Frequently Asked Questions (FAQ's)
*Special Note: This information has been issued to inform and not to advise.
What is a Will?
A Will is a written document that directs the disposition of a person's property after death.
Who Can Make a Will?
Anyone who is at least 18 years of age and of sound mind can make a Will.
What Are the Formal Requirements for a Valid Will?
In Maryland, you must sign and date your Will, and two or more witnesses must sign the Will in your presence. Each witness must be at least 18 years of age. Wills do not have to be notarized in Maryland.
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Is a Will that has been Executed in Another State Valid in Maryland?
A Will that is valid in the state where it was executed will be valid in Maryland. However, if your Will was prepared in another state it should be reviewed to ensure that the language used in the other state will be given the same interpretation under Maryland Law. In addition, death taxes and probate laws vary from state to state; therefore, your Will should reflect the laws that would apply to your estate when you die. If you move to another state, your Maryland Will should be reviewed by a lawyer in the new state in order to determine if any changes are necessary or desirable under that state's laws.
When Should a Will be Changed?
Review your Will periodically. A significant change in personal or financial circumstances may mean that your Will should be revised or replaced. For example, births, deaths or a change in marital status warrants a review of your Will. Changes in Federal or State Tax Laws may necessitate revisions in your Will.
What if I Die Without a Will?
If you die intestate (without a will), State Law will determine how your probate assets will be distributed. In Maryland, if you are survived by a spouse and at least one minor child (under the age of 18), your spouse will receive one-half of the probate assets, and your children will receive the other one-half (a deceased child's share will pass on to that child's own children).
If you are married and all of your surviving children are over the age of 18, or if you have no descendants, and a parent survives you, your spouse will receive the first $15,000 of the probate assets, plus one-half of the balance. The remaining probate assets will pass to your surviving descendants or parents.
Your surviving spouse will receive the entire probate estate only if you have no descendants or parents who survive you. If you have no surviving spouse, your descendants will receive all probate assets. Your siblings or more remote relatives will receive a portion of your probate estate if a spouse, parent or descendant does not survive you.
Under Maryland Law, probate assets will pass to the county Board of Education only if there are no surviving blood relatives.
Who Should Prepare Your Will?
Your Will should be prepared by an attorney in order to structure the Will so that it reduces death taxes, ensures that the property will be distributed as you desire and satisfies other legal requirements affecting your estate. We do not encourage use of a “Do-It-Yourself” Will kit or the internet. Each state has various laws and guidelines when you prepare a Will.
How Much Does a Will Cost?
Attorney’s usually charge on an hourly basis at rates that vary from each attorney. The estate planning needs of each person will be different; therefore, the cost of a Will is affected by the amount of time it takes to review your personal and financial affairs and to prepare the Will.
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How can I get copies a Will or other documents filed in an estate?
You can visit our office or request your copies by mail. There is a charge of $.50 per page for all copies requested.
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Does the Register of Wills Office transfer the deeds for estates?
No. You would need to contact an attorney or the county Land Records where the property is located.
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Can I get a copy of a Death Certificate from your office?
No. To obtain a copy of the Death Certificate, you must contact Vital Records at 1-800-832-3277 or (410) 764-3038.
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What Kind of Taxes are Due When a Person Dies?
Both the Federal and State Governments impose taxes upon the property of a decedent. A Federal Estate Tax with graduated rates is imposed on all property interests that the decedent owned at the time of death. The Federal Estate Tax applies not only to probate assets, but also to such non-probate assets as joint property and insurance proceeds. Currently, Federal Law exempts the first $1.5 million from Federal Estate Taxes, but that amount changes yearly. Maryland also imposes an Estate Tax on estates over $1 million.
A properly drawn Will can reduce Federal Estate Tax substantially.
Maryland imposes an inheritance tax on probate property and non-probate property. There are no inheritance taxes on assets passing to exempt charities, a lineal heir/legatee (spouse, child, grandchild, great grandchild, etc.), brother, sister, or the spouse of a lineal heir/legatee. Inheritance tax at the rate of 10 percent will be assessed for collateral heirs/legatees.
Where Should a Will be Kept?
A Will should be kept in a safe place to avoid accidental loss or destruction. Executed Wills may be kept in any secure location. Some law firms and banks retain clients' executed Wills in their vaults. You should only keep a Will in a safe deposit box if someone other than you has access to the box because the box may be sealed upon your death.
You may also file your Will with the Register of Wills for safekeeping for a fee of $5.00. An original Will brought to the Register of Wills for safekeeping will be sealed in an envelope and you will be asked to print your name, address and social security number on the envelope. During your lifetime, the Will you deposited in the Register of Wills Office cannot be opened or released to anyone but you or to a person authorized by you in writing to receive the same. If you need to make a copy of the Will once it has been filed it is necessary for you to remove it and then the Will may be re-filed for an additional $5.00 fee. You should always make sure that the person you have named as you Personal Representative is made aware of the location of your Will.
What should I do with a will after a person dies?
After the death of a person, the person having custody of the Will should present the Will to the Register of Wills. If the person having possession of the Will is the nominated Personal Representative, they should call the office prior to arrival in order to assure any additional information or papers required can be mailed out.
A custodian who willfully fails or refuses to deliver a Will to the Register after being informed of the death of the testator/testatrix is liable to a person aggrieved for the damages sustained by reason of the failure or refusal.
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What is Administration of Estates?
When an individual dies, there are procedures in settling the estate. This process is called ESTATE ADMINISTRATION. Both State and Federal Law establish certain requirements which must be followed.
The word ESTATE is used to describe the property and obligations of a person who has died. ADMINISTRATION includes procedures and requirements relating to collecting of assets, satisfying of obligations such as debts, expenses and taxes, and distributing property to the heirs and beneficiaries.
What is an Executor or Personal Representative?
An Executor or Personal Representative is the individual or institution named to handle the administration of your estate. It is not necessary to name an attorney as a Personal Representative, but your Personal Representative should be a person who is capable of handling financial matters, maintaining detailed records and administering your estate.
What are the duties of the Personal Representative?
The Personal Representative of an estate has a fiduciary obligation to settle the estate and distribute the assets as promptly as possible, in accordance with the terms of the Will or the laws of intestacy. In order to do this the Personal Representative must gather all assets in the decedents name alone. For Regular Estates the Personal Representative must file an Inventory and Information Report, file an Accounting, pay debts, taxes, administration expenses and other responsibilities required by Maryland Law.
What is a resident agent and what are the responsibilities?
A nonresident of the state does not qualify to be appointed Personal Representative unless on file with the Register of Wills Office is a designation by the nonresident of an appropriate person who resides in the state. That person upon signing a form with their address then becomes the resident agent. The only responsibility of the resident agent is to accept service of process in the same manner and with the effect as if it were served personally in the State on the nonresident.
What is done during administration?
At the beginning, all assets of the estate, including personal possessions and real estate, are inventoried and sometimes physically gathered. All of the beneficiaries (if there is a will) or heirs (if there is no will) are located. They are told that they were named in the will or have a legal right to receive an inheritance. Funeral expenses, debts, State and Federal Taxes are paid, and necessary tax returns are filed.
At the conclusion of the administration period, a Final Accounting of all assets is presented for approval to the Orphans’ Court. After approval, distribution of the balance of assets is accomplished.
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What do I need to bring to open an estate?
The following is a partial list of the required documents to open an estate. Additional forms can be obtained and filled out in our office. You can also download forms at our website www.registers.state.md.us
- Original Last Will and Testament
- Death Certificate
- Approximate value of assets in the decedent's name alone
- Filing Fee
- Title to automobiles
- Names and addresses of interested persons
- Funeral Contract/Bill
What is the Distribution of Property if I Die Without a Will?
If the Decedent is survived by:
- Spouse and minor children of the decedent - spouse receives one-half, children share remaining one-half
- Spouse and children (all adult) of the decedent - spouse receives $15,000 plus one-half of remaining estate-children divide balance (the interest of a predeceased child passes to issue of that child)
- Children only of the decedent - children (does not include step-children) divide entire estate (the interest of a predeceased child passes to issue of that child)
- Spouse and parents of the decedent - spouse receives $15,000 plus one-half of remaining estate-both parents divide balance or surviving parent takes balance
- Spouse of the decedent without other heirs listed above - spouse receives entire estate.
- Parents of the decedent without other heirs listed above - both parents divide entire estate or surviving parent takes all
- Brothers/sisters of the decedent without heirs listed above - brothers and sisters divide estate equally (share of deceased sibling goes to their issue-nieces and nephews of the decedent)
- Grandparents without other heirs listed above - grandparents divide entire estate or, if deceased, to their issue (see applicable law for details)
- Great-grandparent without other heirs listed above - great-grandparents divide entire estate or, if deceased, to their issue (see applicable law for details)
- Step-children - if there are no heirs listed above.
- No living heirs or step-children - If decedent was a recipient of long-term care benefits under the Maryland Medical Assistance Program at time of death, net estate is paid to Department of Health and Mental Hygiene. Otherwise, the net estate is paid to the Board of Education.
Who has Priority to be paid if there are Insufficient Assets?
The Personal Representative shall make payment in the following order if the assets of the estate are insufficient to pay all claims in full:
- Fees due to the register;
- Costs and expenses of administration;
- Funeral expenses not to exceed $5,000.00 (for small estates) and $10,000.00 (for regular estates);
- Compensation of personal representative in a regular estate, legal services and commissions of licensed real estate broker;
- Family allowance – Spouse $5,000.00 each minor child $2,500.00;
- Taxes due by the decedent;
- Reasonable medical, hospital, and nursing expenses of the last illness of the decedent;
- Rent payable by the decedent for not more than three months in arrears;
- Wages, salaries or commission for services performed for the decedent within three months prior to death of the decedent;
- Old age assistance claims; and
- All other claims
What Fees are Paid During Administration?
A probate fee is charged for the administrative processing of the estate. This fee is based on the total gross estate, as stated in the tables below. There may also be charges for additional services including, but not limited to, the following: extra Letters of Administration; plain, certified or exemplified copies; entering claims; entering caveat papers; and certified mail fees for notices.
Small Estate
| If the value of the (small) probate estate is at least |
but is less than |
the fee is |
| $0 |
$200 |
$2.00(minimum fee) |
| $200 |
$5,000 |
1% of the value of the small estate |
| $5,000 |
$10,000 |
$50.00 |
| $10,000 |
$20,000 |
$100.00 |
| $20,000 |
$50,000 |
$150.00 |
Regular Estate
| If the value of the (regular) probate estate is at least: |
But is less than: |
The Fee is: |
| $20,000 |
$50,000 |
$150.00 |
| $50,000 |
$75,000 |
$200.00 |
| $75,000 |
$100,000 |
$300.00 |
| $100,000 |
$250,000 |
$400.00 |
| $250,000 |
$500,000 |
$500.00 |
| $500,000 |
$750,000 |
$750.00 |
| $750,000 |
$1,000,000 |
$1,000.00 |
| $1,000,000 |
$2,000,000 |
$1,500.00 |
| $2,000,000 |
$5,000,000 |
$2,500.00 |
| $5,000,000 |
—- |
$2,500 plus.02% of excess over $5,000,000 |
What is the Orphans' Court?
The Orphans’ Court for Prince George’s County hears matters involving controversial estates and judicial appointments of personal representatives. The Orphans’ Court approves accounts, and in cases where a petition is required awards Personal Representative’s commissions and attorney’s fees. The Orphans’ Court may determine the validity of wills and title to personal property not exceeding $20,000.00 in value.
What is Guardianship?
The Register of Wills Office only deals with Guardianship of minor persons and property of minors.
In most cases, the surviving natural parent becomes Guardian. The Guardian has a legal right and duty to care for the ward. This involves making personal decisions on his or her behalf, managing property or both.
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What is a Living Will?
A living will is a legal document that describes the medical care you want (or don’t want) if you become terminally ill or permanently unconscious. A living will is also known as an advance directive or health care proxy.
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