Maryland LGBTQ Estate Planning Attorney

1. You determine how your estate is distributed:
A Will is a legally binding document that allows you to direct who receives your assets upon your death. You may leave your assets and property, both real and personal, to anyone you choose, subject to certain statutory rights of a surviving spouse. Without a Will, the law determines how your assets are distributed. For example, when a person dies without a Will and has no spouse and no minor children, their estate is divided equally between the deceased person’s adult children and his/her surviving parents. This may not be how you want your estate to be distributed among your heirs.

2. You decide who will handle your estate:
Probating and settling an estate can be a very complex task. You want someone who is honest, responsible and well organized to handle your estate matters. In your Will, you name a Personal Representative, or Executor, to probate your estate and to ensure that your assets are distributed according to your wishes as stated in your Will. Your Personal Representative is responsible for opening the estate, filing an inventory of the estate assets, paying debts or claims of the estate, managing or selling real property in the estate, filing tax returns on behalf of the estate, and making the final distributions from the estate, just to name a few. If you do not have a Will, the Court will appoint a person to handle your estate. That person may not be the person that you would have chosen and could, in fact, be one of your creditors.

3. You decide who will care for your minor children:
If you have minor children under the age of eighteen (18), you will want to name a guardian and trustee or custodian for your children. The guardian is the person with whom your child will live and who will care for your child on a day to day basis. The trustee or custodian is the person who will hold and manage the child’s inheritance until such time as the child reaches an appropriate age, determined by you and stated in your Will. The guardian and trustee or custodian may be the same person but does not have to be. In certain instances, the person who will best care for your child may not be the best person to manage their money.

4. You can set up a trust for minor children or special needs children:
If you have children under the age of 18 or a special needs child, you may want to consider including a trust. A special needs child who is receiving governmental benefits may lose those benefits if they receive an inheritance directly from your estate. Additionally, a minor child would receive their share of the estate upon reaching the age of 18 (the age of majority in Maryland). A young adult may not be responsible for handling and managing large sums of money and you may want to spread the distribution out over several years or throughout the child’s lifetime. You can appoint someone, called a Trustee, who will hold and manage the child’s money for them. You can instruct that the funds be used strictly for certain purposes, such as college or the purchase of a house.

5. You can disinherit family members:
Unfortunately, there are instances when you do not want certain heirs to inherit your property or funds. If an heir is subject to judgments, has filed for bankruptcy or is receiving government benefits, you may choose not to include that person in your will. There may be an estranged child that you do not want to receive part of your estate. In your Will, you have the right to leave your estate to whomever you choose and might include provisions to avoid having your Will challenged by an heir.

6. You can avoid arguments and hostility among family members:
When you have a Will, you make your intentions clear. You state who you want to handle your estate, how the funds are to be distributed and when and on what conditions those distributions take place. Without a Will, there can be arguments among family members as to who gets what and who should be responsible for opening and handling the estate. A Will can avoid many arguments and misunderstandings among family members by clearly stating your wishes.

7. To give you peace of mind:
You will have greater peace of mind knowing that your family is taken care of when you are no longer here to care for them. By having your estate plan in place, you take away some of the stress placed on your family, who will already be going through an extremely emotional and difficult time.

In order to contest or challenge a provision in a Will, the person contesting or objecting must have “standing.” This means that either they are named as a beneficiary in the Will or they would stand to inherit from the estate if the Will were declared invalid or if the decedent died intestate (without a Will).

If a person has standing, then they must have a basis upon which to object to or contest the Will. One common reason for contesting a Will is if the testator (the person who wrote the Will) was incompetent at the time that the Will was executed. If the decedent did not understand what they were signing or had been declared incompetent prior to signing the Will, then the Will may be voided in its entirety or in part. If the Will is declared null and void, then the most recently executed Will controls. If there is no previous Will, then the estate is distributed as if there is no Will, in accordance with the laws of intestacy in Maryland.

If a person has been diagnosed with advanced dementia or Alzheimer’s disease, more than likely they were not competent to sign a legal document, such as a Will, and the Will can be declared void. Another ground for challenging a Will is if the testator was unduly influenced or persuaded to write their Will in a certain way. Often elderly people are taken advantage of by neighbors or relatives who are manipulating the testator at a time when they are vulnerable and easily influenced. This ground is often difficult to prove.

A second common basis for contesting a Will is when a spouse is disinherited. In Maryland, a surviving spouse is entitled to receive a portion of the estate and has a right to contest or caveat the Will to request their statutory share. A Will contest can be very expensive. Often times the litigation can use up the funds that would have otherwise been distributed from the estate, as the legal fees paid to the attorney representing the estate are paid from the estate assets. When a Will includes a special provision, called a “no contest clause,” if a person named in the Will challenges the Will and is unsuccessful in overturning the Will, they inherit nothing. A Will contest can bankrupt an estate, so you should consult an experienced estate planning attorney to review all of your circumstances and prepare an estate plan best suited for your needs to avoid Will contests.

Although not everyone needs a trust, a trust is a very useful estate planning tool and should be considered. Just a few of the benefits of a trust are:

• PRIVACY: A trust is private and confidential. Unlike a Will, a trust is not filed with the court. When an estate is opened, your will gets filed with the court and becomes public record. Additionally, your entire estate and assets are inventoried and reported to the court. The public has access to your estate documents, the value of the estate and how it was distributed. A trust, on the other hand, is completely private. It is not a public document and only the trustee and the beneficiaries are entitled to information about the trust.
• FLEXIBLE: A trust is a living document, especially a revocable trust. You, as the trustee, may modify and change your trust as your circumstances change. You have the right to amend or terminate a revocable trust at any time.
• CONTROL: A trust provides greater control of your assets after death. Unlike a will, which has certain limitations, you can control your assets even after death with a properly prepared trust. A trust gives you the ability to direct how your assets are used and to whom they are distributed for as long as you direct. You can put conditions on distributions and you can direct that property or money held in trust only be used in certain ways and for certain purposes.
• AVOIDS PROBATE: Having a trust avoids probate, as it is not filed with the court and, if all of your assets are held in trust, there would be no estate to probate. Nevertheless, you still need a Will to ensure that any other property held in your name is added to the trust and distributed according to the trust documents. This is commonly referred to as a “Pour Over Will.”
• IMMEDIATE ACCESS TO FUNDS: When a person dies and their assets are held in a trust, the trustee (or successor trustee if the decedent was the trustee) may make immediate distribution of the trust assets in accordance with the trust document. If assets are passing through a Will and going through probate in Maryland, the estate may not make distribution for at least six (6) months and, only then, upon approval of the court.

CAUTION: A trust is only effective if it is property funded, which means that all property must be transferred to the trust.

As part of our services, when preparing a trust we assist with the transfer of all assets to the trust to ensure that it is property funded in order to accomplish the goals and purposes of the trust.

You may say, “I trust my doctor, so why do I need one?”

A Healthcare Power of Attorney is a form that designates an agent to make health care decisions for you in the event you are unable to make your own decisions. Without an agent, a doctor would most likely turn to whichever family member is present and ask for consent for the procedure they recommend. If that family member does not know your wishes then they could deny treatment that you would have wanted or consent to treatment that you would not have wanted.

Living wills, also called Advanced Directives, determine what, if any, life sustaining medical procedures you wish to have in three situations:

1. When your death from a terminal condition is imminent, despite the application of life-sustaining procedures;
2. You are in a condition of permanent unconsciousness, called a persistent vegetative state; and
3. You have an end-stage condition, which is defined as: a.) a condition that is advanced, progressive, and irreversible; b.) which has caused severe and permanent deteriorationas evidenced by both incompetency and complete physical dependency (unable to perform activities of daily living independently); and c.) to a reasonable degree of medical certainty, treatment of the irreversible condition would be medically ineffective. Examples of an end-stage condition could be advanced Alzheimer’s disease or rend-stage renal disease.

A prime example of what can happen when a person does not have a Living Will/Advanced Directive is the case of Terry Shiavo, a woman in an irreversible persistent vegetative state. Her husband (and legal guardian) and her parents fought in court for over 15 years regarding her end-of-life care and what she would have wanted. Had she had a Living Will/Advanced Directive, more than likely, there would have been no legal proceedings.

If you do not have a Living Will/Advanced Directive, then your healthcare provider will provide you with medical care that THEY believe is in your best interest, even if it is not something you would have chosen. A Living Will/Advanced Directive is effective even when photocopied and is portable, meaning that you should have it filed with all of your doctors, hospitals, and medical providers who will render you treatment. You should carry this document with you in your vehicle and on vacation, in the event of an emergency.

Under Maryland law, a personal representative is responsible for the following:

1. Probate the Will, and any codicils, with the Register of Wills, obtaining a federal tax identification number to open an estate account and hiring the appropriate professionals to assist him/her.
2. Ascertaining and appraise all assets of the estate.
3. Paying the debts of the estate.
4. Arranging for safekeeping of personal property.
5. Managing assets, collecting life insurance proceeds and retirement distributions.
6. Filing tax returns and paying the required income inheritance and/or estate taxes.
7. Filing the necessary pleadings with the Register of Wills, including Petition to open the estate, Inventory and Administration Accounts.
8. Distribute assets of the estate to the appropriate beneficiaries, account for all estate assets and expenses and close out the estate.

A personal representative is entitled to receive compensation, or commissions, for the work that they perform on behalf of the estate. The maximum allowable commissions in Maryland is 9% of the first $20,000.00 plus 3.6% of the assets in excess of $20,000.00. A personal representative has the right to waive commissions. If the personal representative hires an attorney to assist him/her with the handling of the estate, the attorney is paid from the allowable commissions. A personal representative is a fiduciary and has a fiduciary duty to the estate. This means he/she has an obligation to do what is best for the estate and to protect the assets for distribution to the heirs. The personal representative is prohibited from self-dealing or commingling estate assets with his personal assets. If a personal representative has breached his fiduciary duty to the estate, he can be held personally liable to the estate or the beneficiaries for any losses.

It is important that you choose a responsible and trustworthy person to act as your personal representative or executor, as improper handling of the estate assets can lead to expensive probate litigation and can destroy family relationships in the process.