Title 3 of Maryland’s Estates and Trusts Code covers what happens if you die without a will. This portion of the Code is titled “Intestate Succession and Statutory Shares.” It provides explicit instructions to the judges of Maryland’s orphan’s courts concerning what to do with the money and property of someone who dies without a will. This section of the law is commonly referred to as Maryland’s law of intestacy. Someone who dies without leaving a will is said to have died “intestate.” Maryland’s intestacy law also applies to someone who left a will that did not meet the minimum standards established for a valid will under Maryland law.
If I die without a will does the state take everything?
Contrary to common myth, someone who dies without a will does not automatically have his assets transferred to the state. Only in those rare cases when a Maryland resident dies without any heirs (spouse, offspring, siblings, parents, nieces/nephews, or cousins), does his estate pass by escheat to the state. According to § 3-105 of the Estates and Trusts Code, when someone dies without a will and without any heirs, his estate should be paid to the board of education for the jurisdiction in which the estate is settled. If the deceased person was receiving long-term care from the Maryland Medical Assistance Program, then his estate should be paid to the Maryland Department of Health and Mental Hygiene. It should be mentioned that these transfers are quite rare.
More often, the person who dies intestate leaves behind easily recognizable heirs. While many people use the terms interchangeably, an “heir” is the legal term for someone who receives a gift from the estate of a person who died without a will; a “beneficiary” is the legal term for someone who receives a gift as specified in a last will and testament. Maryland’s intestacy law sets the order of preference as well as the relative valuation of the gifts that an intestate person’s heirs will receive.
If I die without a will which of my family members gets my money and property?
In applying the laws of intestacy to any particular estate, the first consideration is whether or not the person who died had a spouse or children. According to the law:
- If the decedent had no living spouse then everything goes to his children in equal shares.
- If the decedent had a living spouse but no children or living parents then everything goes to his living spouse.
These portions of the laws of intestacy usually do not cause much controversy. It seems likely that most people would probably want their estates to be handled in this manner. Further provisions in Maryland’s intestacy laws may seem less desirable, however. For example:
- If the decedent had a living spouse and living minor children then 1/2 of the estate goes to his spouse and 1/2 goes directly to his children.
- If the decedent had a living spouse and living adult children then his spouse gets the first $15,000 and 1/2 of the remainder. His adult children receive everything else.
- If the decedent had a living spouse and living parents then his spouse gets the first $15,000 and 1/2 of the remainder. His parents receive everything else.
What are the problems with intestate transfers?
From my experience drafting wills, I know that most people do not want to diminish gifts to their spouses to the extent that the law of intestacy does. I’ll venture a guess that most people, asked to envision what they left behind if they were to die in their 40s or 50s, would be horrified to think that just under half of their money and property went to their children. Transfers directed by the laws of intestacy come with no strings attached. That means that an 18 year-old who receives nearly half of a deceased parent’s estate is free to do with it as he or she pleases. There are no trusts created and no limitations on the transfer. Depending on the size of the estate and the financial position of the family, transfers such as the ones listed above could create tremendous financial hardship for the surviving spouse. This is probably one of the most compelling reasons why someone should want to have a properly executed will.
What are some other intestate transfers? How about step-kids?
Further provisions in Maryland’s law of intestacy specify what happens to a decedent’s estate if he has no spouse, children, or parents. The law specifies that in these situations, the estate should be transferred to his siblings, their children, his grandparents, and their lineal descendants (the decedent’s cousins). Maryland’s intestacy laws treat half-siblings as though they are whole siblings. The law also treats unmarried partners and unadopted step-children as non-family, thereby transferring assets around them, and on to the decedent’s distant relatives.
What are the shortcomings of Maryland’s intestacy laws?
Maryland’s intestacy laws are often ill-suited for many modern families. In unmarried households the economic effects of a of partner dying without a will can be financially devastating. In situations where a spouse remarries after losing a first spouse, intestate transfers can diminish gifts to children in ways that the deceased spouse would not have wanted. Furthermore, intestacy laws do nothing to protect gifts to young adults, to designate guardians for minor children in the event a both biological parents die, or to choose responsible family members to handle important business matters for the estate. Significant estates subject to the laws of intestacy frequently cause family fights and heartache.
In effect, the laws of intestacy are like the default settings for estate transfers. Only a properly executed will can override these default settings. If you don’t presently have a will, then the law of intestacy functions as your will.
Matthew Baum is a Maryland attorney with offices in Baltimore, Catonsville, and Columbia. He is licensed to practice in Maryland and in the District of Columbia. As a part of his estate planning practice he drafts wills for individuals and families of all shapes and sizes. Baum Law Offices can be reached at (410) 929-3435.