What Happens If You Die Without a Will in Maryland?

If you die without a will in Maryland or do not express your final wishes in an estate plan, state law determines who makes your funeral arrangements and receives your property. In our Rockville, Maryland, estate planning practice at The Law Office of Henry Nash, our goals include ensuring that our clients’ final wishes are carefully documented to the finest detail.

Problems in an Estate Without a Will

In the absence of a will, your loved ones will face difficult questions after your death. Many issues arise, beginning immediately. Those issues include:

• What were your wishes about your final arrangements, including your funeral and burial?
• Who makes your final arrangements?
• Who receives your property?
• What is the best way for the beneficiaries of your estate to receive your property? Is it better to give the property outright or put it in a trust?
• Who administers your estate?
• Who will care for your minor children and manage their finances?

All those issues can create confusion and tension for your loved ones. That can lead to arguments and disagreements among family members. In some cases, an estate with no will or estate plan even ends up tearing a family apart.

Creating a valid will or estate plan that governs what happens after your death avoids all these problems. The best way to accomplish that goal is to consult with an experienced estate planning attorney.

Maryland Law of Intestate Succession

The legal term intestate applies to a person who dies without a will or estate plan. If you die intestate, Maryland laws of intestate succession determine distribution of the property in your estate.

Under the laws of intestate succession, your property goes to family members and relatives in an order of priority. Those most closely related to you (your spouse, children, and parents) have the highest priority.

The law provides for distribution down your family lineage, eventually to your most distant relatives. If you have no heirs under the intestate succession law, your estate goes to the State of Maryland, either to the Maryland Department of Health (to reimburse any long-term care payments you received) or to the county board of education.

The intestate succession law does not provide for distribution to any person unrelated to you or to any charity. If you wish to leave property to your favorite charity or to someone not related to you, making a will or estate plan is essential.

Property Subject to Distribution Under the Intestate Succession Law

Generally, only assets that are solely in your own name pass under the intestate succession rules. The law does not affect many important assets. Common types of property that are not subject to the law of intestate succession include:

• Assets in a living trust
• Proceeds of a life insurance policy or annuity with a designated beneficiary
• Funds in IRA and other retirement or pension accounts with designated beneficiaries
• Pay-on-death (POD) or transfer-on-death (TOD) bank accounts
• Property you own with another person in joint tenancy with a right of survivorship, in tenancy by the entireties, or as community property with a right of survivorship

Special Cautions for Married Couples Without Wills

Married couples often think that they do not need wills or an estate plan, based on the assumption that a surviving spouse automatically inherits everything. However, under some circumstances, a surviving spouse does not inherit the entire estate. Failing to have a will or estate plan can be a huge mistake for a married couple.

A surviving spouse does receive property held jointly with a right of survivorship or assets for which the spouse is the named beneficiary. However, if the deceased spouse owned property in his or her name, the surviving spouse does not automatically inherit all that property under the Maryland law of intestate succession.

Specifically, if there are living children or parents of the deceased spouse, the intestate succession rules provide for dividing the estate assets between the surviving spouse and children or surviving spouse and parents. That can lead to significant problems, especially if the deceased spouse owned real estate. If the surviving spouse wants to keep the real estate, but the children or parents want to sell it, a significant family dispute is the likely result.

Everyone over age 18 who owns property should have a will or estate plan. It is especially important for married couples to create wills or an estate plan to ensure that a surviving spouse will be cared for as intended. If a couple has minor children, creating an estate plan is even more critical.

Other Issues You and Your Family Face If You Die Without a Will or Estate Plan

Planning for the unexpected by creating an estate plan for your family has benefits beyond designating the individuals you wish to make decisions and inherit your property after you die. If you have minor children, your will or estate plan designates who serves as guardian for your children in the event of your death. If you own a business, your estate plan addresses what happens to the business if you die or can no longer run it.

A sound estate plan covers more than what happens after your death. It also includes documents like a durable financial power of attorney, which designates who will handle your finances in the event you are incapacitated through an accident or illness, and a durable health care power of attorney, which addresses who makes your medical decisions if you can no longer make them yourself.

Finally, if you die without a will, administration of your estate most likely will take more time and cost more money than if you plan ahead and make a will or estate plan. Leaving the decisions about what happens after your death in the hands of state law also means you may give up opportunities for tax savings and avoiding probate of your estate.

Talk With an Experienced Rockville, Maryland Elder Law Attorney

Attorney Henry Nash has extensive experience helping clients create an estate plan that fits their individual and unique circumstances. At The Law Office of Henry Nash, we work with clients in Rockville, throughout Montgomery County, and elsewhere in Maryland.

If you have questions or concerns about any issues relating to wills or estate planning or about probate and estate administration, we welcome you to call us at (301) 998-6111 or contact us through our online form.