will, you lose the opportunity to control all of the above important
matters after your death.
If you already have a will, but need to make a minor change, a change after a will is made to part of the will is called a "codicil" (like an amendment). A properly drawn codicil will keep a will intact with a change only to the part specified in the codicil. This enables a person to make a change without the time and expense of drawing up a whole new will. If you have major changes to an existing will, it is best to have an entirely new will prepared. Most wills should have a provision that any prior will is "revoked" by a more recent will.
If you do not have a will, or if no valid will can be located, each state, including Maryland, by statute, sets forth what happens if you die without a will. Thus, you are leaving important decisions up to the State, rather than taking control of your own affairs.
First, because an "estate" handled by someone, State law will determine who should serve as the Personal Representative of your estate. The Personal Representative is the person who must identify the decedent's assets and file required forms and tax returns, pay estate taxes and other expenses, pay bills and funeral expenses, and then distribute any remaining assets pursuant to Maryland law. State law cannot determine if a certain person is ready, willing or able to handle this work and the job may to to a person not suited to the task at hand.
Second, State law will direct how your assets are distributed under the rules of "intestate succession" (without a will). There are many possible scenarios. These include a decedent who:
1. is married or unmarried;
2. has surviving children or grandchildren;
3. has siblings or parents; and/or
4. has grandparents or more distant lineal relatives.
The rules of intestate succession set up a complicated division of assets based on the surviving family and relationship with the decedent. An overall scheme of this is set forth by the Office of the Register of Wills (http://registers.maryland.gov/main/publications/wills.html). An example of some or the rules of intestate succession are
- If a spouse and minor child/children survive, the spouse receives only one-half of the probate assets and the child/children receive the other one-half.
- If there are no surviving minor children but other surviving children or parents, the spouse receives the first $15,000.00 plus one-half of the balance of the estate; the remainder passes to the decedent's children, if any, otherwise to his or her parents.
- If a spouse but no children or parents survive, the spouse receives the entire probate estate.
- If children but no spouse survive, the children will receive everything.
- If no relatives (brothers, sisters, nieces, nephews, cousins, etc.) survive, the assets will be distributed to the Board of Education in the jurisdiction where the estate was administered.
The rules that apply to intestate succession are complicated and the above is a simplified
version. The actual statutes must be consulted in estate planning and checked regularly for any
changes or new requirements. This article does not attempt to cover every scenario or guarantee
what will happen if you die without a will. In addition to the Maryland Office of the Register of
Wills website, another helpful website for general information is Maryland Orphans Court,
Because there are complicated personal, financial and legal ramifications involved, it is
advisable to hire an attorney at the outset of estate planning and to review your will regularly for
legal sufficiency and changing needs and circumstances of your surviving loved ones.
Most people find that making a will and doing estate planning relieves a lot of underlying
stress and is something they wish they would have done sooner.