Many wonder what happens if you die without a Will. Each state, including Maryland, has its own laws that determine what happens to the person’s estate. The differences between each state’s laws do cause confusion, and your assumptions about Maryland’s laws may be incorrect and can cause incredibly negative problems.

When someone dies without a Will, the rules governing the estate are called “intestate laws”. When intestate laws apply, the deceased person may be referred to as having “died intestate” and having left an “intestate estate”. Essentially, your state’s intestate laws serve as your Will if your family cannot provide an actual Will. Maryland’s intestate laws are often not what most people expect.

Intestate laws substitute themselves for the missing Will and distribute the property as the state believes a person would have wanted. Most of these laws were written a century ago (back when a bride’s dowry and family farm may have been your family’s largest assets) and often do not reflect the intentions of modern families. Further, intestate laws distribute your assets solely based upon your family relationships and do not consider your actual feelings about relatives. In other words, the court will give your assets to your brother who refuses to speak to you, rather than your cousin who was the best man at your wedding.

Most mistakenly assume that if you die without a Will your spouse automatically receives your estate. While this may be true in some states, this is not necessarily what happens in Maryland. In Maryland, if you pass away with a spouse and minor children, then your spouse is only entitled to half of your estate. If you pass away with a spouse and adult children, then your spouse is only entitled to half of your estate and an extra $15,000. In either situation, the remaining portion of the estate is considered immediately owned by your children. If you pass away with no children but with living parents, then your spouse again only receives half your estate and $15,000 and your parents receive the remainder. You may or may not have even spoken to the parents in decades, but they suddenly may be entitled to a portion of your estate. Thus, if you die in Maryland without a Will and leave either a living parent or child, then your spouse will not be entitled to your entire estate.

Adding insult to injury, your spouse, as guardian of your minor child, may be able to access the child’s share for the child’s benefit, but your spouse may be required to post a bond and regularly report to a court regarding how and why she spent “the child’s” money. Once the child turns eighteen, your spouse will have absolutely no control as to how the child spends his new wealth.

If your spouse survives you, then your spouse will likely continue to be allowed to care for your children. But, without a Will, you cannot designate who becomes guardian if your spouse later dies or dies simultaneously with you. Without a designated guardian, any person who chooses to petition the court could be appointed as your child’s guardian and, in addition, can control your child’s inherited property until the child reaches adulthood. For single parents, your guardianship designation would assist your family in court if your child’s previously absent parent emerges to battle your family for custody and/or control of the child’s inheritance.

Without a Will naming a personal representative, the court will appoint a personal representative (typically the fastest person to the courthouse), and the personal representative will have complete access to the assets of your estate. While laws prohibit a personal representative from using your assets for their own benefit, it does happen, and the money may be impossible to recover if mismanaged or spent. And, even if the court wisely chooses the personal representative, the court may require the personal representative to purchase a bond, which you can waive through a Will. A bond’s cost can be expensive and may even exceed an attorney’s price for preparing a Will.

Estate planning can allow you to protect your family’s money: from creditors, from their future spouses, from death taxes, and even from themselves. For instance, if a child has spending issues or a drug habit, but you still want to provide them with an inheritance, then a Will with a testamentary trust can be used to put restrictions on their access to the money. Or, if your child has creditor issues, then a trust can be used to restrict distribution of assets to the child until those creditor issues are resolved or file for bankruptcy.

Few would even consider not having a Will once they know the consequences. No matter whether you are rich or poor, young or old, a parent or not, there will be benefits to having a Will.

Despite there being many do-it-yourself programs and forms, I would urge you to use an attorney in drafting your Will. On occasion, someone has brought a relative’s self-prepared Will to our office, and we have had to inform them that the Will was either worthless or created a huge and costly problem. A poorly drafted Will may very well be worse than having no Will at all.  Of course, the deceased never knows if their DIY estate planning worked as intended, and it is too late to correct the problems.

For additional information about what happens when someone dies without a Will in Maryland or to obtain an estate plan, please contact Jeff Rogyom at (410) 929-4578.  Please review the Disclaimer page regarding use of this website and its information.