One of the biggest consequences of passing away without a Last Will and Testament or Living Trust, is that the laws of the state in which you reside will govern what happens to your estate. If you pass away in Maryland, then the Government dictates who handles the administration of your estate and who gets your stuff.
You will not be able to choose your own Personal Representative/Executor. The law gives priority to certain individuals, such as the surviving spouse or adult children, but also the largest creditor of your estate. This can lead to what’s commonly referred to as a “race to the courthouse”.
The person appointed as Personal Representative is entitled to reasonable compensation. Recently I handled an estate worth $600,000 and the Personal Representative/Attorneys Fees were over $16,000. If you keep the total commission/fees to about 4% of the gross estate, the Court will most likely grant the Petition filed.
If you die without a Will, the person appointed as Personal Representative may be required to post a bond to protect the assets of the estate for additional heirs and potential creditors. This requires the filing of an application with a bond or insurance company and if approved, the company will insure the full estate value and the Personal Representative must pay the bond premium, which is often several hundred dollars. However, that is if the Personal Representative can even get approved. A bond application is like a credit application. If your Personal Representative has bad credit, bankruptcies or collections issues, then he/she may be denied. If there isn’t anyone qualified to serve, then oftentimes the person will need to hire an attorney to serve as Personal Representative.
Another important consequence of dying without a Will, is that the laws of intestate succession govern who will get your estate. Essentially it is a lineal chart of who your heirs at law are. As you can see, if you do not designate in a Will who your beneficiaries are, or take other measures to avoid probate, then your estate may end up in the hands of someone you don’t want.
If you have a spouse and minor children, the spouse gets half and the minor children get half. A spouse gets an additional $15,000 on top of the half if there are only adult children. If there are no children, but you have a spouse and living parents, the same applies. So your spouse has to share. If you do not have a surviving spouse, children and/or parents, then your estate goes to your siblings. If you have no living relatives then your estate goes to the State of Maryland; usually the County Board of Education. As you can see, taking steps to create a Will can make it easier for those you’ve left behind.
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