A Last Will and Testament, or Will, is a document you create to instruct how you want your property distributed upon your death. Who gets the house? Who gets which antiques? Who gets a bank account? Who takes care of the pets? These are just some of the questions upon which a will answers and instructs, and just some of the information we will obtain to draft a solid Last Will and Testament that can stand up in probate and prevent challenges to its validity.
Our estate planning attorney in Maryland will review your assets and discuss your options with regard to disposition of your estate upon your death. Making sure your goals for today and tomorrow are met is our personal goal at AC Ishak Law LLC. Contact us online or at 443-502-5558 to learn more about wills specifically and estate planning generally so that you and your heirs do not get surprised in a way that is to your detriment.
What is the Purpose of a Will in Maryland?
The person creating a Will is known as the testator. The beneficiaries are the persons named in the Will by the testator to receive the testator's property and assets upon his or her death. This gives testators far more control over assets – both while they are alive and after they pass away. The personal representative is the person the testator nominates to oversee the distribution of assets as directed in the Will.
As such, the Will serves four general but important purposes:
- allows the testator to control what happens to property after death
- incentivizes productivity of estate assets
- protects the testator's heirs, including minor children, by appointing a guardian
- appoints a personal representative who will oversee the testator's estate.
In order for the Will to work as intended, it must adhere to proper procedures and take into account certain property and contract rights as it relates to your property under state and federal law.
General Requirements of a Will in Maryland
Each state's laws governing creation and interpretation of a Will and what makes it valid may differ somewhat, but all states have four basic requirements that are true no matter what.
- The testator must have testamentary intent, meaning the testator subjectively intended to create the Will.
- The testator must have testamentary capacity, meaning that they understood they were creating the Will at the time of its execution.
- The Will must have been executed without the interference of fraud, duress, undue influence, or mistake.
- The Will must have been properly executed pursuant to your state's law.
Intestacy: The "Default: Method if You Die Without a Will
There are two key reasons to create a Will: family and probate matters. If someone dies without a Will, this is known as dying "intestate." Should a person die intestate, then the state will determine the the manner in which your property is distributed upon your death according to predetermined rules.
Family
Intestacy laws aim to pass property in a way that most people would want it to pass, which basically means any property is passed to immediate family members: to spouses and children first and, if none, to parents, siblings, grandparents, and so on. Intestacy laws only benefit you if you are comfortable with your hard-earned property going to your immediate family members according to your state's predetermined plan.
The problem here is that if you have stopped a relationship with a family member, or have a blended family due to a subsequent marriage, these issues may not be taken into consideration when the state steps in to disburse your assets. This could result in property, (or even the custody of a minor child) passing to a relative whom you would not wish to be a beneficiary and/or guardian.
Probate
Property governed by intestacy law must pass through probate court, first, which can be expensive and time-consuming, leaving fewer benefits and more burdens for your loved ones. That said, a valid Will also goes through probate to implement its provisions ensuring that your wishes of property distribution are followed. The difference between the two processes is that a well-crafted Last Will and Testament will likely go through probate more quickly and will be difficult to challenge.
Further, there are other ways to distribute property according to your wishes while possibly avoiding probate completely. Speaking with an estate planning lawyer will help you determine what estate planning tools will work best for you given your situation and assets.
The Risks of “Do-It-Yourself” or DIY Wills in Maryland
The expense and lack of control that comes from dying intestate, coupled with the perceived costs of hiring a lawyer to write a Will, has led to a huge increase in the use of “do-it-yourself” Wills. These forms, often found online for a relatively small fee, claim to be just as good as a traditional Will prepared by an experienced attorney. Despite the initial low investment, mistakes can be made that may make it more costly in the long run.
These "one size fits all" documents are often not tailored to your unique circumstances. Mistakes made during the DIY process may open the door for challenges to the validity of a Will upon your death. In fact, in certain circumstances, a court could dismiss your Will completely.
While we do not recommend a DIY Will, if you decide to try a one before consulting with one of our estate planning attorneys, keep the following five tips in mind:
- Define who your family members are in your Will.
- Assign and direct the personal representative to pay debts and expenses, including anything from credit cards to personal loans to funeral expenses.
- Make specific bequests or gifts so that there is no confusion about who gets what.
- Provide a catch-all clause for assets that you do not specifically give away.
- Finally, be specific about people and property as much as you can. Wherever there is any ambiguity there is also room for a challenge.
That said, in the least, it is a good idea to have an attorney review your Last Will and Testament to make sure it is in compliance with state and federal laws and distributes your property as you intend after consideration of other property and contract rights that may be inconsistent with the wishes stated in your will.
Contact an Attorney for Wills in Maryland
If you are considering making a Last Will and Testament, our estate planning attorneys at AC Ishak Law LLC can help clients in Maryland create strong Wills that comply with applicable state and federal laws so you don't have to worry about it. We know how hard you worked for your assets and understand why it is so important to distribute your assets in the way you see fit to do it. Contact us by filling out the online form or calling us directly at 443-502-5558 to schedule a strategy session.