What Happens If You Die Without a Will in Maryland?


It can be challenging to keep up with everyday life, let alone start planning for the future. One of the tasks that often gets pushed aside is end-of-life planning. 

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End-of-life planning is different for everyone. It can include deciding if you need a will, leaving funeral instructions, and wishes for end-of-life medical care. If you are reading this article, you are at least thinking about end-of-life planning. If you want more information on end-of-life planning, feel free to browse our website. Cake provides tools and resources to help you on your planning journey. 

What happens if you don't ever get around to end-of-life planning? Then the state takes over, and they may overlook many of your preferences for your funeral and medical care. Additionally, if you own property, then the laws of the state where you reside will determine how to distribute the property. These laws are called intestacy laws. 

Maryland's Intestacy Laws Explained

If you die without a will, you have died "intestate." If you die without a will in Maryland, Maryland's intestacy laws will determine how to allocate your property to your heirs.

Before discussing Maryland's intestacy laws, it is important to understand some key terms. When a person dies, they are called the decedent or the deceased. Their property is called their estate.

Their probate estate is "property owned solely by the decedent or as a tenant in common.” A person's descendants are those in their bloodline, including children, grandchildren, great-grandchildren, etc. Heirs are family members who inherit property under intestacy laws. 

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How Does Probate Work in Maryland If There Is No Will?

Probate is the judicial process of settling a person's probate estate. This can occur with or without a will. Keep in mind that not all property is subject to probate. For example, proceeds from an insurance policy or property held as "payable on death" would not be subject to probate.

After a person dies, an interested party (typically a close family member) files a petition with the county court where the deceased resided. The petition is called a Petition for Administration, and it is necessary to open the estate. The court will then appoint a personal representative. 

Once the court appoints a personal representative, the personal representative must do the following: 

  • File all required documents within a timely manner
  • Abide by all court orders
  • Give proper notice to interested persons

The personal representative has many duties and responsibilities including, but not limited to, the following:

  • Identifying creditors
  • Completing an inventory of the deceased's probate estate
  • Filing an information report listing other assets
  • Filing an account

During probate, creditors may make claims against the estate, and the personal representative may pay the claims out of the estate. However, if there are insufficient assets, claims are paid in order of priority. 

Another important duty of the personal representative is the distribution of the estate. The personal representative "must distribute the net estate to the heirs in the order prescribed by Maryland law.”  We will discuss the order of distribution in the following sections.  

Small estates

Not all estates have to go through the regular administration process described above. Small estates may be eligible to go through a simplified version of the standard administration process. A small estate is one where "the property of the decedent subject to administration in Maryland is established to have a value of $50,000 or less (or $100,000 if the spouse is the sole legatee or heir).”

The role of the personal representative is important in settling the estate. If you have questions about being a personal representative, you should consult with an experienced probate attorney. A probate attorney can answer your questions and help guide you through the process. 

Who Typically Inherits Assets in Maryland If There Isn't a Will?

If there isn't a will, who inherits depends on whether or not the deceased had a surviving spouse and/or children. When discussing surviving family members, a common term that will appear is the word "issue."

In Maryland, issue means "every living lineal descendant except a lineal descendant of a living lineal descendant, including a legitimate child, an adopted child, an illegitimate child to the extent provided by law, and a child conceived from the genetic material of a person after the death of the person to the extent provided by law.” In Maryland, "issue" does not include a stepchild or a foster child.

If the deceased had a surviving spouse, then they would inherit as follows:

  • If there is a surviving minor child, the surviving spouse inherits one-half of the estate. 
  • If there is no surviving minor child, but there is surviving issue, the surviving spouse inherits the first $40,000 plus one–half of the remaining estate.
  • If there is no surviving issue but a surviving parent, and the surviving spouse and the decedent had been married for less than five years, the surviving spouse's share is the first $40,000 plus one–half of the remaining estate.
  • If there is no surviving issue but a surviving parent, and the surviving spouse and the decedent had been married for at least five years, the surviving spouse gets the whole estate. 
  • If there is no surviving issue or parent, the surviving spouse gets the whole estate.

Inheritance changes when the deceased does not have a surviving spouse. In Maryland, the following applies when there is no surviving spouse: 

  • If the decedent had issue but no surviving spouse, the children would inherit everything. 
  • If the decedent had a surviving parent(s) but no surviving spouse or issue, then their parent(s) would inherit everything.
  • If the decedent had surviving siblings but no surviving spouse, issue, or parents, then the siblings would inherit everything. 

In some situations, grandparents, great-grandparents, and stepchildren may be entitled to inherit under Maryland law. If you have lost a family member and believe that you may be entitled to an inheritance, you should contact a probate attorney immediately. A probate attorney can advise you of your rights and help you navigate the probate process. 

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Frequently Asked Questions: Dying Without a Will in Maryland

Dealing with the death of a family member can be a difficult process, both emotionally and logistically. If you are dealing with the estate of a deceased loved one, then you may have questions. Below we will answer frequently asked questions about dying without a will in Maryland. 

What happens when your parent dies without a will?

Losing a parent is a difficult experience. Losing a parent who did not write a will can add to the difficulties. As discussed in the previous section, what happens after someone dies depends on whether they have a surviving spouse. If they have a surviving spouse, you and your siblings will inherit one-half of the estate after the first $40,000.

If there is no surviving spouse, you and your siblings will inherit the entire estate. The whole estate is divided equally among the surviving issue by representation. Representation is one way of dividing property among generations. It means that each generation receives an equal share.

What are a surviving spouse's rights if there's no will?

If there is no will, a surviving spouse has many rights, which we described in the previous section. The spouse's rights are determined by how long they were married, whether or not the deceased had surviving issue, and whether or not the deceased had surviving parents. If there are no surviving issue or parents, the surviving spouse gets the whole estate.  

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How do you become an executor of an estate without a will in Maryland?

In Maryland, an executor of an estate is called the personal representative (or administrator). It is "the person appointed to administer the estate.” 

If a person has a will, it usually names the personal representative. If a person dies without a will, then Maryland law gives priority when appointing the personal representative. The priority goes to the surviving spouse and children of an intestate decedent. 

You are not eligible to be a personal representative if you are under 18, convicted of a serious crime, or mentally incompetent. There are exceptions, however. If you have been convicted of a serious crime, you may still ask the court to appoint you to be a personal representative by showing good cause.

You may also be ineligible if you are not a citizen of the United States unless you are a permanent resident of the United States and are:

  • The spouse of the decedent
  • An ancestor of the decedent
  • A descendant of the decedent
  • A sibling of the decedent

To become a personal representative, you must first open the estate by filing the Petition for Administration with the court in the county where the deceased resided. You must file several documents, including papers that say why you have the right to be appointed the personal representative and your eligibility to be appointed personal representative. You may also need to post a bond. If approved, the court will issue Letters of Administration.

The role of personal representative comes with many responsibilities. You should consider your ability to fulfill the role before filing to become a personal representative. If you have any questions about the position, contact a probate attorney. 

Who is considered next of kin in Maryland?

The term "next of kin" can have many different meanings depending on its use. It generally refers to a person's closest living relative.

It is crucial to determine how a person is related to the deceased for intestate purposes in Maryland. This relationship determines the order of distribution of the estate, as discussed in the previous section on who typically inherits assets.

You can consult a family tree if you are confused about how a person is or isn't related to the deceased. The State of Maryland provides a family tree to help understand kinship. 

If you have questions about whether you are related to a deceased person and whether you are entitled to a portion of their estate, you should contact an experienced probate attorney licensed in Maryland. 

What is an intestate personal representative in Maryland?

In Maryland, the court issues Letters of Administration to the personal representative. This gives the personal representative the power to act on behalf of the estate.

The personal representative of an estate must settle the estate and promptly distribute the assets per Maryland intestacy laws. The state holds the personal representative to

"the highest standard of care acknowledged by the law" and may incur personal liability if they fail to meet this standard.

The personal representative has many powers, including the following: 

  • Receiving assets
  • Holding assets
  • Paying claims
  • Dispensing funds
  • Fulfilling charitable pledges made by the decedent
  • Paying taxes
  • Paying funeral expenses
  • Paying other debts or expenses
  • Investing or selling property
  • Insuring property
  • Continuing a business
  • Performing contracts entered into by the decedent
  • Employing specialists or experts to advise or assist
  • Making partial or final distributions during the administration of the estate

Are you ready to cross end-of-life planning off your to-do list?

If you are not satisfied with Maryland's intestacy laws, now may be the time to cross end-of-life planning off your to-do list. No matter where you are in your life, you can always develop an end-of-life plan. 

An excellent website for end-of-life planning is the Cake planning platform. It has resources for everyone to help with proactive planning. 

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