The last will and testament, commonly known simply as a “will,” is the most important document in the estate planning process. You might have other documents, such as a trust, to help plan your estate, but your will is the center of the plan. It lets you direct what will happen to your property after your death. If you have minor children, it also lets you arrange for their care. If you do not have a will, you give up the chance to direct where your property will go. An estate planning attorney with experience drafting wills in Maryland and DC can help you understand what you need to do.

What Is a Will?

A will is a legal document that leaves instructions for what you want to happen after your death. Your will can serve several important functions:

• It states how you want your property to be distributed after you die.
• It identifies someone who will manage your estate and distribute your assets.
• If necessary, it identifies a personal guardian to care for your minor children and/or manage their property.
• Optionally, it provides instructions regarding a funeral or memorial, and what should be done with your remains.

You should know a few important terms before we proceed:

• Testator: The person who creates the will, which in this case is you.
• Beneficiary: A person or organization who receives property from your estate.
• Personal representative: Sometimes also known as an “executor,” the person designated in your will to manage your estate and carry out your wishes.

The person you name as your personal representative may have to go to court to begin the process of managing your estate. Probate proceedings allow the court to confirm that the will is authentic. If anyone wants to contest the validity of the will, this is the time to do it.

What Do I Need to Create a Will?

A will must be in writing. Anyone who is at least eighteen years old and legally competent can create a will. “Legally competent” means that you understand what property you own, you know how you want to distribute it, and you know about and understand any claims that anyone might have to any of your property.

In both Maryland and DC, you must sign your will in front of two witnesses. Those two witnesses must then sign the will in front of you.

A will does not need to be notarized. Maryland does, however, allow you to include a “self-proving affidavit” with your will. This is a sworn statement, signed by both the testator and the witnesses, affirming that the will is valid. This can save you some time during the probate proceeding. The court will most likely accept the self-proving affidavit as evidence of the will’s validity, so your personal representative will not have to call the two witnesses to testify.

DC also allows testators to include self-proving affidavits with their wills. These must be notarized at the time the affidavit is created and executed.

Who Should Be My Personal Representative?

You should choose someone you trust to serve as your personal representative. The two criteria for serving as a personal representative that Maryland and DC have in common are that the individual must be:

• At least eighteen years of age; and
• Of sound mind, meaning not legally incapacitated.

DC also requires that a personal representative be a U.S. citizen or permanent resident.

Both Maryland and DC bar people with certain criminal convictions from serving as a personal representative. In DC, this applies to anyone with a felony conviction for which the sentence expired less than ten years earlier, unless the person has been “pardoned on the basis of innocence.” Maryland bars anyone with a conviction for a “serious crime,” unless the person can convince a judge that their criminal history will not affect their performance as personal representative.

Can I Change or Revoke My Will?

You can revoke your existing will at any time by either:

• Destroying the original will, such as by shredding or burning it; or
• Executing a new will that specifically states that you are revoking the old will.

It is also possible to amend your will by creating a “codicil,” which must be signed with all the same formalities as the original will, including witnesses and a requirement of legal competence. Unless the changes you want to make are minor, it is usually better to create a new will and revoke the old one.

What Happens If I Die Without a Will?

Dying without a will is known as dying “intestate.” Maryland and DC have “intestate succession” laws that state how to distribute property from someone who died without a will:

• If you have a spouse, but no children, your spouse inherits everything.
• If you have children, but no spouse, your children inherit everything in equal shares.
• If you have a spouse and children, your property is divided among them. The percentage that goes to each may depend on factors like whether the children are still minors and whether you have children from a prior relationship.
• If you have neither a spouse nor children, your property goes to your parents or your siblings.
• If you have no living parents or siblings, your representative may have to look for other relatives.

What About Estate Taxes?

The personal representative of an estate is responsible for determining whether the estate owes federal estate tax. The tax is paid out of the estate before anything is distributed to the will’s beneficiaries.

Very few estates actually have to pay any estate tax, though. Under current law, estates whose total assets are below a certain amount are exempt from paying the tax. That amount is adjusted for inflation every year. In 2021, the amount is $11.7 million.

Joyce Ann Williams is an estate planning attorney who practices in the District of Columbia and Maryland. She counsels individuals and families regarding wills, trusts, and other estate administration issues, helping them understand their rights and options. To learn more about her probate services, please contact her today at info@jwilliamslaw.com or at (301) 585-1970.