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.
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 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. This is called "executing a will." Estates and Trusts Article Title 4, Subtitle 100, governs the proper execution of a will in Maryland. A will:
If you cannot physically sign your will, you can direct someone else to sign for you. If you have to do this, you may want to make a note of it somewhere on the document and state the reason you, as the testator, could not sign the will.
Wills can also be witnessed in electronic form or remotely. These wills have additional requirements.
While you should have at least two disinterested witnesses, three disinterested witnesses are preferable. 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 physical or electronic presence, you will sign your will, and they will sign confirming that you are the one who signed your will.
NOTE: If a will was executed pursuant to Executive Order 20.04.10.01, which authorized remote witnessing and electronic signing of certain document, during the time that the Executive Order was in effect, then the will is considered to be in compliance with the statute.
If your will was executed out of the State of Maryland, then Maryland will consider the will as properly executed if the will is in writing, signed by the testator, and executed following Maryland law, the law of the testator’s domicile, or the law of the place where the testator is physically located at the time that the testator signs the 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. 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.
A will is one of the most important of all legal documents. 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.
A will can be changed at any time before death if a person is competent. The changes should not be made by alteration to the existing will but by a document called a "codicil". The codicil must be executed with the same formalities as a will.
You should review your will once a year. There are other occasions to review your will and these include:
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 they are 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 any 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 should consider leaving 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.
It is important to review your will periodically as major life events, like the death of a beneficiary, occur. If your will does include a deceased beneficiary, the gift is said to have "lapsed" or "failed." Maryland has enacted "anti-lapse" laws that allow inheritances to be transferred to a beneficiary’s distributes. For example, let's say Allen's will leaves real estate to his daughter Bridget, who has a son named Collin. If Bridget dies before Allen and Allen does not update his will, the real estate would pass to Collin.
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.
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.
You can also file your will with the Register of Wills in the county where you live. The will must be filed in a sealed envelope with your name, address and the last four digits of your social security number clearly legible on the cover. During your lifetime, the will you deposited in the Register of Wills' office can only be released to you or a person authorized by you in writing to receive the same. For more information, contact your local Register of Wills office.
Last Updated: Thu, 03/23/2023 - 12:23 pmThis site offers legal information, not legal advice. We make every effort to ensure the accuracy of the information and to clearly explain your options. However we do not provide legal advice - the application of the law to your individual circumstances. For legal advice, you should consult an attorney. The Maryland Thurgood Marshall State Law Library, a court-related agency of the Maryland Judiciary, sponsors this site. In the absence of file-specific attribution or copyright, the Maryland Thurgood Marshall State Law Library may hold the copyright to parts of this website. You are free to copy the information for your own use or for other non-commercial purposes with the following language “Source: Maryland's People’s Law Library – www.peoples-law.org. © Maryland Thurgood Marshall State Law Library, 2024.”
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