Is A Will Necessary?

A will is necessary if you want to specify to whom you want your assets distributed to upon your death. If you have not executed a will or other dispositive document, a court will decide who your assets will be distributed to. Preparing a will is an act of concern to insure that the people you care for receive the property you want them to have.

In Maryland, if you die without a will, or intestate, leaving a spouse and a minor child, your spouse will only receive one-half of your assets, and your remaining assets will be distributed to your child. If your surviving children are over the age of 18, or you have no descendants, but a parent survives you, your spouse would receive the first $15,000 of your probate assets, plus one-half of the balance of those assets. The remaining assets would be distributed to your surviving descendants or parents. Only if there are no surviving issue or parents would your spouse receive your entire probate assets. Therefore, if you want your spouse to receive more than what they would receive if you died intestate, you should prepare a will to so provide.

If an intended legatee of your estate is unable to manage their assets, your will can provide that assets distributed to that legatee are to be placed in a trust, whereby the trustee, named in your will, will manage those assets, and distribute them to the legatee as you direct in your will.

In a will, you can also provide for specific bequests of your property, such as jewelry, antiques or family heirlooms, to certain individuals or charities. If you die intestate, the court will decide to whom your precious property is distributed.

In a will you can also specify who you would like to serve as the Personal Representative of your estate. If you do not name a Personal Representative in your will, a court will appoint someone to serve as your Personal Representative. Since a Personal Representative is responsible for making sure that the provisions of your will are carried out, you will probably want to designate someone you know and trust in your will to serve as your Personal Representative. You can also grant your Personal Representative broader administrative powers in your will, than are provided under Maryland law. For example, if you operate an unincorporated business, you may want to grant your Personal Representative the authority to operate your business for more than four months, as provided under Maryland law.

If you have minor children under the age of 18, a will is especially important. In Maryland, a minor child may not receive a distribution of property or money in excess of $5,000. If you prepare a will, you can include a provision in it authorizing your Personal Representative to distribute property to a custodian, whom you can choose, to hold the property for your children. If there is no such authorization, your Personal Representative will have to petition the court for authority to distribute or deposit the property and money, or the court will appoint a person or entity as guardian to receive the property and money on behalf of your minor children. In either event, the property and money must be distributed to your children when they reach the age of 18.

If you do not want your minor children to receive a distribution when they reach the age of 18, you can include trust provisions in your will, wherein you state when and under what circumstances your assets will be distributed to them. In summary, important reasons for preparing a will are to arrange for the responsible supervision of any property your children may own, and to provide for reasonable time periods for the distribution of property to them.

You can also include a provision in your will appointing the person or persons you wish to serve as guardian of your minor children in the event you and your spouse die. You should both agree as to the person you wish to appoint, and it is important that the person chosen be ready, willing and able to assume parenting responsibilities. If you do not appoint a guardian in your will, a court may appoint any person, who is interested in the well being of your children, as their guardian.

Provisions in a will can also facilitate the probate process. For example, your will can provide that your Personal Representative may pay funeral and burial expenses, without having to file a Petition and obtain a Court Order to do so.

Finally, your will can include tax saving provisions which reduce or eliminate the amount of estate taxes which will be paid out of your estate assets or by the beneficiaries of those assets.

There are many reasons for having a will, and keeping it current. Take the time now, to make your wishes known and enjoy the peace of mind these decisions bring.

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