How Does Probate Work?
The courts in Virginia, Maryland, and the District of Columbia (DC) that handle probate cases primarily deal with the administration of an estate after a person dies. They also deal with the property of minors and incapacitated adults, as well as trusts and wills. If you are dealing with probate in these areas, you may be asking the question, how does probate work? Sitting down with an experienced estate-planning lawyer can help you understand the finer points of the probate process. In the meantime, take a look at this article explaining the basics of how the courts probate estates.
Probating a Will
If your deceased loved one left a will, you have to probate the will. You must select the correct court to file the probate case. The appropriate court generally is where the decedent resided, or if none, where the decedent owned real estate, or if none, then the place where the decedent died or had an estate. If the decedent owned real estate in multiple states, an “auxiliary estate” must be opened in each state where the decedent was not a resident. Although DC and Maryland have separate probate courts, Virginia does not.
The first step is to prove that the testamentary document is authentic and valid, and is the last will of the deceased. Although Maryland does not require that wills be notarized, you must sign your will in front of at least two witnesses who are 18 years or older and who also sign the will in their capacity as witnesses. If someone makes a valid will in another state but dies while living in Maryland for example, the Maryland courts will honor the will.
Although television and movies make high drama of “will readings,” the process in real life is not so melodramatic. The person who has the will files it with the appropriate Register of Wills (in Maryland) after the decedent’s death. The court then notifies everyone named in the will and all natural heirs. In DC, you must file the will with the Probate Division within 90 days after the death. You are not allowed to file a will before the testator (the person who made the will disposing of her assets) dies, but a Maryland Register of Wills will accept a testator’s will for safekeeping.
If the decedent died without a will or the court refuses to authenticate the will you file, the estate is intestate. When someone dies intestate, state law will control who inherits his assets. The priorities and percentages to the heirs vary by state, but the general rule is that the surviving spouse and minor children stand first in line. If there are no surviving spouse, children, or grandchildren, then the parents of the deceased usually inherit, but if they are not still alive, then the siblings of the decedent can inherit.
Requirements of an Executor or Personal Representative of the Estate
Contrary to popular opinion, the law does not require that the court appoint a personal representative or executor of the estate in all probate matters. Small estates can go through informal administration.
Property That Does Not Go Through Probate
The court will not distribute insurance proceeds unless the named beneficiary of the policy is the estate of the decedent. Also, the court will only dispose of property the decedent owned solely or as a tenant in common. For example, the court will not handle jointly owned property with right of survivorship or property held in a revocable trust.
Other Probate Matters
When an incapacitated person is age 18 or older, the court can appoint someone to serve as guardian or conservator to handle the person’s care and finances. When a child (someone under the age of 18) is entitled to receive assets, for example, from a car accident injury settlement, an adult must open a guardianship of minor’s estate case in the probate court to approve and oversee the child’s funds.
If you have questions about how probate works, schedule a consult with estate planning and administration attorney Stephen Thienel today. Mr. Thienel has decades of experience assisting clients with their estate plans throughout, Maryland, Virginia, and the District of Columbia.
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