Probate

When a person dies, they typically leave behind an estate consisting of all assets owned by the decedent at the time of death. Probate is the legal process that is required before those assets can be transferred to the intended beneficiaries and/or heirs of the estate.

Formal probate is not always required; however, some type of probate is usually necessary. Like most states, Maryland offers a simplified probate for small estates if the estate assets are valued at less than $50,000 (or up to $100,000 if the spouse is the sole heir).

Not all assets are required to go through probate. Determining which assets are probate assets and which assets are non-probate assets is one of the first steps when probating an estate because non-probate assets bypass the probate process. Common examples of non-probate assets include:

• • Assets held in a trust.
  • Proceeds of a life insurance policy.
  • Certain types of jointly help property.
  • Assets held in an account with a “payable on death (POD)” or a “transfer on death (TOD)” designation.
  • Certain retirement and pension accounts.

If the decedent left behind a Will, that Will is submitted to the appropriate Orphan’s Court for probate. The terms of that Will dictate what happens to the decedent’s assets that are subject to Probate.

When someone dies without leaving behind a valid Last Will and Testament, the individual is said to have died “intestate.” Dying intestate does not avoid probate. Instead, the assets in an intestate estate are distributed according to the Maryland intestate succession laws. Usually, this means that only close relatives will inherit from the estate.

If the decedent left behind a Will, the individual named as the Personal Representative (referred to as the Executor in some states), in the Will oversees the probate process. If the decedent died intestate, the court will appoint a Personal Representative.

Probate is a unique process for every estate; however, there are some common steps, such as:

• • Identifying, locating, securing, and valuing estate assets
  • Opening the Estate and submitted the Will for Probate.
  • Notifying creditors that probate is underway.
  • Reviewing creditor claims and approving or denying each claim.
  • Calculating and paying any state and/or federal tax due.

The time it takes to probate an estate will depend on several factors, including the value and complexity of estate assets, the presence or absence of a Will, any challenges and litigation during the process, and the effectiveness of the Personal Representative. In Maryland, creditors have six months to file claims against the estate so it will typically take at least eight months or more to complete the probate process.

When the decedent’s Last Will and Testament is submitted to the court for probate, anyone may challenge the validity of the Will by filing a Will contest (also called a Caveat). If a Will contest is filed, the Personal Representative of the estate must defend the Will throughout the ensuing litigation. Basically, the probate process comes to a halt while the contest is litigated. If the contest is successful, the Will is declared invalid, and the court looks for another valid Will or the estate is probated using the state’s intestate succession rules. If the contestant is unsuccessful, probate resumes using the Will submitted to the court.

The probate process can be a lengthy and complex process that often requires a certain degree of legal and financial acumen. For this reason alone, it is a good idea to retain an experienced probate attorney to help.