What is Probate?

Probate is the legal process by which a deceased person’s property, their “Estate” is administered. It begins by opening an estate in the jurisdiction where the deceased person was a resident at the time of their death.  When the administration is finished, and the assets of the deceased have all been properly accounted for and the court has ordered that the final estate accountings are approved, the estate is distributed to the deceased’s beneficiaries and/or heirs. The property will be distributed according to the wishes of the deceased person if that person had a valid will, otherwise, the deceased person’s property will be distributed in accordance with the laws of the jurisdiction where the deceased person lived at the time of their death.  A person’s “Estate” is all of the property that the deceased owned at the time of their death in their name alone.

The Probate process requires that the Estate be administered by a person appointed as the Personal Representative of the Estate. (The Personal Representative is sometimes referred to as the Executor of the Estate.) If the deceased had a will, and in the will, they named a person to serve as the Personal Representative, then most likely, the wishes of the deceased will be honored and the person named in the Will is appointed to serve as the Personal Representative of the Estate. Otherwise, the Register of Wills or the Orphans Court will appoint a Personal Representative to settle the estate, usually a close relative.

The Probate process can be confusing; there are numerous pleadings to be filed and deadlines to be met. The Probate process is made much easier with the assistance of an attorney experienced in wills, estates and the probate process. Nancy L. Miller and Mark C. Miller represent estates and the Personal Representatives of estates and heirs and beneficiaries in counties throughout Maryland, but mainly in Prince George’s County, Charles County, Calvert County, St. Mary’s County, Montgomery County, and Anne Arundel County. Nancy L. Miller also represents estates, Personal Representatives, heirs and beneficiaries in Washington, D.C.

In addition, Nancy L. Miller and Mark C. Miller represent parties who wish to contest the will of a deceased, believing that the Will as presented to the court for probate did not represent the true wishes of the deceased when it was written, or that there was a later Will written.   Also, a person may believe that the person appointed as the Personal Representative of an estate is not acting in the best interest of the estate or of the beneficiaries or heirs to the estate, a person may believe that the person appointed as the Personal Representative of an estate is not doing the job, or that there are financial or other irregularities, and they seek to have the Personal Representative removed and someone else appointed. A dispute between heirs or beneficiaries and the Personal Representative often results in litigation.

It is important to have attorneys represent you who are not only able to assist in the probate process, but who are experienced litigation attorneys.

Nancy L. Miller and Mark C. Miller both are experienced litigation attorneys.

Living Trusts

We get a lot of questions about living trusts. They are often promoted as a means to avoid having to go through probate. There are numerous companies and people, many of whom are not attorneys, selling living trusts.  These are often sold as part of “financial planning” packages. They are often sold through mass marketing postcards or advertisements. They are even sold on television home shopping networks, like pots and pans!

There are people and companies that hold “estate planning” seminars and make a lot of promises about what a living trust can do for you. They offer you a free dinner or “free helpful estate planning” advice and after the dinner or the seminar promise to give you 10% off the price “if you sign up today” to buy their services.

One of the most common claims that these sales people make is that having a living trust will reduce your taxes. In fact, living trusts do not save taxes. Not income tax nor estate nor inheritance tax. These sales people usually claim that living trusts save you and your heirs and family time and money. It is the experience of this office that such a statement is not true. They claim that bills that were incurred prior to your death will not have to be paid. That is also not true.

The fact is there is not enough benefit to most people to justify the trouble and expense of having a living trust. In most cases, the trouble one has to go to set one up and to keep it functioning properly during a person’s lifetime is simply not worth it.

Generally, in a living trust, a person must deed or transfer all of their assets that do not have a beneficiary to the living trust. That usually means that a person’s bank accounts, stocks, investments, vehicles, real estate, etc. will be re-titled to be owned in the name of the trust.  If any of a person’s assets that do not have a beneficiary have not been transferred to the trust at the time of that person’s death, those assets will have to go through probate. Just what the living trust was supposed to avoid.

Without any supervision of the Trustee’s activities after the death of the person setting up the trust, there is always the possibility that the trustee of the living trust may not do the right thing. In probate, the person named to handle the deceased’s affairs will be supervised and bonded to avoid  improprieties or mishandling of the assets of the deceased.

And, while a living trust is often promoted as a means by which a person can have someone else manage his or her assets while living, having a durable power of attorney is usually much less expensive and much less trouble and generally serves the same purpose.

In many cases, the trouble and expense involved in setting up a living trust far exceeds any savings to you or to your heirs and beneficiaries in avoiding probate.

Nancy L. Miller and Mark C. Miller will be glad to discuss planning your estate with you. We will help you through the probate process with any estate at the lowest possible cost with the highest level of service.