Having a Last Will and Testament Avoids Probate
This is not correct. The Last Will and Testament (“Will”) is the document that informs the court how you want a property that is titled in your name to be distributed at your death. The Will controls the disposition of the property. The person who is designated as the Personal Representative of your estate in the Will is responsible for processing your Will, collecting and appraising your assets, ensuring any debts and taxes are paid, and that your property is distributed according to your wishes. The Will is also the document where you will appoint a guardian for your minor children, in the event of your death, which must also be processed through probate court. Upon the death of the decedent, the original Will must be filed with the Register of Wills office in the county in Maryland where the decedent passed away.
Beneficiaries to the Will Cannot also be Personal Representative
Not true. In fact, quite often those named as personal representatives (also known as executors) are family members who also inherit under the Will. For example, if your spouse or adult child is named as the personal representative. Maryland code defines the personal representative as “an executor, administrator, successor personal representative, or special administrator of a decedent’s estate or a person legally authorized to perform substantially the same functions.” If the decedent passes away without a designated personal representative, then the Personal Representative is determined based on Maryland law. Typically, the surviving spouse or surviving children step in to take this responsibility. If there is no surviving spouse or children, then it would go to the decedent’s parents. If there is no surviving spouse, children, or parents, then the task goes to the decedent’s surviving sibling. Once the personal representative is appointed, in either case, then that person must take the remaining steps to manage, settle, and close out the estate.
Your Debts go Away When You Die
Sorry – your debts do not disappear when you pass away. Your debts that exist at the time of your death must be paid off using assets in the probate estate. There are two types of estates when it comes to debt payment – that is a solvent estate or an insolvent estate. A solvent estate has sufficient assets to pay of all of the debts and there remain assets left over after payment of debts. The remaining assets will be distributed according to the terms of the Will. An insolvent estate does not have sufficient assets to pay off all of the debts. Where an estate is insolvent, there are creditors who do not end up getting paid back; and heirs who will not inherit because there are no assets to pass on. To help ensure you are not in the position of having an insolvent estate, it is important to take steps during your life to make sure debts are paid off or are otherwise manageable.
Your Will Must Notarized and Filed Before You Die for it to be Valid
False. In Maryland, a Will does not need to be notarized in order to be a valid, legal document. In Maryland, a Will is valid if signed in front of at least two (2) to three (3) disinterested witnesses. However, in order to speed up the probate process if there is any question raised as to the decedent’s signature, having a self-proving Will is beneficial. A self-proving Will is one that you and your witnesses sign in front of a notary. Further, a Will does not need to be filed with the Register of Wills during the decedent’s lifetime. However, upon the death of the decedent, the original Will must be filed with the Register of Wills office in the county in Maryland where the decedent passed away. During your lifetime it is best to store the Will in a safe place, such as a safe deposit box, file cabinet, or home safe.
Wills and Living Wills are Interchangeable
Not true. A Will and a Living Will are two distinct documents with different purposes. A Will takes effect at the time of your death and the purpose of the Will is to inform the court who you want to manage your estate, how your assets should be distributed, and who should be the guardian of any minor children.
A Living Will takes effect while you are still alive, but you may not otherwise be able to speak or advocate for yourself as to end-of-life medical decisions. The Living Will dictates the medical directives that you want to be considered. For instance, medical measures that should or should not be taken, medications that should or should not be provided, feeding tube wishes, and end-of-life decisions (e.g. do you want to be resuscitated, and types of medical interventions that you want).
If you need any assistance with estate planning, including drafting of a Last Will and Testament, Living Will, or other estate needs, do not hesitate to contact the experienced Trusts & Estates attorneys at Krum, Gergely, and Oates, LLC.