In answering this question, I have relied on expert assistance from Henry Clarke, an estate planning lawyer in Gaithersburg. If you need legal help with wills, estate planning or estate administration, you cannot do any better than Henry. He is a great lawyer and an even better person.
What Does Intestate Mean?
Leave it to lawyers and the law to never use a simple word or phrase when we can use a more complicated or obscure one.
Take the word intestate, for example. It means “without a will.”
So, if you die without a will, you die intestate in the eyes of the law, and the implications of your intestacy can be far-reaching.
Most importantly, dying intestate results in your estate being distributed through the laws of intestate succession – a technical way of saying that the legal system decides how your estate is distributed.
Essentially, your state writes a sort of virtual will, made up of your state’s default clauses, whether you would have wanted those clauses or not.
Let’s get specific . . .
What Are The Maryland Rules Of Intestate Succession?
If you die without a will in Maryland, these are some of the possible actions that may be taken on your behalf because of the “virtual will” I just talked about:
- 1. The Probate Judge may appoint anyone he or she chooses to administer all property in your estate and distribute it under the “virtual will” created by the law of Maryland.
2. All of your assets are converted to cash, without regard to the financial wisdom of doing so. All of your debts are paid, including taxes, probate fees, administrative fees and attorney’s fees (some of which could have been avoided by a well-prepared estate plan).
3. A “spousal share” and one-half of your separately-owned property is paid to your spouse.
4. The balance of your estate is paid to your children in equal shares, in cash. If any child is a minor, the judge appoints someone to act as guardian until the child becomes an adult. At age 18, the child’s share is transferred to the new adult, regardless of their financial or emotional maturity.
5. If any of your children does not survive you, that child’s share is paid to his or her children — your grandchildren — in equal shares. If any grandchild is a minor, the judge appoints someone to act as guardian until they become 18.
6. If your spouse does not survive you, your spouse’s share is paid to your children or grandchildren as described in the preceding paragraphs.
7. If none of your children survives you, your spouse receives all of your estate unless your parents are alive. If they are, after your spouse receives a “spousal share,” your spouse receives one-half of your estate and your parents receive one-half of your estate, divided equally between them.
8. If your spouse, children and grandchildren predecease you, or if you have no children, your estate goes to your parents, brothers and sisters. If any of your brothers and sisters predecease you, their heirs – your nieces and nephews — will receive the share of their parent.
9. If you are not survived by a spouse, children, parent, brothers, sisters, nephews or nieces, the Probate Court finds your closest blood relatives and divides your estate among them and their heirs.
10. If the Court cannot find any blood relatives, then your property is given to the State of Maryland.
Whew! (And don’t laugh if you live outside Maryland. Your state has rules of intestate succession which are probably as convoluted as Maryland’s.)
What Does This All Mean?
I don’t have to tell you how to avoid all this confusion and complication . . . but I “will.”
Do your survivors a favor. Be sure to at least have a will which disposes of your property and names a trusted person to oversee the administration process.
Better yet, consult with an expert in wills and estate planning, such as Henry Clarke, to learn what other actions you should take and what other documents make sense for you — such as Health Care Directives and Financial Powers of Attorney.
**These questions and answers are designed to provide helpful information that can be read quickly. They are neither a full explanation of the subject nor legal advice. To learn more, and to receive legal advice on which you can rely, contact me or another lawyer.