Last Will and Testament
The cornerstone of your estate plan
Maryland Wills & Estate Lawyer for Last Wills and Testaments
The cornerstone of any estate plan is a last will and testament. Your last will and testament tells your family and the Maryland Register of Wills how to divide your assets when you die. But your Maryland Estate Planning Attorney uses your last will and testament to do many things unrelated to your property. For instance, that document may contain information about who should take care of your children.
If you do not have a last will and testament, Maryland’s intestate laws determine how to divide your assets. Even scarier, the court will decide who will take care of your children without your input. Often, those intestate rules and court decisions would not be as you intended or ever wanted.
Maryland estate planning lawyers at Rogyom Law can guide you as you decide how you would like your assets to be distributed. They can assist you with those many decisions that can benefit your family and loved ones for generations to come. We can help you create a custom-tailored last will and testament that gives your family much-needed certainty when they would normally have turned to you for guidance.
An attorney specializing in estate planning will help you with:
Deciding the best structure for your last will and testament and estate plan
Determining whether you should include one or more trusts for your family
Planning for family members with special needs
Property distributing your business interests in an LLC or corporation
Changing the deed for real property or accounting for rental properties in your estate
Assisting with naming your personal representative, trustees, guardians, and others
Creating plans to minimize taxes, legal fees, and other expenses
Making sure your last will and testament is valid and legal
A good Maryland estate planning attorney will also be able to spot hidden complex issues that need to be addressed or create planning opportunities. We will then proactively correct those problems and save you from legal issues, business problems, or higher taxes.
Who Should Make a Last Will and Testament?
The most obvious reason for creating a last will and testament is to name who will receive your property after you die. That is just the beginning of what a last will and testament can do. Unfortunately, some wait until they’re older before creating a will.
While you may have more assets and feel it is more necessary later in life, there are many reasons to have a last will and testament when you are younger.
You are married and want your estate to belong only to your spouse
You have minor children
You have children or grandchildren with special needs
You would like your children to receive distributions over time
You own a business
Your estate needs to be planned to avoid family issues
You have specific requests for your burial or cremation
You do not want certain people to inherit your estate
You are married and want your estate to go to your spouse
Maryland intestate laws provide that if you are married, the only way your spouse will inherit your total estate would be if you have no living parents, siblings, or children. In all other cases, your spouse only receives a portion of your estate. This is not what most intend and most assume their spouse will receive everything.
You have minor children who need guardians
If you have minor children, then you want to ensure a person you trust will be your children’s guardian. You will also want the child’s share of the estate to be held in trust, rather than distributed without restriction to the child.
You have a child or grandchild with special needs
You would want to put any assets intended for that person into a trust that will not affect their federal benefits.
You own a business
If your business is to survive, you will want to be sure you pass the business to a family member who wants to continue the business. If complications exist to passing the business, we need to put together a succession plan. We need to protect its value and to benefit your family from its sale or transfer.
Your estate may cause family disputes
There can be disputes regarding how to divide your property, but there can also be conflicts over who is to be the personal representative, Maryland’s name for the executor. You can appoint your personal representative through your last will and testament and prevent those disputes.
You have concerns about taxes
Besides income and estate taxes, you may plan to avoid Maryland inheritance taxes. If we cannot avoid taxes, then you will want provisions in the last will and testament to ensure they fairly divide taxes between those who receive probate and non-probate assets.
You have specific requests for burial or cremation
You can choose whether you are buried or cremated, but you can give specific instructions. So, you can also fulfill your dream of having your ashes spread in Ocean City at sunset with doves released and your favorite Jimmy Buffett song playing in the background.
You have people you really want to make sure don’t inherit
If there is someone you really don’t want to inherit your estate, you can specifically exclude them in your last will and testament. This is a concern if Maryland’s intestate laws would, for instance, allow your parent that abandoned you to share your estate with your spouse. Note: I will refer you to another lawyer if you want to disinherit a child without a darn good reason. You hating their mom is not a good reason.
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An Overview of Creating a Will
Your creating a last will and testament should be less complicated if you work with an experienced Maryland last will and testament attorney.
Get a Plan
When planning your last will and testament, you will want to have an idea of a few things:
Who you want to inherit your property
Who you want to take care of your minor children
Who you want to be your estate’s personal representative
Who you want to handle other roles, such as trustee for any trusts you form
You do not need to have each of these things completely decided upon prior to contacting a good Maryland estate attorney. An experienced estate planning lawyer will guide you in making informed decisions and sorting through your choices.
Many times, clients come in with the exact plan they want, but they leave having made different choices once they have learned about the law, the responsibilities of the various roles, or learned of alternatives to meet their true goals. So, don’t overthink it. Starting the process to get your last will and testament is your most important decision.
Drafting the last will and testament
Once we have worked together to get the plan for your estate completed, we will then draft your last will and testament. We will also begin drafting other estate planning documents you will need. You will also likely create a financial power of attorney, medical power of attorney, and living will. There may also be trusts outside of the testamentary trusts created in your last will and testament, and sometimes the estate plan will include the re-titling of various assets.
Signing your estate planning documents
While this sounds like a simple matter, properly signing the documents with witnesses and a notary is one of the most common reasons last wills and testaments and other estate planning documents become unenforceable. Your Maryland trusts and estates attorney will make sure to properly execute all documents.
Making Changes to a Last Will and Testament
If you created your last will and testament in Maryland, you may change your existing documents. Many have multiple last wills and testaments throughout their life. Like many others, you may choose to replace or update your existing last will and testament at pivotal points in your life, for instance:
When you are first married
When you have children
When your children become older
When you approach retirement or your wealth changes
You may choose to update your last will and testament for many reasons, including:
To change your beneficiaries
To make bequests of specific assets
To change the share of assets of a beneficiary
To change your personal representatives, trustees, or other roles
To account for changes in health or wealth
To change trusts included in your last will and testament
Your ability to change your last will and testament easily is usually a good thing. But our longer lifespans can cause some to be concerned they or their spouse may fall victim to a family member or caregiver who can use undue influence against you later in life.
If this is a concern, there are alternative planning tools available to your Maryland estate attorney. These tools may make changing your estate plan more difficult or prevent a change altogether without consent.
Types of Bequests in a Maryland Last Will and Testament
Clients often believe a last will and testament will need to address each asset of your estate. Maybe it’s because movies always show the family listening to a lawyer at the “reading of the will” say how one kid gets the motorcycles, another gets the stamp collection, and so on. Truth is, it’s rare for someone to mention any specific assets. Here’s how it really works.
Some clients will choose to leave a particular keepsake or asset to their kids. So, you may mention that your Towson University ring and home in Monkton will belong to Karen, and your hunting land outside Smithsburg will be given to Joe.
Upon your passing, those assets will be given to those people. But if you sold your hunting land in Washington County and bought new land in Carroll County, then that specific bequest will fail unless you update your last will and testament to switch the locations.
Most clients rely significantly or completely upon residuary bequests when dividing their estate in their last will and testament.
When dividing the assets of your estate, those to whom you provide specific bequests will first be allocated those assets. After distributing that asset, whatever is left is called the residuary estate. The residual beneficiaries then receive their distributions of the residuary estate based on the percentage you allocate to them in the last will and testament.
Dividing Individual Assets
The personal representative may either sell the remaining assets and distribute the proceeds or distribute the assets to the residuary beneficiaries. In any case, the personal representative will allocate the value to the beneficiaries based on the percentage you provided in the last will and testament.
So, even if you do not use a specific bequest to make sure Joe gets the hunting land, the personal representative may decide that the asset should belong to Joe, not Karen.
Given the likelihood you may need to update your last will and testament often if relying upon specific bequests, it is no surprise that most prefer to just allocate each family member a percentage and let the personal representative decide the proper distribution.
We can make each of the above types of bequests conditional. We would consider those to be contingent bequests. A common contingent bequest would be any statement such as, “if my son fails to survive me, then my grandson shall receive X.”
On the other hand, you can make more custom-tailored contingencies such as, “if my son enters the military, then he shall receive my condo in Timonium, Maryland.”
Testamentary Trust Bequests
You can include a Maryland testamentary trust within the last will and testament so you can hold assets you bequest in that trust for later distribution. You may choose to do this for many reasons your Maryland estate attorney may suggest.
You may do this for tax purposes, protecting the recipient from receiving it all at one time, or to benefit multiple generations. Last wills and testaments commonly include one or more testamentary trusts.
Choosing the Right Estate Planning Tools
Your Maryland estate lawyer would be the most qualified person to decide whether your estate planning should be based upon a last will and testament or a living trust. Each has its own positive points and negative points as well.
When should you use a last will and testament?
Assets transferred using a last will and testament will need to go through probate. Probate is the legal process in Maryland for managing the estates of the deceased. Each Maryland county has a Register of Wills that receives the filings to open estates and oversees dividing the estate’s property.
In general, a last will and testament is the better choice for most young people. It is also the better choice for someone that would not want to pay the expenses of transferring the title of their assets to a living trust. Likewise, for someone that will likely sell and buy properties often in the future.
The last will and testament can include a testamentary trust for your spouse and children, without some burdens of a living trust.
There are also the personal burdens of having to make sure you continuously title assets to the living trust. If that is not done, those assets will end up being considered probate assets.
If you have very few assets that would need to pass through probate, then a last will and testament may be a better choice.
Further, if you are not concerned if your estate and last will and testament become public records, then you would not need the privacy provided by using a living trust.
When should you use a Maryland living trust?
A Maryland living trust, also referred to as a Maryland revocable living trust, is a very different document from a last will and testament. The one thing they have in common is that both provide a plan to distribute your assets following your death. Assets titled in the living trust’s name do not need to pass through the probate process.
A Maryland estate attorney will generally consider the following factors to decide whether you should use a living trust.
- If you have a blended family and wish to have your spouse have access to your assets following your death but want the certainty that the remaining assets will go to your children, then your estate attorney may suggest using a living trust.
- If your assets are stable, not likely to be sold and replaced between now and your death, then your estate attorney may lean more toward a living trust.
- If you are of a more advanced age or believe you are in your later years, then your estate attorney may lean more toward a living trust.
- If you are concerned about your assets or other private matters becoming public knowledge, then your estate attorney would suggest using a living trust.
- If you are willing to spend more to have a living trust drafted and assets retitled to the name of the trust to later avoid the higher costs of probating your assets, then a living trust may be your better option.
- If you are concerned you or your spouse could later come under the influence of a family member or caregiver who will suggest or force you to change your estate plan, then your estate lawyer could suggest using a living trust. The unscrupulous individual will later find out your living trust owns your assets, regardless of what the last will and testament they forced you to sign states.
Note: We regularly turn away business from individuals who request a last will and testament for an elderly family member who suddenly want to give everything to them and disinherit their kids. While we do our part, this does not prevent them from downloading a Maryland last will and testament form online to do their harm.
Weighing the positives and negatives
After reviewing the above factors, you may be convinced you absolutely must have a living trust or a last will and testament. But your estate attorney should have the experience and knowledge to look at your situation and inform you of the type of plan you really need. The above factors are, of course, not exhaustive, and your estate attorney should be able to explain the reasoning behind their suggestion.
Frequently Asked Questions Clients Ask Maryland Estate Lawyers
How long does a last will and testament last?
A Last Will and Testament never expires due to age. The person must take some actions to either cancel the document or replace it with a new Last Will and Testament. The testator must cancel the Last Will and Testament by some action intended to destroy or other overt act to cancel the document. If they create a new Last Will and Testament, the Maryland estate planning attorney will include a phrase such as “any prior Last Will and Testament is hereby revoked” in the replacement document.
What is a Last Will and Testament?
A Last Will and Testament is a legal document containing instructions about what happens after you die. This document is most commonly used to provide for how to divide your property upon your death. But it can address a number of other issues as well, such as your burial requests and the naming your personal representative (your executor) and the guardian of your children.
How to find a Last Will and Testament?
If a person’s Last Will and Testament is missing, then there are usually a few common places to look for the document. If you know they used an attorney to create the estate planning documents, that attorney will usually have kept at least a copy and maybe the original of the documents.
If you do not know the particular attorney, you should any attorney friends of the deceased to see if they assisted or referred them to an attorney. The person’s accountant or financial advisor may know either the location or the attorney who prepared the Last Will and Testament. You may also want to request an attorney to send out an inquiry to the legal community to see if anyone helped prepare the document.
If they likely prepared the documents or cannot locate the attorney, then you will need to comb through the places they usually kept important documents. People may sometimes store documents in safety deposit boxes, but expect some issues with the bank when you try to access it. Though not common, the deceased may have filed the Maryland county’s register of wills and contacting them is worth a call.
Are Last Will and Testament public record?
Once the Last Will and Testament is filed with the Register of Wills to open the estate, in Maryland the document will be public record and accessible by anyone online. If the decedent chose to file the Last Will and Testament with the Register of Wills prior to their death for safekeeping, the document does not become public record until the family opens the estate after death. For this reason, many people choose to use Maryland living trusts to keep their private business from becoming public.
How do I write a Last Will and Testament?
The Last Will and Testament must comply with all requirements of the Maryland Code, Estates and Trusts, Title 4, Subtitle 1. The person must be 18 and competent. It must be in writing, and signed by the person in the physical presence of two witnesses who must attest to and sign the Last Will and Testament as well.
Drafting your own Last Will and Testament can lead to many problems, even when using a purchased or free form or template online. While some people get away with it, they may skip addressing many important things an attorney would never have missed. Even worse, the Last Will and Testament could be valid but causes so much confusion it ends up in litigation and creates huge attorney bills for your family.
Lawyers that do wills near me in Maryland often get calls from families confused on what to do with a Last Will and Testament that improperly prepared and executed or that can’t even find the Last Will and Testament of a family member. These families would not have these problems if they had used a lawyer with experience in drafting wills since it would almost certainly have been valid and since the lawyer usually keeps a copy of the Last Will and Testament.
Words From Clients
Jeff was a great attorney to work with on the sale of our business. When problems popped up for the buyer to close, his manner kept everyone calm, both us and the buyer, and he came up with great solutions. Jeff's experience definitely shows, and we'll be happy to work with him again. - Elizabeth B.
Our CPA recommended Jeff to help us with our estate planning and transferring our business to our kids. Jeff was a friendly guy and understood the business and personal issues we were concerned about with giving the business to our kids. He came up with a great plan that reduced the taxes and made sure the business would stay open after we retired. We think our estate plan we made with Jeff will really help our family after we're gone. We are happy our CPA recommended him and with the work Jeff did for us. - Tom D.