Do YOU have a will? You Should, Otherwise Your State's Default Laws Create Your Will For you.

by Sally Presler McCash
February 28th, 2014

Do you have a will?

Even if you never get around to consulting a lawyer to prepare a will and have it properly executed, virtually every state in the union has taken the trouble to write one for you.  Unfortunately, the legislatures who created  the laws of intestacy don’t know you, don’t know your children, don’t know your crazy “ex”, don’t care if your only sibling is a homeless, unemployed, or deadbeat.  They create a “one size fits all” set of rules that direct where your assets go and in what percentages without regard to any of those details of your life.

Read on to hear what the State of Maryland has planned for you if you reside here when  “ the end” comes  and some of the challenges your survivors may face:

Generally speaking, if you die without a Will and you are married, your spouse gets only ½ of your assets; the rest goes to your children in equal shares regardless of their age or individual needs.  No spouse?  All of it goes to your kids.  No kids either?  All to your parents.

That distribution plan doesn’t sound so bad until you look more closely at some possible unintended consequences that could apply to any family:

Maryland treats all your children equally – children from prior marriages, adopted children, adults (over the age of 18) and minors. If you happen to have the family home titled in just your name, your spouse will have to get permission from a Court appointed guardian of any minor children for permission to sell the house, refinance , it or use their half of any proceeds to buy a new home.  This could include an ex-husband or wife who as the qualified guardian of a child from a previous marriage ends up with control of the purse strings.  Imagine the joy your new widow will experience  having to deal with your ex-wife in a battle over proceeds from a sale of the former marital home.

In addition, since Maryland treats all your children equally, your adult children who may have gotten the benefit of an Ivy league education funded by you in earlier years get the same dollar amount of your estate as the 10 year old in elementary school, or a severely disabled child.

No spouse and no children – everything goes to your parents, regardless of whether they are multi-millionaires or institutionalized with severe dementia and your death leaves that homeless, unemployed, and deadbeat of a brother as the custodian of their funds.

It is estimated that only 60% of individuals over the age of 50 years have wills, 45% of these people have powers of attorney, 30% of these people have advance medical directives, and only 23% have living trusts. These statistics indicate that most people fail to create a comprehensive estate plan, and of those who have completed their estate planning, odds are they haven’t reviewed or updated their plans in years. Prior planning produces positive results upon disability or death.

Failing to plan is planning to incur unnecessary problems, delays, taxes, and expenses.

Sally Presler McCash is an of counsel in Joseph, Greenwald & Laake’s Real Estate, Business and Estate Planning Practice Group. A lifelong Maryland resident, she has more than 30 years of experience in representing real estate developers, banking and lending institutions, title insurance underwriters, investors, and business owners in a wide variety of matters.

Contact Sally McCash

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