Last Will & Testament
In Maryland, a Last Will & Testament, or “Will,” is a written document taking effect at your death, with instructions specifying the management & distribution of your estate.
Wills direct the distribution of assets owned solely by the Decedent or that do not name a beneficiary. Assets that are jointly owned or that name a beneficiary pass directly to those individuals outside of the estate process.
To be legally valid in Maryland, a will must meet these requirements:
A will must:
- Be a written document,
- Be signed by the person who is mentally competent and at least 18 years old,
- Signed in the presence of two witnesses, who must also sign in that person’s presence.
Key components to include in a will:
- Designate an Personal Representative (executor) to manage your estate,
- Designate guardians for minor children,
- Outline preferences for funeral arrangements and burial or cremation instruction,
- Can establish Trusts to benefit children, grandchildren or other purposes, such as tax planning,
- Designate Trustees for Trust,
- Can include specific bequests and
- Should explain payment of all taxes that may occur as result of the Decedent’s death.
A will only becomes effective upon the testator/testatrix’s death. Until then, it serves as an expression of unenforceable intent.
Is my Will valid while I am alive?
Yes, but it is not enforceable until you die.
What are the requirements for a valid Will in Maryland?
Any competent person over the age of 18 may sign a Will. This must occur in the presence of two witnesses who also sign the document in front of each other.
What should my Will contain?
Among other instructions your Will should:
- Name executor(s) and alternate(s),
- Name who inherits, their relationship to you, when they inherit, and what happens if that person dies before you,
- Name guardians if both parents die with minor children,
- If there are taxes which arise as a result of your death, (such as an estate or inheritance tax), or that survive you, (such as income tax), detail how they are to be are paid, and
- List any specific bequests.
What controls, my Will or the titling of an asset?
Regardless of a Will’s contents, titling controls:
- When one owner named on an account dies, the surviving owner owns the account, and
- An asset which names a beneficiary is owned by that person at the owner’s death.
When does a Will become stale, can a copy be used to open an estate, and when should I update my Will?
- Wills do not become stale because of age.
- A properly drafted Will is valid until it is replaced.
- Normally the originally signed Will and not a copy must be used to open the estate. On occasion, a copy may be accepted by the court.
- A review of your planning documents should occur every 3 to 5 years as laws, your circumstances, and your goals change.
- When these changes occur, your Will should be updated through an amendment called a “Codicil” or a new Will should be prepared.
Disclaimer – This overview is provided for general information relevant for planning undertaken in Maryland only. None of the information within should be relied upon. Statutes, regulations, and the cases interpreting them are constantly changing. Consult an attorney before taking any action. Your reliance on or use of this information does not create an attorney/client relationship or privilege between you and the law firm and its employees, or their heirs, personal representatives, successors, or assigns.
LEARN MORE
- Reasons to Create an Estate Plan Now vs. LaterHave you ever said or overheard someone else say I do not need a Will, Power of Attorney or Advance Care Directive? By not engaging in estate planning you are allowing laws enacted by the legislature to make your decisions.
- Save Your Estate for Your Heirs: Avoid These Probate IssuesAlmost every estate must go through probate. It is potentially a very complicated legal process, and an attorney should be involved in any estate planning activities.
- 12 Simple Steps to Creating an Estate PlanThere are many decisions to be made and complex tax laws to consider as you’re making a plan for your estate.