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Frequently Asked Questions

Who Needs An Estate Plan?
Regardless of your situation, chances are you need at least some estate planning. How sophisticated your estate plan must be generally depends upon your assets, your family, and your health. As we move through the various phases of life our estate planning needs change. Young adults need a basic Will, Power of Attorney, and Advance Medical Directive. Marriage and children will require additional planning as the primary focus is likely to be providing for minor children and naming guardians. As we age and our assets grow, estate planning may become more complex, but estate planning needs to be analyzed on a case by case basis. One size does not fit all.

What If You Have Neither Family Nor a Lot of Money?
We hear about so many estate planning benefits that we often overlook the most vital. Without the most basic estate plan, you have no control of who becomes your personal representative. If the state mistakenly appoints an irresponsible or dishonest personal representative, your final arrangements can be handled haphazardly or, even worse, your assets may never reach your beneficiaries. You know your family and friends best, and you should make that decision. Another consideration applicable to everyone regards your final expenses. Most underestimate the cost of even a "cheap" funeral and burial, and incorrect planning may force a close friend or family member to pay for your final arrangements.

Does Estate Planning Only Consider What Happens If You Die?
Even if immortality runs in your family, there are still aspects of estate planning that apply to you. To plan for a situation by which you are incapable of making decisions for yourself or performing life's necessities, your attorney often includes two documents for you with you estate planning package. The two documents are the Durable Power of Attorney and an Advanced Directive. The following is a basic description of either:

Durable Power of Attorney - The durable power of attorney names a person to manage your affairs if you become incapable. You essentially name a person to pay your bills, write your children's tuition check, contact your broker, etc. Without this document, your family may need to spend a large amount of money to have a court appoint a guardian to handle your money and other affairs while you cannot. With the durable power of attorney, you can also specifically direct how to handle certain situations, such as how your business will be run or how your investments will be managed.

Advanced Directive - The advanced directive is also known as a living will or health care directive depending upon the state. The advanced directive allows another to act on your behalf for health decisions. The advanced directive can direct specific actions be taken under certain health circumstances. The designated person cannot use the advanced directive's powers if you are otherwise able to make decisions for yourself.

Who will care for your children?
You can designate through your estate planning documents who will be the guardian of your children. You can even divide the guardianship into who will care for the child and who will care for their property, if you do not believe one person is best suited for both tasks. While a court will ultimately determine your child's proper guardian, the court will give your opinion great respect. Without your designation, the court independently seeks a guardian for your child without your personal insight and your knowledge of your family and friends.

What Costs Can Be Avoided Through Estate Planning?
Among other expenses, probate costs and estate taxes can be reduced through estate planning. Other expenses may not be as easily quantifiable. For instance, if your family owns a business, what is the cost of having the business tied up in probate with no person committing to preserve the business for an extended period of time? A business succession can be very costly if not planned.

What Is Probate?
Probate is a court process by which a deceased person's assets are transferred to his beneficiaries. In Maryland, the personal representative files a petition with the register of wills or the orphans' court to open the probate. After determining the estate's assets, paying the deceased person's debts, and paying other final expenses, the personal representative will then distribute the remaining assets. There are numerous reasons for wanting to avoid probate. First, your family's assets and debts become public record. Second, there can be significant time delays between your death and when your beneficiary has access to the assets. In addition, there are costs for probate and your personal representative may be entitled to receive compensation. This can be avoided by using a living trust or other tools available to an estate planning attorney.

Do I Need a Living Trust?
It depends. Some estates are large enough that using a living trust saves significant probate costs. Others may be interested in avoiding probate to preserve their family’s privacy, while others may prefer the smooth, seamless transition available by use of a living trust. Others desire a living trust to avoid the time delays associated with probate.

What Is a Living Trust?
A living trust is sometimes referred to as a revocable trust, a revocable inter vivos trust, or a grantor trust. A trust is a separate entity, similar to an LLC or a corporation, and is ommonly used for estate planning purposes. A revocable living trust holds your assets in the trust's name and is administered for your benefit during your lifetime. You can name yourself trustee and can change provisions or even dissolve the trust during your lifetime if you deem it appropriate. The trust transfers your assets to your beneficiaries when you pass without the delay, costs, or privacy issues associated with probate. When using a trust, the estate plan generally still includes a "pour over" will to catch any assets that were not transferred to the trust.

How Does Estate Planning Reduce My Estate Taxes?
There are numerous ways estate planning can reduce your estate taxes. An attorney will recommend different methods depending upon the types of property you own and the size of your estate. Some estates are small enough that only a simple bypass trust will be needed, while other estates will require use of more sophisticated techniques. A reputable tax or estate planning attorney should be able to guide you to the right estate planning tools.

Can my estate go to my child/grandchild who is disabled?
Leaving a bequest or giving gifts to a person with special needs often requires planning. Many persons with special needs will at some time receive government assistance in the form of Medicaid or Social Security Income. But the person must meet certain financial requirements to receive assistance. The person may lose their benefits if given an amount directly. Fortunately, proper planning through use of a special needs trust, also known as a supplemental needs trust, can allow you to provide the person with additional financial support without jeopardizing their government benefits.

Who Do You Contact When Someone Dies?
You should contact an attorney to assist you with handling the probate of the estate, particularly since the Personal Representative/Executor can have personal liability if the estate is not handled properly. You should secure any original signed copies of the last will and testament as well all information on the decedent's assets. The estate will be probated in the county in which the decedent last lived. For your convenience, here is a link to the phone number and address of each county register of wills in Maryland. Fortunately, an attorney may represent estates in any county.

Why have a will?
Without a will, state laws of "intestate succession" will apply. In Maryland, the following distributions would apply if you died without a will:

  • If survived by spouse and parents:
    • 1/2 of estate, plus $15,000 to spouse
    • Balance to parents
  • If survived by spouse and children:
    • 1/2 of estate to spouse; 1/2 to children
  • If survived by spouse and adult children:
    • 1/2 of estate, plus $15,000 to spouse
    • 1/2 of estate to children (not including step- children)
  • If no living heirs or step-children:
    • Estate goes to the Board of Education

If the intestate laws do not precisely reflect your wishes, a will and/or a revocable living trust is necessary.
*See MD Code Ann., Estates and Trusts 3 - 101 et seq. (2003) for a complete description of intestate distributions.

What are the benefits of a will?

  • You decide the distribution of your property, rather than the government
  • Potential to reduce taxes and fees
  • Avoid court appointed guardianship
  • Minimize time and complication of probate
  • Designate guardian(s) for your children
  • Express your wishes regarding life support, etc.

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