Probate
If you are here to learn about Maryland probate after the passing of a loved one, we first want to say that we are very sorry for your loss. We hope that the information you find on this page will simplify any legal and administrative headaches you might otherwise face during such a difficult time.
With that said, probate in Maryland may be a court-supervised procedure that helps to ensure the legal transfer of assets from the deceased to the rightful heirs or beneficiaries. Probate in Maryland is also necessary to:
- Prove the validity of the will
- Appoint someone to manage the estate (The “personal representative” whether there is a will or not)
- Inventory and appraise the estate property
- Pay any debts or taxes (including estate taxes)
- Distribute the property as directed by the will—or by the state law if there is no will
In Maryland, if an unmarried person has total net assets valued over $50,000, they will probably have to have their assets probated as a regular estate, under $50,000 it is probated as a small estate.
What's so bad about probate in Maryland. . .and what should I do next?
Many Maryland residents have heard that probate is bad news. It tends to be costly, it's time-consuming, and it's also a public process.
The easiest way to avoid the probate process is to plan; but if you are now in a situation where you must go through probate courts to finalize the estate of a loved one, the best thing you can do is get educated and get help to complete the process as quickly, and cost-effectively, as possible.
How is a Probate Started in Maryland?
Although any beneficiary or creditor can initiate probate, normally the person named in the will as the Personal Representative starts the process by filing the original will with the court and filing a Petition with the Orphans Court. If there is no will, typically a close relative of the decedent who expects to inherit from the estate will file the Petition.
How is the Personal Representative Chosen?
If the decedent had a will, the person named in the will as the Personal Representative will serve, if eligible. If that person is unable or unwilling to serve as Personal Representative, or if there is no Will, then any interested family member or person can petition the Court to be the personal representative or special administrator of the Estate.
How does the Personal Representative Get Paid?
Maryland law provides that the Personal Representative in a regular estate gets paid according to a compensation schedule, based on a percentage of the assets of the probate estate.
Could I Be Held Personally Liable For Making a Mistake as a Personal Representative?
Being a Personal Representative is a big responsibility. Maryland's probate code contains pages upon pages of legal rules and procedures that a Personal Representative must follow during the probate. Also, there are certain deadlines that a Personal Representative must meet in filing papers with the Court. If a Personal Representative violates any of these rules, they can be held personally liable for losses to the estate.
My loved one had a trust...will we need to go through probate?
In most cases, no. If your loved one's assets are owned in the name of a Trust, the family can contact a lawyer who will complete some paperwork and guide the loved ones through the process with ease without the need for court involvement.
Unfortunately, many people who have a Trust think they have it all taken care of. But time and again, family members of a recently passed loved one come into my office and they find out they are facing the frustration, expense and delay of a probate, even though the person they loved had a trust.
Why is that?
Often the Trust was prepared many years ago and was never updated; and often, their loved one's assets were not owned in the name of their Trust. That is why it is so very important that you carefully choose your estate planning attorney and have regular reviews of your plan and assets so the planning you do now works as planned later.
It's why we do things so much differently than most other lawyers and law firms, here at CHEN Law.
What Assets are Subject to Probate?
Assets owned solely in the name of the deceased person are subject to probate. Assets that pass by means of title, such as real estate titled as “Joint Tenants with Right of Survivorship,” or bank accounts titled as “Transfer On Death” are not subject to the probate process. Assets that pass by means of a beneficiary designation, such as life insurance or some retirement accounts, are also not subject to probate. In some situations, however, assets that would otherwise pass by title or beneficiary designation can be subject to the probate process. Talk to an attorney if you have questions about your specific situation.
How is Distribution of the Estate Handled if there is no Will?
If there is no will or trust, the estate will be distributed according to Maryland's probate and intestate laws, which state that a person's estate will be distributed in the following order: 1. Spouse 2. Children 3. Parents (if you have no children) 4. Siblings (if you have no children or parents), and so on.
How long does Probate take?
The length of time of a probate will depend on several factors. It can usually take a several months and take up to two years or even longer for complex cases.
How much does Probate Cost?
Cost of probate in Maryland include Regular Estate Probate Fees which can be as low as $50 to more than $2,500 plus personal representative commissions and attorney' s fees.
- 9% of the first $20,000
- 1,800 + 3.6% of the excess estate over $20,000
The Maryland probate court can order additional fees for more complicated cases or extraordinary services. There are also court costs and filing fees, document certification and recording fees, and property appraisal fees.