Wills, Intestacy, and Maryland Probate
Many people are surprised to learn that a loved one’s estate must go through probate even though there is a valid will. The fact is, if a decedent has any assets in his or her own name at the time of death, yes, the estate will likely need to go through probate.
While many assets may pass by beneficiary designation (IRAs, 401(k)s, other investment accounts), certain assets, including cars and houses, would likely need to go through probate before passing to heirs.
By operation of law, having a will ensures that your loved one’s assets will go through the Maryland probate process. This is why people who want to ensure their estates avoid probate often have an attorney design a trust (or trusts) to hold their assets.
Of course, having a will at least allows a person to specify “who gets what” upon his or her passing. Without a will, this is no longer the case.
What Happens if the Decedent Didn’t Have a Will?
When a person passes away without a will, he or she is said to have died “intestate.” In this situation, assets will be distributed according to what is known as intestate succession, which involves ranking family members according to their right to inherit property. A surviving spouse typically receives at least half of the estate while the couple’s surviving children receive the rest. Family members who are further down the intestate succession “list” will generally not receive anything if those ahead of them are still alive. Intestate succession does not take into account the decedent’s wishes regarding “who gets what.” Assets are simply distributed according to state law.