Frequently Asked Questions
About Orphans' Courts . . .
What do the judges of the Orphans’ Court do?
Orphans’ Court judges mainly are responsible for the supervision of estates that must go through probate. They also may appoint Guardians for the person and property of minors (person under the age of eighteen). Orphans’ Court judges conduct formal hearings involving estate or guardianship disputes and rule on Petitions and Administration Accounts involved with estate and/or guardianship proceedings.
How many Orphans’ Courts are there?
There is an Orphans’ Court in Baltimore City and in each county in the State of Maryland. Except for Harford County and Montgomery County, where a Circuit Court judge sits as an Orphans’ Court in probate proceedings, there are three judges on every Orphans’ Court and all three of these judges must run for election every four years in the gubernatorial elections. An Orphans’ Court Judge must be a citizen of the State of Maryland and have lived in the jurisdiction where he or she serves for at least the preceding twelve months.
Does the property of everyone who dies end up in probate?
No. The only time the property of a person who passes away goes through the probate process is if the decedent held property just in his or her name alone.
What are examples of property which pass outside of the probate process?
Proceeds from insurance policies pass directly to the named beneficiaries (unless the policy names the estate as beneficiary) without being part of the probate process. Property held as joint tenants with right of survivorship or as Tenants by the Entireties will pass to the surviving joint owner. Property held as “payable on death” will pass to the designated beneficiaries. Assets that are held in a revocable or irrevocable trust will pass to the beneficiaries named under the trust instrument without going through probate (unless the trust terminates and provides the assets are to be distributed to the estate).
About Wills and Codicils . . .
What is a Last Will and Testament?
It is a signed, written statement describing how a person wants his or her property owned in individual name to pass at death, which, if executed in accordance with the requirements of Maryland Law, will be enforced by the courts. A Will generally also names the person (referred to as Personal Representative) who is selected to handle the final affairs. If a trust is set up under the Will, the Will would describe the trust and indicate the name of the person who is to serve as Trustee. If there are minor children involved, the Will could name the person(s) selected to serve as Guardian(s) of the person and property of the minor children.
What is required to execute a Will or Codicil?
Under Maryland Law, a Will or Codicil is required to be in writing and must be signed by the individual making the Will or Codicil. The Will or Codicil must be witnessed by at least two credible witnesses who must sign the document in the presence of the maker of the Will or Codicil (it is advisable that the witnesses also print their names clearly and provide their addresses). There are procedures which allow for execution of a Will or Codicil where an individual is unable to sign. The person executing the Will or Codicil must be at least eighteen years old and legally competent. The Will or Codicil should be dated. There must be conformity with all the requirements under Maryland Law and it is advisable to have a Will or Codicil prepared by an attorney.
What if there are two or more original Wills?
Most Wills have a provision which revokes all prior Wills, so generally the Will with the latest date is admitted to probate. However, after a person dies, all original Wills that have been found should be presented to the office of the Register of Wills.
What is a Codicil?
A Codicil is an amendment to an original Will. There may be more than one Codicil. After death all Codicils should be presented to the office of the Register of Wills along with all original Wills.
Is it possible to challenge or change the terms of a Will or Codicil after someone’s death?
An interested person may file caveat proceedings to challenge a particular Will or Codicil on various grounds, including lack of testamentary capacity at the time the document was executed, undue influence or fraud. There are strict time limits which apply to filing such proceedings and formal procedures must be followed. It is generally advisable to obtain legal counsel for such matters.
Will the State get all the property if someone dies without a Will?
In most cases, no. If a person owns assets in his or her individual name and dies without a Will, assets remaining after payment of administration expenses, debts and taxes (if any) are distributed to the person’s heirs as provided under Maryland Intestacy Laws (the person is said to have died “intestate”).
Generally, the Intestacy statutes provide for property to be distributed to a decedent’s closest living relatives, i.e., to a surviving spouse and children, if there are any; to children in equal shares if there is no surviving spouse; to parents if there are no spouse and children; and so on to more distant relatives. If there are no known blood relatives but there are stepchildren, the property would be distributed to the stepchildren, in equal shares. It is only if there are no known blood relatives or stepchildren that an estate may end up being distributed to the Board of Education in the City or County where the decedent lived.
Nevertheless, it is advisable to leave a Will because you may not wish to leave your property in the way or in the amounts the general Intestacy statutes provide.
What if a person dies with a Will and/or Codicil(s) but there are no assets in the decedent’s sole name?
Maryland Law requires that any one holding an original Will and/or Codicil(s) must file that document with the Register of Wills promptly after a decedent’s death even if there are no assets. However, although the Will and/or Codicil are kept on file, no probate proceedings are required to be opened.
What should a person do with an original Will and/or Codicil during his or her lifetime?
Upon execution, a Will and/or Codicil may be kept in a secure place such as a jointly owned safe deposit box, attorney’s office, left with the person named as Personal Representative or filed with the Register of Wills in the City or County where the person resides. It is very important to let one’s loved ones or other responsible people know where to find the originals of these documents.
About Administering Estates in Maryland . . .
If a person dies with assets in individual name, where is the estate opened?
The estate should be opened in the county (or City) where the decedent was domiciled (generally where the primary residence was located).
Who is responsible for opening an estate?
If there are assets in the decedent’s sole name, the estate proceedings are opened by the person(s) named as Personal Representative(s) under the decedent’s Will (and any Codicils). If the decedent left no Will, Maryland Law determines who has the highest priority to be appointed Personal Representative.
What happens to property subject to probate?
The Personal Representative is responsible for identifying probate assets (assets in the sole name of the decedent), filing the necessary forms and tax returns required by Law, paying from the estate assets administration expenses, valid creditor claims (including funeral expenses) and taxes (if there are any), and making distribution of the remaining assets to the proper beneficiaries under the Will if there is a Will or to the decedent’s legal heirs under Maryland Law if there is no Will.
How long does an estate going through probate have to remain open?
Generally, unless the estate includes real property which needs to be sold, requires the filing of a U.S. Estate Tax Return, or is tied up in litigation, a regular estate proceeding may be closed after the period for filing creditor claims expires (six months from the date of death). If there is a Will and/or Codicil, a regular estate may be closed after the time for challenging the Will and/or Codicil(s) expires (six month from the appointment of the Personal Representative). Many regular estates are closed and final distributions made within one year of death.
Are there simplified probate proceedings?
Yes, if the probate assets are less than $30,000 in value ($50,000 if passing to a surviving spouse), the estate may qualify for statutory “small estate” proceedings which are often closed within two months. In a small estate proceeding no Inventory is required to be filed and no Administration Accounts need to be approved by the Orphans’ Court. There is also a streamlined procedure called “modified estate administration” which allows an estate to be closed within ten months of the appointment of a Personal Representative and requires no Orphans’ Court involvement. Not all estates qualify for small estate proceedings or for modified estate administration and this may be discussed with the Register of Wills’ office.
What is an insolvent estate?
An insolvent estate is an estate where there are insufficient probate assets to pay family allowances, administration expenses, funeral expenses and all valid creditors of the estate.
Does every estate that is opened have to involve the Orphans’ Court?
If there is a dispute involving the estate, Orphans’ Court judges conduct hearings to resolve that dispute. Orphans’ Court judges also are responsible for approving Administration Accounts required in regular estate proceedings and (except for limited situations) acting on Petitions requesting payment for Personal Representative’s Commissions and/or Attorney’s Fees. However, if there are no disputes requiring a hearing before the Orphans’ Court, the Personal Representative and beneficiaries (or heirs) may have no direct contact with the Orphans’ Court judges.
About Guardianships of Minors . . .
When may the Orphans' Court appoint a Guardian?
If property passes to a minor (a person under the age of 18) and there is no other provision under the Will protecting the property (such as a trust or language providing for a Custodian to be appointed under the Uniform Transfers to Minors Act), the Orphans’ Court may appoint someone to serve as Guardian for the property of the minor. If the assets exceed $10,000, annual reports are required to be filed with the Court and a bond is required.
The Orphans’ Court, under certain circumstances, also may appoint someone Guardian of the person of the minor. In these cases, the Guardian is responsible for caring for the minor and making decisions regarding health care and education.
The Circuit Courts also have jurisdiction to appoint Guardians of the person and property of minors.
The Orphans’ Court does not have jurisdiction over adult disabled persons.