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Probate is the legal process of administering and settling a person’s estate after they pass, under the supervision of the Register of Wills and Orphans’ Court of the county where they lived. The probate process exists for three main reasons:
- To validate the deceased person’s Will and prevent fraud;
- To settle the deceased person’s debts, including taxes; and
- To distribute the deceased person’s assets to the intended recipients named in their Will.
If a deceased person does not have a Will, the probate process ensures that assets pass to the deceased person’s intestate heirs. If you die without a Will, instead of you choosing your beneficiaries, there are Maryland statutes that dictate the beneficiaries of your estate.
What is the probate process?
One of the first steps in the probate process is to appoint one or more Personal Representatives (also known as the Executors) of the estate. The Personal Representative has the legal authority and responsibility to administer the estate through the probate process under the Register’s and Court’s supervision. If the deceased person did not name a Personal Representative in their Will, the court will appoint a Personal Representative based on priority provided for in a Maryland statute (typically a surviving spouse or an adult child). Without a Will, the deceased person relinquishes his or her right to choose his or her Personal Representative.
Once the Personal Representative is designated, he or she will gather the deceased person’s assets, value the assets, pay off debts, and distribute remaining assets according to the Will (or through intestacy). Typically, the Register of Wills oversees the estate administration process during probate
The attorneys at Sessa & Dorsey are often designated as the Personal Representatives of our clients and their loved ones’ estates. Whether we serve as Personal Representative ourselves or serve as legal counsel to a family member who becomes Personal Representative, we regularly handle the entire administration process. In addition to making the probate process as seamless as possible, we can also handle all estate-related tax filings, retirement account transfers and life insurance distributions. Even in the most expected of times, bereaving a loved one’s passing can be extremely difficult. We are here to help you and your family cope with grief and manage all the steps involved with administering their estate.
How long does the probate process last?
Every estate is different, but most estates complete the probate process and are closed within approximately one year after the person passes. During this time, the Personal Representative must file various papers with the Register and Court. The first accounting is due nine months after the appointment of a Personal Representative. Therefore, if all the steps are completed within nine months, the estate can be finalized and distributed, typically within a year. For a more complicated estate, such as one that must file federal and/or Maryland estate tax returns, sell a piece of real property, or is involved in a lawsuit, the process will last until all matters are settled.
What if the deceased person’s probate estate is “small”?
An estate is considered small if it is valued at less than $50,000 ($100,000 if the estate is passing to a surviving spouse). Small estates may qualify for “small estate” proceedings which are not subject to probate and are often closed within two months. There is also a streamlined regular estate process known as “modified administration”. If all conditions are met, modified administration can streamline the estate process.
Do all assets have to go through probate?
Not all assets have to go through the probate process. Property that falls under “joint tenants with right of survivorship” or “tenants by the entireties” will be given to the surviving joint owner. If the deceased person had an insurance policy or retirement account with named beneficiaries, the proceeds from the policy or the retirement account will pass directly to the designated beneficiaries without going through probate. And if the deceased person set up a Revocable or Irrevocable Trust, then the assets titled in the trust are not subject to probate and will pass to the beneficiaries named in the trust.
We understand that Probate & Estate Administration can be confusing and stressful. Our team is here to help guide you through this difficult and emotional time. If you have questions, please contact Sessa & Dorsey at (443) 589-5600.