Last Will and Testament
For some people, a Last Will and Testament may be the most important legal document of they will ever sign. Commonly referred to as simply a “Will,” a Last Will and Testament is a document that names the person(s) who will be in charge of your estate and who will distribute your assets when you are gone. Additionally, in a will, a parent of minor children can name a guardian for their minors in the event of their death. With a properly written will, you can be confident that your property to be distributed in accordance with your wishes after you have passed.
Nancy L. Miller and Mark C. Miller have drafted thousands of wills, each one of them custom written. We do not use computer programs to write wills for our clients. We listen carefully to our clients tell us what they want, then write them a will that suits them and their needs. After our clients review what we have written, they come in to have their will properly executed in our office. Having written thousands of wills over 50+ combined years of practicing law, not once has a will written by Nancy L. Miller or Mark C. Miller ever been challenged in court or overturned.
Will Drafting in Maryland
While every Last Will and Testament we draft for our clients is different from the next, most of our wills have similar components. Below are some of the most common provisions that we include in our clients’ wills:
- Name Your Personal Representative. The Personal Representative, sometimes referred to as the Executor, is the person who will be in charge of managing your estate in accordance with your wishes after you are gone. Generally speaking, the Personal Representative is responsible for opening the estate, identifying and collecting your assets, paying any valid debts, expenses and taxes, and distributing the remaining property in the estate to the proper beneficiaries. In order to have control over the person chosen for this responsibility, you need to name this person(s) in your Last Will and Testament. If you do not, the court will select a representative for you. While this will very likely be your spouse, child or other close relative, it will not necessarily be the best person in your life for this important job. For more on how to choose a Personal Representative, click here.
- Identify Guardian for Minor Children. In Maryland, a guardian is a person to care for the needs of a minor in place of the child’s parents. In the unfortunate event that both of a child’s parents pass while the child is still a minor, the court will hold a proceeding for the appointment of a guardian for the child. In consideration of the best interest of the child, Maryland courts will look at any Last Will and Testament left by the parents for a provision nominating a specific person to serve as guardian. Thus, in the unfortunate event that you leave behind minor children, it is imperative that you identify the person in your life best suited to care for your children in your absence. Read more
- Specific Bequests. A specific bequest is the gift of a specific, easily identified asset to a specific person. For example, “To my daughter, Debra S. Jackson, I do hereby give, devise and bequeath my real property located at 1234 Main Street, Upper Marlboro, Maryland 20772.” While specific bequests may seem rather straightforward, they are not always advisable. Ademption is the legal term used when the decedent no longer owns the specific property that they gave away in their will. The property may have been lost, sold, destroyed or exist in a different form than described in the will. If any that is the case, the heir to whom you have left the specific gift will be out of luck.
- General Bequests. A general bequest is the gift of an amount of money to a person to be paid out of the general assets of the estate. For example, “To my sister, Gloria Robinson, I do hereby give, devise and bequeath, the sum of Fifteen Thousand Dollars ($15,000.00), if she survives me.”
- Residuary Bequests. A residuary bequest is a gift of all or a portion of the assets that remain in your estate after the costs, your debts and bequests are paid. If the “residue” is to be split among multiple heirs, it will typically given away in fractions or percentage amounts. For example, if you wished to leave half of the remaining balance to your each of your two children, your will may include a provision that read as follows: “All of the rest and residue of my estate, consisting of real or personal property of any kind whatsoever, whether in possession, expectancy or remainder, including any property over which I may have any power of appointment, wherever situated, I do hereby give, devise and bequeath to my children, William Smith and Melissa Smith, in equal shares, to share and share alike.”
Validly Executed Will
In order for your will to be validly executed in Maryland, there are several legal requirements, which are as follows:
- Testamentary Capacity. The Testator must be at least 18 year old and must have sufficient mental capacity at the time the will is made. While Maryland Estates and Trusts Article § 4-101 does not specific exactly what constitutes legal competency, it must appear that at the time of the will is made that the Testator has an understanding of the terms of the will, a recollection of the property that they are disposing of in the will and the persons to whom he/she means to give it, and is otherwise acting of his/her free will, without undue influence.
- In Writing. Under Maryland law, a will must be in writing to be valid – video and audio recordings cannot be accepted as a valid will in Maryland courts.
- Signed by Testator. To be valid, the will must be signed by the Testator.
- Witnesses. Maryland law requires that the Testator sign his/her will (or acknowledged the signature already made) in the presence of two (2) or more witnesses. While only two (2) witnesses are required, we always have three (3) witnesses at each of our will signings.
Frequently Asked Questions
What if I die without a will?
In Maryland, if you were to die without a will, the assets of your estate will be distributed according to the laws of intestacy. Under Title 3 of the Maryland Estates and Trusts Annotated Code, distribution of the assets in the decedent’s estate is based on the relationship of the surviving heirs to the decedent. For a complete list of who would inherit if you were to die without a will, see here.
Can a will be changed?
Since a will is not effective until death, the Testator may change and/or revoke his/her will any time before their death, so long as they remain mentally competent. If the Testator is not mentally competent, they cannot validly make changes to their will.
Where is the best place to keep my will?
Although it is not required that you do so, it is a good idea to file your will with the Register of Wills in the county where you reside. Your original will is sealed in an envelope and will not be unsealed until your death. The Register of Wills charges a very nominal fee of $5.00. If you elect not to file your will with the Register of Wills, you should keep the original will in a safe place so that the person you have chosen to be your personal representative can find it after your death.
Does a will need to be notarized in Maryland?
No. In Maryland, you do not need to notarize your will to make it legally valid. The will does, however, need to be properly witnessed and must contain an attestation clause, as outlined above.
Should I have a will?
Yes! Everyone adult who owns property or who has assets of value should have a Will. The primary reason you should have a will is that a will permits you to dispose of your property as you choose, with limited exceptions. Therefore, a properly executed will is essential in order for you to ensure that your loved ones are taken care of in the manner you intend after your death.