The Unintended Consequences

As most people know, a properly drafted will directs the disposition of a person’s property after their death in accordance with the person’s wishes. What most people don’t know, and is a frequent area of inquiry, is how their probate assets (assets belonging solely to the individual at the time of death) will be divided in the event they do not have a will.

State law determines how your probate assets will be distributed if you die without a will. This is sometimes referred to as the law of intestate succession. In Maryland, how property is distributed in the absence of a will is largely determined by which members of the family survive you. Accordingly, the following rules apply if you are survived by:

1. Spouse and Minor (under 18) Children
   Your spouse receives one-half and your children share the remaining half.
2. Spouse and Adult Children
   Your spouse receives $15,000 plus one-half of the remaining estate. Your children divide the balance (the interest of a child dying before you passes to issue of that child).
3. Children Only
   Your children (not including step-children) divide the entire estate (the interest of a child dying before you passes to issue of that child).
4. Spouse and Parents
   Your spouse receives $15,000 plus one-half of the remaining estate. Both parents divide the balance (or one parent receives the balance in the event the other is deceased).
5. Spouse Only
   Spouse receives entire estate.
6. Parents Only
   Both parents divide the entire estate or surviving parent takes all.
7. Brothers and Sisters Only
   Brothers and sisters divide the estate equally (the share of a deceased brother or sister goes to their issue – your nieces and nephews).
8. Grandparents Only
   Grandparents divide entire estate or, if deceased, to their issue. (This can be complicated and the Estates and Trusts Article of the Maryland Code contained a more detailed explanation.)
9. Great-Grandparents Only
   Great-grandparents divide the estate, or if deceased, to their issue. (Again, a more detailed explanation can be found in the Estates and Trusts Article of the Maryland Code.)
10. Step-children Only
    If there are no heirs listed above.
11. No Living Heirs or Step-Children
    If you were the recipient of long-term care benefits under the Maryland Medical Assistance Program at the time of death the net estate is paid to the Department of Health and Mental Hygiene. Otherwise the net estate is paid to the Board of Education.

The above explanation of how your estate is divided provides ample reason to consider preparing a will. In addition, a will provides you with the opportunity, among other things, to designate who will handle the distribution of your estate (your personal representative) as well as name the person who will serve as guardian of any minor children and the timing of any distribution to them. A properly drafted will can also substantially reduce federal and state estate taxes in may circumstances.