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“Testate” Probate Versus “Intestate” Probate
Asset distribution is a central task of both “testate” probate and “intestate” probate. A testate probate is available when the decedent dies executing a valid last will and testament. Conversely, an “intestate” (Without a Will) probate is the default when the decedent dies without a
valid last will and testament.
In most states, probate is required when someone dies, leaving an asset or assets not titled to a trust or for which there is no surviving joint owner or without a designated beneficiary. Consider such assets “orphaned,” with no living owner. Consequently, probate is required in the state where the decedent was last a resident to find a new owner for any orphaned assets left behind.
How does “testate” probate work?
First, a petition is filed with the local Register of Wills, which is found in Prince George’s County, Montgomery County, or any other Maryland County. The Register’s office reviews the last will and testament to ensure that it is the “last will” and testament and that it satisfies the particulars required under state law to be valid. Once the Register accepts the document as a will, the local Orphan’s Court issues a “Letter of Administration” to the personal representative appointed under the last will. This document empowers that person, also called the executor, to begin paying just debts, taxes, and expenses of the estate and, ultimately, to distribute and manage assets according to the terms of the last will.
Once filed with the probate court, the last will and testament and related documents become part of the public record. Anyone can request and view these documents, including creditors, salespeople, and even thieves. This is why vulnerable surviving spouses are contacted by third parties promoting their professional (and less than professional) services. Scammers also use court documents to identify potential victims.
Probate also requires the executor to notify people named in the last will and lawful heirs not named in the last will. Each of these parties is also provided a copy of the last will. Consequently, state probate statutes provide for some time for disgruntled heirs to challenge the last will.
What happens if a person does not have a will but they do have an estate?
Without a last will, “orphaned” assets still require probate before distribution. With no last will appointing an executor chosen by the decedent, State Law, called “Intestate Succession,” applies, and the Register of Wills or probate court appoints an estate administrator to
fulfill that function. This person may be a professional administrator who never knew the decedent or the family of the decedent. There is no requirement for the probate court to appoint a family member to serve as the trust administrator.
The estate administrator follows the state laws of intestate succession.
The administrator of an “intestate” estate has the same responsibilities as the executor in a “testate” estate. However, since the decedent did not create a last will to provide instructions regarding the estate distribution, the intestate estate passes according to state law. In most states, this one-size-fits-all distribution formula is based on the degree of kinship to the decedent. If a surviving spouse has no children, the spouse may inherit everything. If there is a surviving spouse and children, then the spouse and children share the inheritance.
Failing to have a last will leave the family open to many challenges.
Without a last will, the family has no control over how assets are distributed. A professional administrator will need to be paid for their services. If the estate is small, this will decrease any potential inheritance. A last will is also used to name guardians for minor children. Therefore, if there is no last will and no surviving spouse, minor children will be assigned a foster family until long-term placement can be
made.
What if you want to avoid probate over your assets completely? Consider creating a fully-funded revocable living trust with a trustee of your own choosing to manage the trust assets privately and confidentially for your beneficiaries. An experienced estate planning attorney can help you select the right estate plan for your unique circumstances now and keep it up to date since changes inevitably occur.
I know we are preaching to the choir to a great extent, as you have an estate plan with our firm. This is given with the hope that you may inspire other family members or friends to take the same prudent steps that lead to a well-thought-out end of life. If we can be of help, we would be glad to assist.
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