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Attestion of a Will in Maryland

For a Will to be valid in Maryland, it must be signed by the person making the Will and two witnesses.

Attestation is the act of witnesses in seeing that those things exist and are done which the statute requires.   It begins with the testator asking the witnesses, either by words or deeds, to sign the Will.  Witnesses need not know the document is a Will as long as they see the testator sign it; nor must they observe the testator signing it as long as he or she acknowledges the signature or informs the witnesses that the document is a Will.

The witnesses must, however, sign the will in the testator’s presence, i.e., within the testator’s unobstructed range of vision.

Practice pointer: The testator (the person making the Will) should declare that he is about to execute his Will and then he should sign his Will in front of two witnesses; and then the two witnesses should both sign the Will in each other’s and testator’s presence.


Maryland increases its estate tax exemption starting in 2015

The estate tax is a tax on property (cash, real estate, stock, or other assets) transferred from deceased persons to their heirs. Only the wealthiest estates in the country pay the federal tax, because the estate’s value must exceed a specified exemption level, currently $5.34 million per person (effectively $10.68 million per married couple).

On January 1, 2015, Maryland will increase its estate tax exemption from $1 million to $1.5 million.  Maryland will then continue to increases its exemption each year through 2019 until its matches the federal exemption of $5.34 million.   By eventually matching the federal estate tax exemptionl, only the wealthiest Marylanders will be burdened with estate taxes.   According to the Tax Policy Center, only 1.4 estates out of a thousand (0.14%) owed any estate taxes in 2013.




Why parents with minor children need a Will

According to the September 2014 issue of Money magazine, 61% of parents with minor children do not have a Will.  Without a Will, a judge will decide who will raise the minor children if both parents were to perish.  With a Will, the parents can name a guardian and an alterative guardian to raise their minor children.

Practice Pointer: All parents with minor children need a Will so they can appoint the guardian who will do the best job in raising their children.  Parents should select as a guardian a family member or close friend who shares their child rearing philosophy.  Most parents select either the children’s aunt, uncle, or grandparents to serve as guardians or co-guardians.

How to make an effective inter visos gift in Maryland

Inter visos is the legal term referring to a transfer or gift made during one’s lifetime, as opposed to a testamentary transfer, which is a gift that takes effect on death pursuant to a Will.  Inter visos transfers can be an important part of estate planning. 

For an inter visos transfer or gift to be valid, the property must be delivered to the recipient.  Delivery requires transferring the donor’s dominion over the property without power of revocation or retention of dominion over the subject of the gift.  For example, if the donor states the intention to give a valuable item of jewelry to a family member but does not delivery the jewelry to the recipient, a gift has not taken place.  When the person dies, the jewelry will be distributed according to the person’s Will or intestate succession rules if the person dies without a Will.

Ineffectual inter visos gifts often happen when a person executes a Deed to transfer his or real property, but neither records the Deed nor delivers the Deed to the recipient or a third person.  Unless the grantor relinquishes control of the Deed by delivering it to the recipient or a third party, the Deed will be ineffective. 

Practice pointer: If you want certain possessions to be inherited by a particular person, you need to state this intention in your Will.  It is not sufficient to label a possession with the name of the person you want to inherit the property.

Safekeeping of Your Will in Montgomery County, Maryland

After your Will has been executed, you need to store your Will in a safe place, such as a fire-proof safe at home or a safe deposit box at a bank.

There is a third option.  I recommend that you deposit your Will for safekeeping with the Register of Wills.  You’ll be charged a one-time fee of $5.00.  During your lifetime, the Will you deposited in the Register of Wills’ office can only be released to you or a person authorized by you in writing to receive the same. You should always make sure that the person you named as Personal Representative is made aware of the location of your Will.

How to properly execute a Will in Maryland

For a Will to be valid in Maryland, it must be signed by the testator and then by two witnesses.  This process is known as attestation.  It begins with the testator asking a witness, either by words or by deeds, to sign the Will.  The witness then attests by observing that the Will is in writing and signed by the testator.   Witnesses do not need to know that the document they are signing is a Will.   Nor must they observe the testator sign the instrument.  However, where the Will is signed out of the witness’s presence, the testator must acknowledge in some way that the instrument belongs to him or her.   The two witnesses must attest and sign the Will in front of the testator, but they need not sign in front of each other.

Practice pointer: Most attorneys simply the attestation process by having the testator sign the Will before two witnesses, who then sign the Will.


Why you need a Will in Maryland

More than half of adults living in Maryland do not have a Will.  This leaves their estate plan in the hands of Maryland’s intestate succession law, which will distribute their property according to an inflexible schedule as follows:


1.  Spouse and minor children of the decedent: Spouse receives one-half and children share remaining one-half.

2.  Spouse and children (all adult) of the decedent: Spouse receives $15,000 plus one-half of the remaining estate; and adult children share the remaining one-half.

3.  Children only of the decedent: children (does not include step-children) divide the entire estate (the interest of a pre-deceased child passes to the issue of that child–grandchild of decedent).

4.   Spouse and parents of the decedent: spouse receives $15,000 plus one-half of the remaining estate; and both parents divide the balance or the surviving parent takes the balance.

5.  Spouse of the decedent without any children or parents: Spouse receives the entire estate.

6.  Parents of the decedent without any spouse or children: Both parents divide the entire estate or the surviving parent takes all.

7.  Brother/sisters of the decedent without any spouse, parent, or children: Brothers and sisters divide estate equally (share of deceased sibling goes to their issue–nieces and nephews of the decedent).

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Law Office of Stewart Andrew Sutton, LLC
8 Executive Park Court
Germantown, Maryland 20874
Telephone: 301-916-5000
Fax: 301-916-1201

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