Do I Need a Last Will and Testament?
Statistics show that many individuals never create a last will and testament. While not everyone needs to have a will, there is almost always a benefit for an individual to have created a will to ensure that their families are protected and that their assets are distributed in accordance with their wishes. The importance of having a last will and testament is true in Maryland, Washington DC, and Virginia.
Without a will in Maryland, Washington DC, and Virginia, a person’s probate estate (a person’s assets that do not pass automatically to another, such as vehicles, single owner bank accounts, personal property, and single owner real property) will end up passing through intestate succession.
Intestate (One who Dies Without a Will) Succession Rules
Most states have rules or laws in place for when a person dies without a last will and testament, i.e., dying intestate. Intestate succession rules are different for each state, but, by way of example, in Maryland, a non-married, non-parent individual’s assets will first go to their parents (if they are living), then to siblings (if the parents are not alive). In Maryland, the assets of a married person with no children will be split in half in the following way: fifty percent will go to the decedent’s spouse and the other fifty percent will go to the person’s parents. If the married person has children, their assets will be split between the spouse and the children. Bottom line: If you die without a will, you will have no control over who handles the disbursement of the assets and no control over who the assets go to.
Control of Assets Through a Last Will and Testament or Trusts
In Maryland, Virginia, and Washington DC, when an individual creates a will, the individual has the opportunity to designate to whom they want their assets to be given to. The individual can make specific bequest to leave certain property to specific individuals. The individual can also designate general amounts of money to groups of people. Through a will, an individual ensures that their intent for their assets is complied with and that they protect those they wish to protect by providing for the after their passing.
In addition, if the decedent has young children, the individual has the opportunity in Maryland, Virginia, and Washington DC, to set up a trust within their will that will help to ensure that any money left to the minor children (or children whom they feel should not have significant amounts of money) will be protected. When a trust is drafted properly within the will, an individual can designate someone to oversee the funds for the child(ren). The decedent can direct how those funds are to be used and how much of the funds can be used for certain matters. Through a trust, an individual can designate at which age or ages the child(ren) can receive distributions and can help to protect the funds from any creditors of the child. These trust are very useful for parents who feel their child is too young to handle large amounts of funds or for a parent who feels their child cannot properly manage money. For the trust, decedent can choose an individual with whom they are comfortable and whom they trust to manage the beneficiary’s funds. Through a trust, the decedent can feel comfortable that the beneficiary will be taken care of and the monies left to the will be protected.
Establishing a Personal Representative and Guardians
In Maryland, Virginia, and Washington DC, a will can also provide the opportunity for an individual to determine who the personal representative will be. The personal representative is the individual who will handle all of the administration of the estate and make the distributions. If the decedent does not choose a personal representative then one is usually selected by the court system based upon the statute of the state where the decedent was a resident.
For individuals with young children, those under the age of eighteen (18), a will is also the opportunity to designate a guardian — someone who will care for the child(ren) if the child’s parents have passed. In this way, the parents can designate who will take care of their children and raise the child(ren) in a manner similar to the parents. In situations where a guardian is not designated, the children can become wards of the state and a guardian will be chosen by the court system, if someone makes that request. However, this can be a lengthy process and the child(ren) may end up living in a foster home until someone is appointed or chosen by the courts.
There are many provisions in the state statutes, including Maryland, Virginia, and Washington, DC, which provide for what happens to someone’s assets if they die without a last will and testament. However, the state statutes may not achieve the goals of the decedent.
The only way for the decedent to ensure that their assets are distributed in a manner that they want is to draft and sign a legal last will and testament. A properly-drafted will and trust documents can ensure your spouse, children, and family as a whole are protected.
An experienced trusts and estates lawyer can advise you on all aspects of estate planning, such as drafting a last will and testament, drafting trusts, explaining how to structure the estate to minimize the impact of estate taxes and deciding whom to chose as your estate’s personal representative. The Maryland, Virginia, and Washington DC tax planning and estate planning attorneys at Longman & Van Grack have years of experience dealing with these difficult, important, and personal decisions. If you would like to discuss the best ways to structure your estate for the benefit of your spouse or future generations, contact us at (301) 291-5027 for a consultation in our offices in Maryland (Bethesda & Rockville), Northern Virginia, and Washington DC.
