What is the Spousal Elective Share?   no comments

Posted at 1:30 pm in Articles,Elder Law FAQ,Probate FAQ

The purpose of the spousal elective share  law is to provide some protection to a spouse against being disinherited by granting the surviving spouse a right to elect to receive a percentage of the decedent’s estate instead of what, if anything, is provided in the Will. See Estate & Trusts Article 3-208.  The statute also provides how the elective share may be waived (3-205).

Spousal election used to apply only to assets in the probate estate. Non-probate assets were exempt. Many states, including Maryland, now provides that spousal election extends to the augmented estate, i.e. which includes non-probate assets. The rationale for augmenting the scope of the assets that can be reached is to protect a spouse against estate planning designed to move assets out of the probate estate to reduce or eliminate a spouse’ elective share. There are exceptions, and in some instances matters are not always clear-cut.  For instance, a pre-nuptial agreement or a marital separation agreement may negate the spousal election. The distinction here, is that these are consensual agreements.

In the context of Medicaid paying for long term nursing home care, if the Medicaid recipient’s spouse predeceases, the Medicaid recipient is still entitled to his or her elective share.  His representative must claim the elective share timely and report this claim to the Dept. of Social Services managing the case. Failure to do so will result in the non-claimed assets being treated as a gratuitous transfer, which will trigger a penalty period and make the Medicaid recipient ineligible for continued Medicaid benefits. The Medicaid recipient’s representative may also become personally liable.  In the context of Medicaid eligibility, the State’s Medicaid Recovery Lien does not extend to the augmented estate. 

One must following the procedure and file the election timely or the right to elect against the Will will lapse. These are matters that should be discussed with an attorney exeprienced in Elder Law and probate matters as soon as possible.


Maryland Marriage Law Attorney

Written by RobG on November 6th, 2015

Real Estate Planning: Before & During Probate   no comments

Posted at 2:01 am in Articles,Probate FAQ

Basic real estate succession planning  typically is planning to ensure that your children (or whomever you want), will inherit your home when you die.  For most folk, real estate means their personal residence and is their most valuable asset. For the purpose of this article, real estate includes  virtually all kinds of real estate.  Concerned about the potential claims of creditors and other family members, the IRS, and for various other reasons, many go about trying to protect their property the wrong way, sometimes with catastrophic consequences.  In most cases, the right way to achieve this goal is to keep your real property out of probate. Simply adding a family member to your deed usually is a bad idea!

While ignorance may be bliss, there many important considerations to be considered in determining whether and how to protect one’s property. Decisions made without the right information can have unintended consequences and cause great hardship to those you love and were trying to help. So, yes, legal services involve far more than “just” preparing a “simple” document. The real value, that you should gladly pay for, is the knowledge and experience that underlies the questions the lawyer asks to get to understand your needs, concerns and true objectives, consider which laws and potential issues need to be taken into account in order to determine the best approach for you and explain this in a way that enables you to make an informed decision with confidence and Peace of Mind.

Perhaps the most effective and commonly used approach to keep a home or other real estate out of probate is the life estate deed.  There are different types of life estate deeds and the choices may seem similar on one level, but can have substantially different consequences in certain circumstances, such as bankruptcy protection, divorce, maintaining control of the property and access to equity, Medicaid eligibility and asset protection planning, among others.

The key benefit of making a life estate deed is that the property becomes a non-probate asset and, since it is not part of one’s probate estate, it cannot become subject to the claims of one’s ordinary creditors. On your death, the property will bypass probate and go directly to the persons named in the deed. Another major benefit is that acquistion of a property by life estate deed is treated as inherited property.  The advantage of inheriting real estate rather than receiving it as a gift, is that the recipient receives a stepped up tax basis to the fair market value as of the date of death of the decedent rather than receiving the carry over basis of the decedent, thereby avoiding capital gains tax liability.

In addition, one can save money through using the deed to make multi-generational transfers without the concern that someone may overlook or neglect to plan effectively for the next generation.  Once again, there are other considerations that come into play, so one should be careful to avoid having the tail wag the dog. Sound legal advice is invaluable in all deed planning decision-making.

After the death of the decedent, if none of the above planning was implemented,  the real estate will be included in the probate estate. Assuming there are sufficient liquid assets to pay all the administration expenses, estate debts and distributive shares without having to sell the real estate, there exists an opportunity to do some smart estate planning, save money and eliminate the risk of a failure to plan in the future.

An experienced estate planning lawyer may be able to identify intelligent estate planning opportunities for you, save you money in the long run, and reduce risk. Instead of having the Personal Representative (also known as the Executor) simply transfer the property from the estate to the beneficiary, depending on the planning objective, one may be able to create several levels of planning in one deed. A trust may also be worthy of consideration.   This is another advantage to having the mindset that consulting with a professional is a smart investment, rather than trying to save money by making decisions solely based on price. 

Written by RobG on November 6th, 2015

How is a bankruptcy case affected by the death of the debtor?   no comments

Posted at 7:12 pm in Probate FAQ

In a Chapter 7 bankruptcy case, the deceased debtor’s personal representative can act on the debtor’s behalf and obtain a discharge for the estate as long as there are no disputed claims that preclude this. In a Chapter 13 case, the case will be closed and it will be as if the debtor never filed so the claims will remain as potential claims against the estate. This is because Chapter 13 is designed for the debtor to repay creditors over time in accordance with a Plan approved by the bankruptcy court from funds earned by the debtor. Obviously, the debtor can no longer perform his obligations and so case will be dismissed.

Contact us now to inquire about your bankruptcy rights.

Baltimore Bankruptcy Attorney

Written by RobG on June 25th, 2010

What are Caveat Proceedings?   no comments

Posted at 7:10 pm in Probate FAQ

The procedure for challenging or contesting a Will is to file a “Caveat” against the Will, which will begin Caveat proceedings. The court will suspend the powers of the Personal Representative until the contest is resolved. Caveat proceedings can range considerably in complexity and cost. The prudent approach would be to consult with an attorney experienced in probate law and caveat proceedings to evaluate the strengths and weaknesses of the challenge and to help formulate an effective strategy to proceed as cost-effectively as possible.

Contact us now to inquire about contesting a will and your rights.

Baltimore Will Attorney

Written by RobG on June 25th, 2010

Is a Will valid if the author was mentally incompetent or didn’t know what they were signing?   no comments

Posted at 7:08 pm in Probate FAQ

Allegations of mental incapacity, undue influence, abuse of a confidential relationship, coercion, fraud, and the like raise tricky factual and legal issues. The prudent thing to do is to consult with an experience probate lawyer as soon as possible.

Contact us now to inquire wills and related legal issues.

Baltimore Wills Attorney

Written by RobG on June 25th, 2010

Does Maryland recognize common-law marriages?   no comments

Posted at 7:04 pm in Probate FAQ

Maryland does not recognize common-law marriages and so parties who are unmarried have no marriage law rights of inheritance.

Contact us now to inquire about our Maryland marriage law services.

Maryland Marriage Attorney

Written by RobG on June 25th, 2010

How long does it take to administer or probate an estate?   no comments

Posted at 7:02 pm in Probate FAQ

The typical process, if there are no complications that cause a delay, takes about 8 to 10 months, sometimes a little longer.

Contact us now to inquire about our estate probation services.

Baltimore Estate Probation Attorney

Written by RobG on June 25th, 2010

Can a disinherited spouse or child contest the will?   no comments

Posted at 6:58 pm in Probate FAQ

Anyone who is an heir, even if not a beneficiary can contest a Will. Whether the challenge has any real prospect of success depends on the facts and circumstances in each case. Will contest cases can be very complicated and the sooner one consults with a lawyer the better.

Contact us now to inquire about our will related legal services.

Maryland Wills Attorney

Written by RobG on June 25th, 2010

When can the Personal Representative distribute the Estate assets?   no comments

Posted at 6:56 pm in Probate FAQ

No personal property, including furniture and effects, money, stock or other securities, real estate or anything else may be distributed without prior court approval. The court needs to be satisfied that the estate is properly accounted for, that creditors have had an opportunity to file claims against the estate and be paid, and that the administrative expenses have been paid. A Personal Representative may be held personally liable for the failure to properly administer the estate if such failure results in creditors, including the taxing authorities not being paid in full.

Contact us now to inquire about our estate related law services.

Baltimore Estate Attorney

Written by RobG on June 25th, 2010

Who is responsible for paying the funeral bill?   no comments

Posted at 6:47 pm in Probate FAQ

Typically, the decedent’s estate. However, frequently family members make last minute arrangements and sign papers at the funeral home agreeing to be responsible. If you signed such papers, you are personally liable. However, if there is enough money in the estate, you can be reimbursed.

Contact us now to inquire about our estate legal services.

Maryland Estates Attorney

Written by RobG on June 25th, 2010