Frequently Asked Questions About Wills
Topics on this page:
- What is a Will?
- Executing a Will
- What Happens if You Die Without A Will?
- Who Should Make A Will?
- What are the Age requirements to Make a Will?
- Must you be of "Sound Mind"?
- When Should You Modify Your Current Will?
- What are Guardianships and Trusts for Minor Children?
- What Property Does Not Pass Under a Will?
- Who should be the Personal Representative?
- Should I make a copy of my Will?
- Where Should I Store My Will?
A will is a written legal document that states what you want done about various topics after you die. A will can include your wishes about what happens to your belongings (called the "estate"), and about who will care for any minor children.
When you make a will, you are called the "testator." In the will, you should state who you want to carry out the instructions in the will. That person is called the "personal representative." Sometimes that person is also called the "executor." A person who receives a gift from your estate is called a "beneficiary."
A will only becomes effective only when it is signed by you and witnessed with certain formalities. Unless you revoke your will, it will control what is done with your estate. Maryland law requires that your will be in writing, signed by the testator (you) 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 witnesses, although three is better. It is legal for a beneficiary to act as a witness, but it is better to use witnesses who are not beneficiaries.
Because details of your life may change, it's a good idea to review your will each year. For example, the property you own may change over time. The persons you named as personal representative or beneficiaries may die before you. Or you may simply change your mind about how you want your affairs handled after your death.
Your will does not have any legal effect until it is properly signed and witnessed. Estates and Trusts Article Title 4, Subtitle 100 governs the proper execution of a will in Maryland. Maryland law requires only 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.
Read the Law: MD Code Estates & Trusts §§ 4-101 to 4-107
Tell two or more trustworthy people that this is your Last Will and Testament and that you wish them to act as witnesses. They do not need to know what is in your will. In their presence, you will sign your will and they will sign confirming that you are the one who signed your will.
You and your witnesses must all sign in each other's presence. You must sign on the same piece of paper or on a paper physically connected (stapled, etc.) to the will. You should date the signatures to protect against challenges to the will. You may also wish to initial each page to protect against someone inserting an extra page into the will after you die, though this is not required.
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. Intestate succession law does not grant an unmarried partner any property.
Intestate 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.
You must be 18 years of age or older to make a will in Maryland.
You must be "of sound mind," that is, you must have the mental capacity to make a valid will. Generally, this means that you:
- Understand what a will is, what a will accomplishes, and that you are making one.
- Understand the relationship between yourself and others such as your spouse, whom you would normally include in your will.
- Understand what property you own.
You should review your will once a year. There are other occasions to review your will and these include:
- If your marital status changes.
- If the property you own changes significantly and you made specific gifts of that property.
- If you adopt or have additional children.
- If your child dies, leaving children.
- If you move to a different state.
- If any of your beneficiaries die.
- If the person you name as personal guardian for your minor children or manager for their property is no longer able to serve.
- If the person named as your personal representative (executor) is no longer able to serve.
- If you change your mind about the provisions in your prior will.
- If your witnesses move away, die or are no longer competent. (A new will is not necessary if you have made your Will Self-proving).
- Your will is valid until revoked. You can revoke a will by making a new will. Your will can also be revoked if it is destroyed.
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.
Read the law: Md. Code, General Provisions § 1-401
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) 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.
A will does not dispose of property which would pass to another by contract or by operation of law. Common examples are:
- Certain jointly-owned property, for example, a house, a car or bank accounts.
- Life insurance proceeds, which go automatically to the beneficiary you have named in the policy.
- A pension, where you have named someone as beneficiary.
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.
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.
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.
Your 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.