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Probate FAQ’s

Answered by Our Maryland Estate Planning Attorney Our Maryland estate planning attorney
estate-planning-1 compiled these frequently asked questions about estate planning and probate. If you would like to set up a free consultation with our Maryland estate planning lawyer, please call us now.

  • What is probate and should it be avoided?

Probate is the process by which a court supervises the distribution of probate property according to a verified will or the laws of intestate succession to those who will inherit a deceased person’s property. Probate property generally includes assets owned individually. The primary reasons for avoiding probate involve the costs and time associated with the process. However, in Maryland , the actual court costs and probate fees involved in most estates are nominal and the probate process is more streamlined than in the past. For many estates, a valid will and individualized planning can minimize the impact of the probate process. However, estate plans effectively utilizing a trust can avoid probate and allow for distribution of assets without court involvement or delay, without disclosure of private financial information,can minimize and/or delay estate taxes for estates with assets (including life insurance) over the estate tax exemption, can provide for assets to be held in trust and distributed over a period of time, and can allow for the management of assets if necessary due to incapacity.

  • What happens if someone dies without a will?

Without a will, state laws of “intestate succession” kick in.

In MD, the following distributions would apply if you died without a will*:

      • If survived by spouse and parents:
        • ½ of estate, plus $15,000 to spouse, balance to parents
      • If survived by spouse and children:
        • ½ of estate to spouse; ½ to children
      • If survived by spouse and adult children:
        • ½ of estate, plus $15,000 to spouse
        • ½ of estate to children (not including step- children)
      • If no living heirs or step-children Estate goes to the Board of Education

See MD Code Ann., Estates and Trusts §§ 3 -101 et seq. (2003) for a complete description of intestate distributions.

In DC, the following distributions would apply if you died without a will:

  • If survived by spouse, but no living children or parents:
    • 100% of estate
  • If survived by spouse and children (and children are children of surviving spouse):
    • 2/3 of estate to spouse
    • 1/3 to children of deceased
  • If survived by spouse and children (and one or more of the children are not children of decedent or if one or more of the children are not children of the surviving spouse):
    • ½ to spouse
    • ½ to children of deceased
  • If survived by spouse and parents, but no living children:
    • ¾ of estate to spouse
    • ¼ to parents of deceased
  • If survived by children, but no spouse or parents:
    • Estate is equally divided among children
  • If survived by parents, but no spouse or children:
    • Estate is divided equally between father and mother of deceased
  • If survived by brother, sister, neice, or nephew, but no child, spouse, or parent:
    • Estate is divided equally among brother, sister, neice, or nephew
  • If no living spouse, children, parents, brothers, sisters, or descendants of these relations survive, then collateral relations divide the estate equally
  • If no living spouse, children, parents, brothers, sisters, descedants of those relations, or collaterals, then grandparents divide the estate equally
  • If no living spouse, children, or other heirs:
    • Estate goes to DC to be used by the Mayor of the District of Columbia for the benefit of the poor

See DC Code Title 19, Chapter 3 for a complete description of intestate distributions.

If the intestate laws do not precisely reflect your wishes, a will and/or a revocable living trust is necessary.