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Frequently Asked Questions About WillsWhat is a Will? A Will is a written legal document prepared for one person, called the testator, which sets forth what is to happen after death to his or her property, called the estate, and who is to be named as guardian to care for any minor children. The Will appoints a person called the personal representative (sometimes called the "executor"), who carries out the instructions in the will. A person receiving a gift from your estate is called a "beneficiary." In general, a will becomes effective only when it is signed by you and witnessed with certain formalities. It will control the disposition of your estate unless it is revoked. Maryland law requires that the Will be in writing, signed by the testator and witnessed by two individuals in the testator's presence. This is called "executing a Will." When you are ready to execute your Will, you should have at least two disinterested witnesses, although three is preferable. The witnesses should not be beneficiaries under your Will. Since the property you own may change over time, or the persons you named as personal representative or beneficiaries may die, or you may simply change your mind about how you want your affairs handled after your death, an annual review of your Will is a good idea. What Happens if You Die Without A Will? If you die without leaving a valid Will, money and other property you own at death will be divided and distributed according to "intestate succession" laws of the state. These laws divide all property between a few close relatives according to a set formula, and completely exclude, more distant relatives, friends and charities. These laws may not reflect your wishes. If you are married and have no children, Maryland law requires your spouse to share your property with your parents. There is even less protection for unmarried couples. No state's interstate succession law gives an unmarried partner any property. Interstate succession laws do not deal with the question of who will take care of minor children if both parents die or if the surviving parent is unavailable, leaving it up to the courts and social service agencies to appoint a guardian. Even though the court has the ultimate authority to appoint a guardian, a Will is the only way to let the court know who you want to raise and educate your children. Every adult should have an up-to-date Will. If you are married you and your spouse will each need a will. It is not necessary to be a citizen of the United States to prepare a Will. If you live in Maryland, you should make the Will in Maryland, but Wills made elsewhere are also valid. What are the Age requirements to Make a Will? You must be of legal age to make a valid Will. In most states, including Maryland, you must be at least 18 years of age. You must be "of sound mind," that is, you must have the mental capacity to make a valid Will. Generally, this means that you:
When Should You Modify Your Current Will?
What are Guardianships and Trusts for Minor Children? A minor child must have an adult guardian unless a court has declared he is legally "emancipated." The determination of who is a "minor" is a matter of state law. Maryland declares that anyone under the age of 18 is a minor. Normally the surviving spouse becomes the personal guardian of your minor child. Parents. Should agree on who they want appointed as personal guardian of their children in case both parents die simultaneously. In the case of divorced or separated parents, the surviving parent will generally have the best claim to be the guardian of their child, although anyone may challenge a person's petition to be guardian of a child. If the surviving parent is unavailable, the courts will give great weight to the preference contained in the deceased parent's Will. Minor children cannot own property. This means that there must be an adult legally responsible for supervising and administering property owned by a child. Thus, you need to name a property guardian for your minor children. Usually this is the same person who has been named as the personal guardian of the children. If you have substantial property and you want this property to be managed on behalf of your child beyond the age of majority (i.e., age 18 or 21) you need to leave your property in trust. If you decide to establish a trust for your minor children you must choose a trustee and determine the age at which the property in the trust will be released to the beneficiary. The trustee should almost always be the same person as you chose as the children property guardian, and usually will be the person you designated as both the personal and property guardian. You should also name a successor trustee, in case your first choice is unable to serve. You also have the option of naming two or more people to act as co-trustees. What Property Does Not Pass Under a Will? A Will does not dispose of property which would pass to another by contract or by operation of law. Common examples are: You fully retain the right to do whatever you choose with your property during your lifetime, even if you have left the property to someone in your Will. A bequest to someone only means that they receive the property if you own it upon your death. Who should be the Personal Representative? Choosing your personal representative, is one of the most important decisions you make when you make a Will. The personal representative is responsible for taking your Will through probate. The personal representative pays your bills and taxes and distributes your property according to your instructions. You should name a person you trust who will see that your estate is settled quickly and efficiently. Your personal representative does not have to be an attorney or an accountant. Often, your spouse, an adult child, or a close relative, is appointed. Your personal representative can always hire an attorney or an accountant if they need help to settle the estate. You may want to name an alternative personal representative in your Will. Then, if your first choice cannot serve, your next choice can be appointed. If you do not name an alternative, and the person you named cannot serve, the court will appoint someone to serve. Should I make a copy of my Will? Do not make more than one signed and witnessed original of your Will. You may. However give an unsigned copy to your proposed personal representative and your spouse, friends or children. You Will should be easy to locate after your death. Store your Will in a fireproof metal box, file cabinet or home safe. A safe deposit box is not a good place to store your Will because your bank may limit access to the box after your death. Make sure your personal representative and at least one other person you trust know where to find your Will. A will that cannot be found is of no effect. |
| Source: AARP-edited for Maryland by the Legal Aid Bureau, Inc. |
Last legal review: 5/21/00 (Legal Aid/LB) |
