When a person dies, what happens next depends on whether the deceased person (decedent):
- had any a Will, with or without a trust,
- who the living relatives are, and their relationship to the decedent.
If the decedent did not have a Will, they are said to have died “intestate”. The decedent’s State has laws for overseeing how and to whom the decedent’s assets (money and property) are to be distributed. If the decedent died owning accounts and property in their sole name and had a Will, the assets Will be distributed according to the Will’s instructions.
If you have a Will, it should be deposited for safekeeping with the Register of Wills. Otherwise, someone who finds your Will and among your papers and doesn’t like your Will’s provisions could take advantage of the situation by destroying the Will.
While there is a legal obligation that anyone possessing the Will of a decedent must file it with the probate court, sometimes that does not happen (c.f. every legal drama TV series since Perry Mason in the 1960s).
Probate is a formal legal process of:
- proving that a Will is valid (if the person had a Will)
- appointing someone to carry out the deceased person’s wishes (known as a personal representative or executor), and
- supervising the distribution of the deceased person’s money and property.
While probate rules can vary by state, there are some important rules that you should be aware of should you need to wind up a loved one’s affairs.
Deadlines
Deadlines are important rules that must be followed during the probate process. Failing to meet these deadlines could get you in trouble with the court. That said, probate is an administrative (bureaucratic) process and they are aware that they are (usually) dealing with individuals and not attorneys so the timelines are generous and sometimes even glacial.
When And If To File The Will
Maryland places a legal obligation on those in possession of a decedent’s Will to file it with the Register of Wills where the decedent last resided. If they don’t, they can be found liable for any damages that occurred.
Once the Will is filed, the court Will generally begin by reviewing the Will to ensure that it was properly made and signed. If the court is satisfied, it Will appoint the personal representative.
Collecting And Securing Assets (“Marshaling” the Assets)
The personal representative must locate and secure the deceased person’s money and property and create an inventory of all items. Deadlines for filing an inventory with the court are calculated from the date you were appointed as personal representative, and Maryland’s deadline is 90 days for the filing of the inventory.
Appraisal Of Assets
The inventory will include a valuation of the items as of the date of death. An independent appraiser is used, however, the personal representative is authorized in Maryland to appraise:
1. Corporate stocks listed on a national or regional exchange, or over-the-counter securities
2. Real property;
3. Debts owed to the decedent, including bonds and notes;
4. Bank accounts, building, savings and loan association shares, and money;
During this period, the personal representative may also need to establish a tax identification number for the estate and open an estate checking account for depositing estate funds.
Notifying Creditors
The personal representative must notify known creditors and attempt to find unknown creditors. Generally, at the direction of the probate court and with the assistance of an experienced estate administration attorney, the personal representative is required to publish notice of the deceased person’s death in appropriate newspapers to run for a specified length of time. (If using an attorney, the personal representative is well advised not to make any payments to unsecured creditors until having consulted with the attorney.) This notice is typically published in the local newspaper where the person died. The purpose of this notice is to allow creditors, both known and unknown, time to make a claim to the estate for any debt owed. The personal representative must then determine the validity and priority of all creditor claims received and pay those claims, as appropriate.