Wills

At the Law Office of JANE FRANKEL SIMS, we draft wills that are tailored to each client’s specific needs, such as estate tax minimization or appointment of guardians of minor children. In addition, we supervise the execution of wills to ensure that the proper formalities have been respected. We also offer our clients the option of storing their original wills in our fire-proof will vault for no additional cost.

What is a will?
A will is a written document that directs the disposition of a person’s property after death.

Does a will dispose of all assets?
A will is effective only with regard to certain types of assets, often called “probate” assets. Generally, these are assets that belong solely to you or are titled only in your name.

A will does not affect the disposition of property that is titled in the names of two or more persons as “joint owners with right of survivorship.” Property titled in this manner will automatically belong to the surviving joint owner(s) upon the death of the first joint owner, regardless of the provisions of the decedent’s will. Similarly, property owned by you and your spouse as “tenants by the entirety” will immediately become the sole property of the surviving spouse when the other spouse dies. However, your interest in property that you own with someone else as “tenants in common” is a probate asset, which will be disposed of by your will when you die.

As a general rule, a will does not dispose of insurance proceeds. These proceeds will be paid to the beneficiary designated with the insurance company. Retirement accounts and annuities are not affected by a will unless no beneficiary is designated, which can have adverse income tax consequences.

Who can make a will?
Anyone who is at least 18 years old and of sound mind can make a will.

Are there formal requirements for a valid will?
In Maryland, you must sign your will in the presence of at least two independent witnesses. Each witness must be at least 18 years old. A will need not be notarized.

Is a will that has been executed in another state valid in Maryland?
A will that is valid in the state where it was executed will be valid in Maryland. However, if your will was prepared in another state, it should be reviewed to ensure that the language used in the other state will be given the same interpretation under Maryland law. In addition, estate tax laws and probate rules vary from state to state; therefore, your will should reflect the laws that would apply to your estate when you die. If you move to another state, your Maryland will should be reviewed by a lawyer in the new state in order to determine if any changes are necessary or desirable under that state’s laws.

Are there any restrictions on how a will can dispose of property?
A surviving spouse has the right to “elect against the will.” This means that regardless of the provisions of the deceased spouse’s will, the surviving spouse may claim up to one-half of the probate assets if the deceased spouse had no descendants, or one-third of the probate assets if there are descendants. This prevents a spouse from being disinherited. Children have no similar rights in Maryland and may be disinherited.

Can a will be changed?
If you are of sound mind, you can change your will at any time by signing a document called a “codicil,” which is an amendment to your will, or by signing a new will. Both codicils and new wills must be executed with the same formal requirements as the original will. You should never attempt to change your will by writing on it.

When should a will be changed?
You should review your will every 3 to 5 years. A significant change in personal or financial circumstances may mean that your will should be revised or replaced. For example, births, deaths or a change in marital status warrants a review of your will. Changes in federal or state tax laws may necessitate revisions to your will as well.

How is a will affected by a subsequent marriage or divorce?
In Maryland, a will is not affected simply by a subsequent marriage. But if a child born following that marriage survives you, your pre-marriage will is revoked. A divorce automatically revokes the provisions of the will that pertain to your former spouse, but does not affect other provisions of the will. Thus, provisions benefiting family members of your former spouse will remain in force. A divorce does not automatically revoke beneficiary designations that name a former spouse as beneficiary. These should be updated after a divorce.

What if I die without a will?
If you die without a will, state law will determine how your probate assets will be distributed. In Maryland, if you are survived by a spouse and at least one minor child (under the age of 18), your spouse will receive only one-half of the probate assets, and your children will receive the other one-half (a deceased child’s share will pass on to his or her children).

If you are married and all of your surviving children are over the age of 18, or if you have no descendants and a parent survives you, your spouse will receive the first $15,000 of the probate assets, plus one-half of the balance of those assets. The remaining probate assets will pass to your surviving descendants or to your parents, if you have no descendants.

Your spouse will receive the entire probate estate only if you have no descendants or parents who survive you. If you are not survived by a spouse, your descendants will receive all probate assets. Your siblings or more remote relatives will each receive a portion of your probate estate if you are not survived by a spouse, descendants or parents.

Under Maryland law, probate assets will pass to the county board of education only if there are no surviving blood relatives.

Can a will provide for anatomical gifts?
A will may include specific directions for the disposition of your body and for your funeral. Because your will may not be reviewed immediately after death, such directions should be communicated to family members so they are aware of your wishes at the time of your death. If you wish to donate your body for research or transplantation, you should also notify family members and carry an organ donor card or note your wishes on your Maryland driver’s license. Maryland also provides a one-page anatomical gift form concerning organ donation.

When are contents of a will made known to relatives?
You do not have to reveal the contents of your will to anyone while you are alive. After your death, the person who has custody of the will may disclose its contents to family members. At that time, the original will must be filed with the appropriate Register of Wills, where it will be recorded as public record. All beneficiaries named in the will and family members who would receive the probate assets if no will exist will be notified of the opening of the estate upon your death.

Who should prepare your will?
Your will should be prepared by a lawyer with expertise in Estate and Trust law in order to structure the will so that it minimizes estate taxes, ensures that the property will be distributed according to your wishes, and satisfies other legal requirements affecting your estate.

Who should be my personal representative?
A personal representative (often referred to as an “executor”) is the individual or institution named to handle the administration of your estate. It is not necessary to name a lawyer as a personal representative, but your personal representative should be a person who is capable of handling financial matters, maintaining detailed records and administering your estate.

How should my will provide for the care of my minor children?
In your will, you may name the person who will serve as guardian if you and your spouse both die while the child is under the age of 18. A will also gives you the opportunity to create trusts that will control how, when and under what circumstances your assets will be turned over to your children. In this way, you can prevent funds from being distributed to children before they are mature enough to handle them responsibly.

Where should a will be kept?
A will should be kept in a safe place to avoid accidental loss or destruction. You can leave your will in the law firm’s vault or file it with the Register of Wills in the county where you live. You should only keep a will in a safe deposit box if someone other than you has access to the box.