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Part 1 – The Probate Process: The Will

Editor’s Note: This is Part 1 of our series on the Probate Process. To learn more, move on to Part 2: Ways To Contest A Will

Part 1 of this 3-part series on the probate process focuses on the Will and understanding the distribution of an estate. All states consider the decedent’s estate — that is, the assets and liabilities of the decedent — to be either intestate or testate. The former is used to describe an estate that will be distributed according to the probate statutes of the state in which the decedent died domiciled. The latter is used to describe an estate that will be distributed according to a will, more formally known as a last will and testament. A Last Will and Testament is a legal document that outlines a person’s plans for their personal property, family members, and other considerations after their death.

A will helps protect your interests and provides answers to end of life questions that may not have been asked. For example, many families have traditions for funerals or burials that individuals will want honored. Unfortunately, attorneys and loved ones do not always know what you want when you pass – and without a will, assets will be divided according to the state’s intestacy laws.

In most jurisdictions across the United States, intestacy laws favor spouses and heirs. Legal heirs are individuals who receive an interest in, or ownership of, land, tenements, or hereditaments from an ancestor who has died intestate, through the laws of Descent and Distribution.

How is a will executed?

First and foremost, in order to execute a will, you must have legal capacity to sign your will. At common law in most states, the signor of the will must “be of sound mind.” Generally, this means that you understand property you own, what your family relationships are, and the effect the document will have when you die.

Every state requires your will to be signed by two witnesses. These witnesses must be over the age of majority (18 years old in Maryland) and not a beneficiary of your estate. An estate beneficiary is any person who is entitled to a share or part of the estate. Keep in mind that it is important to choose witnesses who are likely to be around when the estate is probated, in the case that the Probate Court needs to reach them. To fully and legally execute a will, the will needs to be declared to the witnesses and signed by both the witnesses and signor of the will.

At Patriots Law Group, we understand how emotionally and logistically challenging it can be to protect a loved one’s interests after they pass away. Many servicemembers take the time to create a will before they deploy, but it is far too common of an occurrence for individuals to leave the dividing of their assets to intestacy laws, particularly in the case of sudden or unexpected deaths. Call Patriots Law Group at 301-952-9000 if you or a loved one need a will or would like to learn more about how we can help!

DISCLAIMER:  The information above is for informational purposes only and is not intended to serve as legal advice for any particular situation.  No attorney-client relationship is intended or created by this information and may not be relied upon based on the above-statements.  Each individual situation is different and therefore a consultation is necessary before any advice can be relied upon as appropriate and accurate for your situation. Please call Patriots Law Group at 301-952-9000 to set up a consultation if you wish to obtain specific legal advice concerning your situation.