A Will Is Not the Whole Plan: Powers of Attorney, Guardians and Probate in Maryland

Ask most people whether they've done their estate planning and they'll say they have a will, or that they mean to get one. A will matters. But it only speaks after you die, and it only reaches certain kinds of property. A good plan also covers what happens if you're alive and unable to speak for yourself, who raises your children if both parents are gone, and how your property actually gets to the people you chose.

What a will does

A will states who receives the property that passes through your estate, names the person who will carry out your wishes, and, for parents of minor children, names who you want to raise them. That person is called the personal representative (some people still say executor). The personal representative collects your assets, pays debts and expenses, and distributes what is left according to your will.

Without a will, Maryland's intestacy rules decide who gets what, based on your family relationships. The result may not match what you would have wanted, and it can leave unmarried partners, stepchildren and close friends with nothing. A court also picks the person in charge rather than you.

What a will does not do

A surprising amount of property never passes under a will at all. Retirement accounts and life insurance go to whoever is named as beneficiary on the account. Property you own jointly with a right of survivorship goes to the surviving owner. Accounts with a payable-on-death designation go to the named person. If those designations are outdated, say an old account still names a former spouse, they generally win over what your will says. Reviewing them is part of any real plan.

And a will does nothing while you're alive. If a stroke or an accident leaves you unable to manage your own affairs, your will sits in a drawer.

Powers of attorney

A financial power of attorney is a document in which you name someone you trust, your agent, to handle money matters if you can't: paying bills, dealing with banks, managing property, filing taxes. Without one, a family may have to ask a court to appoint a guardian of the property before anyone can touch your accounts. That is slower, more public and more expensive than people expect.

A separate document covers health decisions. In Maryland, an advance directive lets you name a health care agent and set out your wishes about treatment, including what you want if you are seriously ill and cannot communicate. Hospitals and doctors look for this document, and it spares your family from guessing during the hardest days. You get to choose the people, and you can change your mind later.

Guardians for your children

For parents of young children this is often the most important line in the whole plan. If both parents die, a court has to decide who will care for the children. A will lets you nominate the guardian you would choose. The court makes the final decision based on what serves the children, but a clear nomination carries real weight, and without one the question can turn into a family dispute at the worst possible time.

Money is a separate question. A minor can't directly manage significant property, so leaving assets outright to a young child can lead to court supervision. Many parents instead set up a trust or name a custodian to manage the money until the children are old enough to handle it. You can also name a different person to manage the money than the one who raises the children, which sometimes works better.

What the Register of Wills does

Each Maryland county and Baltimore City has a Register of Wills. That office handles the paperwork of probate, the court-supervised process of settling an estate. After someone dies, the original will is filed with the Register, a personal representative is appointed, and notice goes out to creditors and heirs. The personal representative inventories the property, pays valid debts and taxes, and distributes what remains. The Register's office does not give legal advice, but it processes the forms and keeps the file.

Smaller estates may qualify for a simpler procedure, and larger or more complicated ones take longer. Strict deadlines apply at several points in an estate, so family members shouldn't put off getting guidance after a death. Careful planning beforehand can make the process more orderly for the people left behind.

A short list to start with

• A will naming a personal representative and, if you have minor children, a guardian
• A financial power of attorney naming an agent you trust
• An advance directive naming a health care agent and recording your wishes
• A review of beneficiary designations and how your accounts and home are titled
• A plan for any minor or vulnerable beneficiary, such as a trust or a named custodian

Cooper & Tuerk, LLP helps Maryland families with wills and estate planning, and you'll talk with an attorney directly, not a paralegal. If you have a will but nothing else, or nothing at all, call our office at (410) 539-0300 and we can talk about where to begin. This article is a general overview, not legal advice.