What is Probate?

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What is Probate?

A common concern of someone planning his or her estate is a desire to “avoid probate”, although that someone may not be quite sure why they have that concern.  The idea of “probate” can seem scary, but that often is because it is a word that is just not used much these days.  It is an old English word from the 1400s.  Asking different people “what is probate?” will result in different answers, but probate in Maryland and Washington, D.C. is essentially the Court process of proving the validity of a Will and administering certain assets of a person after the person’s death.

In Maryland and Washington, D.C., probate starts in the Register of Wills.  Each of the 23 Maryland counties and Baltimore City and Washington, D.C. has its own Register of Wills.  The name “Register of Wills” is a bit of a misnomer because the Register of Wills also handles estates of people who pass away without a Will.

Upon a person’s death, everything that person owns is either a probate asset or a non-probate asset.  Essentially, probate assets are anything of which that person is the last living owner and for which that person has not designated a direct (i.e. payable-on-death/transfer-on-death) beneficiary (such as is perhaps most often done with life insurance and retirement accounts).  Typical examples of probate assets are real estate, bank accounts, stocks and bonds.  Normally, having a living joint owner or direct beneficiary makes an asset non-probate.

For a lot of people, probate is not overly-burdensome.  For some people, the Court due dates and other laws can even be helpful tools to make sure the process of completing a deceased loved one’s affairs stays on track and concludes timely.  The probate Court’s oversight can also be helpful to ensure that your directions are honored when you pass away.  Also, in Maryland, many estates qualify for Modified Administration, which is a simplified probate process generally available when your immediate family are your beneficiaries.

The three reasons people most often give why they dislike probate are: (1) the process is public record once an estate is opened; (2) the process can take longer than non-probate ways to distribute assets at a person’s death, such as trusts or direct pay-on-death beneficiary designations; and (3) if the person owns assets, such as land or a rental property, in another state or country, then that other state or country serves as a secondary or ancillary estate.

First, regarding the public nature of probate, it is only public in the same way most Court records are public record, which are viewed by few people, such as your loved ones.  Still, we understand that privacy can be a very important concern and if it is for you, then using a non-probate way to transfer your assets may be appropriate. A lawyer can also help you with such transfers such as placing your assets into a trust that you or your Trustee controls.

Second, regarding the length of probate, it often takes the same, or close to the same, length of time as the administration of a trust, particularly when there is a home or other property that need to be sold.

Third, regarding opening a secondary or ancillary estate if property in another state or country outside of where the deceased person lives, the Register of Wills or probate Court where the primary estate is located must prepare a triple seal/“exemplified” copy of documents in its file to be sent to the Register of Wills or probate Court in that other state or country.

We welcome those who have questions regarding their loved ones’ probate/non-probate administration, as well as those planning their own estates and deciding whether they want to avoid probate entirely, partially or not at all, to contact our firm and discuss how we can help. Please give us a call at 301-464-7448.

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