4.04.25

Decedent's Estates

Does your state use terminology different from that provided in 4:04.1 of the Underwriting Manual? If so, please identify and define such terms. Provide statutory citations.

Yes.

Since adoption of the Uniform Probate Code on January 1, 1970 Maryland ceased using the following terms: administrator/ix, administrator/ix CTA, administrator/ix DBN, executor/ix, curtesy, dower, inchoate right of curtesy, inchoate right of dower, letters testamentary, testamentary power of sale, devisees and legates.

The term "Personal Representative" replaced the terms administrator/ix, administrator/ix DBNCTA and executor/ix. See ET sec. 1-101. The Personal Representative has broad powers, including the power to sell of real property, even if not conferred in the will. See ET sec. 7-401. Except in extraordinary circumstances there is no need to petition the Orphans' Court to sell property.

The term "letters of administration" is the only term used in MD to describe the document conferring powers on a Personal Representative. See ET sec. 6-104 and Maryland Rule 6-322.

Maryland still uses the term "special administrator" to describe that person or entity appointed upon the petition of creditors of the decedent or other interested parties to protect and conserve the property of the estate prior to the appointment of a Personal Representative. See ET sec. 6-401 et seq. and Maryland Rule 6-454.

Dower and Curtesy were abolished effective 1/1/70 (See ET sec. 3-202) upon adoption of a scheme granting a surviving spouse the right of election to take against the will (gets share he or she would have received had decedent spouse died intestate but no more than one-half). See ET sec. 3-203. This right is lost if not exercised within seven (7) months after issuance of letters of administration.

The term "surrogate court" is not used in Maryland. In 22 of our 24 jurisdictions there is a probate court known as the Orphans' Court whose judges are elected and which has broad jurisdiction to govern the conduct of administration but lacks jurisdiction to try issues involving title to real property. See ET sec 2-101 and 2-102. In Montgomery and Harford Counties a judge of the Circuit Court sits as the Orphans' Court.

Devises and legatees are identified merely as "interested persons"-See ET sec. 1-101 (g).

Is there a statutory time limit for (a) probating a decedent's will, or (b) opening administration of an intestate's estate? If so, specify for both situations. Provide statutory citations.

No.

Does the disposition of property under the laws of intestacy depend upon any of the following classifications of property or rights in property: Community, separate, tenancy by the entirety, dower, curtesy, etc.? If so, summarize. Provide statutory citations.

Once a Personal Representative is qualified by the Orphans' Court, is issued letters and files his/her bond, title to all of the decedent's interest in real property is vested in the Personal Representative, not in the heirs or devisees. Maryland does not recognize community property and has abolished dower and curtesy. It does recognize the estate of tenants by the entireties and real property held in this estate by persons married to each other at the time they take title passes to the surviving spouse without the necessity of administration or the payment of state inheritance taxes. Tenants by the entireties is very popular in Maryland.

Does your state recognize joint tenancies? If so, describe the procedure necessary to pass title held in joint tenancy upon the death of a joint tenant. Provide statutory citations.

Yes. Assuming there has been no inter vivoas action by the tenants which would sever the tenancy, the death of a joint tenant vests title to the property automatically in the surviving tenants without the necessity of administration. However, the surviving tenants must file a Bill to Fix Inheritance Tax and pay a state co-tenancy (inheritance) tax on the privilege of succeeding to the decedent's interest (See MD Rule 6-405) and unpaid tax is a lien on real property for a period of four (4) years after the death of the decedent [See TG sec. 7-209 (a) & (b) and TG sec. 13-806(b)].

Another common will substitute used in Maryland for the devolution of real property is the creation by deed of a life estate with full powers of disposition with remainder over in the event such powers are not exercised inter vivoas by the life tenant. Since the interest of the remainderman is vested subject to divestiture, Maryland imposes an inheritance tax on the devolution of title on the death of the life tenant. See TG sec. 7-201(c), 7-202 and 7-216(b)

Does your state provide for any special benefits to a surviving spouse or family that allow them to take property contrary to will provisions? Provide statutory citations.

Yes. In Maryland a disinherited child has no statutory right to contest the parent's will. However, a surviving spouse who receives less than the share he/she would have received had the decedent spouse died intestate has the right to elect to take against the will. This elective share cannot exceed one-half of the net estate. See ET sec. 3-203. However, a surviving spouse is also entitled to a family allowance of $2,000.00 for personal use and allowance of $1,000.00 for each unmarried child of the decedent who has not reached 18 years of age. See ET sec. 3-201.

Summarize the steps required for a testate administration. Provide statutory citations.

File original will and petition for probate and letters with Orphans' Court (Maryland Rules 6-151 & 6-301 and ET sec. 5-206).

File information report listing names and addresses of parties interested in the estate and identifying any jointly held property (Maryland Rules 6-316 & 6-404).

File bond upon issuance of order for probate and letters (Maryland Rule 6-321) and acceptance by Personal Representative (ET sec. 6-102 & Maryland Rule 6-312 and 6-313).

Publish notice of creditors/notice of appointment of Personal Representative (ET sec. 6-103 and 7-103, Maryland Rules 6-311 and 6-401).

File inventory within three months after appointment (ET sec. 7-201 and Maryland Rule 6-402) and notify interested persons.

Obtain order of Orphans' Court to pay Personal Representative Commissions and counsel fees (Maryland Rule 6-416).

File initial administration account within nine months of appointment (ET sec. 7-301 et seq. & Maryland Rule 6-417) and notify interested persons.

Pay state inheritance taxes on probate and non-probate assets (TG sec. 7-202 and Maryland Rule 6-405).

Summarize the steps required for an intestate administration. Provide statutory citations.

File information report listing names and addresses of all heirs and any jointly held property with Register of Wills.

File petition for issuance of letters (attach renunciations by all other parties entitled to administer) (Maryland Rule 6-314).

File Personal Representative's bond upon issuance of letters.

The remainder of the steps required for intestate administration generally the same steps required for testate administration.

Is there a procedure or documentation customarily accepted by the bar to indicate heirship which is not based on a statute or cases? (e.g. Affidavits of Heirship) If so, describe the procedure and furnish a sample of any forms.

No. Register relies on information report which is executed under penalties of perjury by person seeking letters (See Maryland Rule 6-404). In cases in which some heirs whereabouts are unknown, Register may request evidentiary hearing before Orphans' Court. This may lead to judicial probate (ET sec. 5-401) or the filing of a proceeding to establish heirs which court may hear or transmit to Circuit Court. Actions to quiet title to real property, however, must be filed in Circuit Court.

Are there any short or abbreviated probate procedures provided for by statute? If so, summarize. Provide statutory citations.

Yes. In cases in which gross probate assets are valued at $20,000.00 or less, the estates of both testate and intestate decedents can be administered as a "small estate" by a streamlined procedure under the supervision of the Register of Wills. See ET sec. 5-601 et seq. and Maryland Rules 6-201 et seq. Under this procedure, creditors have only 30 days to make claims, bond is not required if probate estate under $10,000.00, the information report serves as the inventory and probate fees are nominal.

Are there any other probate or alternative probate procedures available in your state that haven't been described? If so, summarize. Provide statutory citations.

Yes. There is a requirement for ancillary administration if decedent owning real property in Maryland dies outside the state and estate is administered in that foreign jurisdiction. In such cases, Maryland permits foreign Personal Representative to exercise in Maryland the same powers to sell, etc. which are enjoyed by Maryland Personal Representatives but he/she must comply with Maryland law regarding notice of appointment, notice of creditors and payment of claims and payment of any state inheritance taxes which may be due. See ET secs. 5-501 et seq. However, it should be noted that while a Maryland Personal Representative can sell and convey real property free and clear of claims against estate and the lien of unpaid state inheritance taxes (liens attach to proceeds), a foreign Personal Representative , in most situations, cannot sell and convey until notice to creditors has run and any claims and state inheritance tax are paid out of settlement proceeds. Maryland law reflects a policy of not allowing sale proceeds to leave this state until claims and taxes are paid.

Do your state statutes provide for an ?inheritance" tax? If so, is it based on (a) an heir's share of the estate or (b) is it an estate tax on the total value of the estate, or (c) on another basis? When must the inheritance tax return be filed? Provide statutory citations.

Yes. Maryland inheritance tax on both probate and non-probate assets is 1% of fair market value on property passing to direct descendant's and 10% on property passing to collateral heirs. It is assessed upon the share of each heir or devisee. Inheritance taxes due on probate assets is payable in full on filing of a final administration account in the estate. Inheritance (co-tenancy) taxes due upon the devolution of non-probate assets are due upon death of the joint or life tenant. See TG 7-202 et seq. Property passing under a small estate is exempt from payment [TG sec. 7-203 (h)].

Do your statutes provide for an inheritance tax lien? If so, summarize, e.g. What are the requirements for (a) attachment, (b) perfection; and (c) enforcement of the inheritance tax lien. Is there a statute of limitations for the inheritance tax lien? If so, specify. Provide statutory citations.

Yes. Unpaid inheritance tax is a lien against real property of decedent [TG 13-805 (b)]. While the personal obligation to pay these taxes continues forever, the lien against real and personal property of the decedent expires four (4) years after the date of distribution in the case of probate assets and date of death for non-probate assets. [See TG 13-806 (b)]. A sale of real property by a Personal Representative for a bona fide consideration in the course of administration is free of this lien. However, if real property is distributed to a specific devisee prior to filing an account and payment of tax, title passes subject to the lien.

Summarize the steps of the procedure for the sale of real property during the pendency of an intestate administration. Provide statutory citations.

Unless the Personal Representative proposes to sell real or personal property to himself/herself or for less than its fair market value as stated in the Inventory, there is no requirement to report any sale to the Orphans' Court or Register of Wills. This requirement is more a matter of long-standing practice and local rules and is not mandated by state law. See ET sec. 7-401(n).

Can a personal representative for a testate administration sell real property of the estate without obtaining a court order? If so, please identify any requirements? Any limitations? Provide statutory citations.

Yes. There are no limitations except as imposed by local practice and rules (see above). See ET sec. 7-401(n).

When, if ever, must a personal representative of a testate administration obtain a court order to sell real property of the estate? Summarize the steps of such procedure. Provide statutory citations.

No requirement in Maryland Code or Rules. Court has jurisdiction under ET sec. 2-102. When done pursuant to local practice or rules the form of petition and notice requirements are as stated in Maryland Rules 6-121 through 6-173. Generally, the Personal Representative files a verified petition to sell real property to the Orphans' Court. In rare cases, the Court will require a hearing after 20 days notice to interested persons. In most cases, the Court signs an interlocutory order authorizing sale which does not become final until interested persons are given notice and opportunity to object. Normally, 30 days is specified. Title cannot be insured without an affidavit of mailing and until the notice period has run without objection.

Do your state statutes provide for the probate of foreign wills (wills of testators not domiciled in your state)? If so, summarize the provisions and procedures. Provide statutory citations.

Not specifically. It is often done as an alternative to ancillary administration to facilitate the sale of the decedent's interest in Maryland real property, particularly in cases in which the will contains no power of sale. Maryland recognizes letters issued in other jurisdictions. ET sec. 5-502 grants foreign personal representatives the same power to sell Maryland real property as a Maryland Personal Representative. However, it is believed that .

if the foreign will does not contain power of sale and

the jurisdiction in which the will would ordinarily be probated requires a court order to sell, a conflict of laws issue may arise if concerning the approval of the Maryland sale. To avoid this, many Maryland practitioners open a new estate and reprobate the will here to administer on real estate assets only. This also expedites closing by eliminating the need to wait for running of notice to Maryland creditors.

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