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In Maryland, administrative and judicial probate is a court-supervised procedure for the identification and collection of the assets of a deceased person, the payment of the decedent’s liabilities and the transfer of the decedent’s assets to beneficiaries.  Laws governing estate administration can be found in the Maryland Rules of Procedure, Title 6 and the Estates and Trusts Article of the Annotated Code of Maryland.  Generally, the administrative or judicial probate process will begin in the Office of the Register of Wills where the decedent lived, however property located outside of Maryland may be subject to another state or country’s jurisdiction or laws.  In most cases, the cost of the probate proceeding are paid from the assets of the estate, then other outstanding debts are paid and finally, the remaining assets are distributed to beneficiaries.  If there is a will, ownership of the probate assets will be transferred to beneficiaries of the will.  Without a will, ownership of the probate assets will be distributed to the deceased’s heirs according to Maryland law.

Last Will and Testament

What is a will?

Your will is the document in which you can name the person with authority to carry out your wishes and you can leave directions as to how you want your assets divided and when they can have those assets. In Maryland, your will must be signed by you and witnessed by two credible and disinterested witnesses in your presence.  After you sign your will, your will should be maintained in a secure location. You may maintain your will with your attorney or with the Register of Wills for the county in which you live.  You should ensure that your family members are aware of the location of your will.  While you are alive and have full mental capacity, you can independently manage your bank accounts, real estate, and automobiles, but once you’ve passed away, you obviously no longer have the ability to manage those assets and no one else can until they are given authority to do so. Your will is the document in which you can name a person with authority to carry out your wishes as to who you wish to have your assets, and the timing in which they may have your assets.  Your will can also appoint a person who will be responsible for your minor children and can provide direction as to how they will be cared for in your absence.

The benefits of hiring an attorney to prepare your will?

Although you can write your will without an attorney, the benefit of having an attorney prepare your will is so that he or she can advise you about the best way to achieve an effective and valid distribution of your estate upon your death consistent with your goals and objectives. The attorney will assemble information concerning your goals, your family and the assets and liabilities of your estate. While you may think that you only need a “simple will”, even small estates have certain complexities which an experienced lawyer can assist you with effectively.  If you own property in more than one country, your lawyer can help you decide whether you should have a single will applicable to all property or a separate will for each country.  Your will must also meet the requirements for authenticity and validity in accordance with local law.

What happens if you die without a will?​

If you die without a will, the Maryland laws of intestacy will govern the distribution of your estate.  When you do not have a will, the court can appoint a person with the authority to manage your estate, which maybe someone you do not even know.  Your will provides a way in which you can establish trust with provisions that you can direct.  A will permits you to formulate a plan that takes into account the needs of your family, the nature of your property and it minimizes the burden of taxation. Through a will, you can provide special bequests to unrelated individuals and charities, to make unequal gifts in proportion to need.  You can provide for the appointment of a guardian for your minor children and you can provide for special burial instructions or anatomical gifts through your personal representative.

Does your will expire?​

Your will does not “expire” but it may be amended or revoked under Maryland law.  You can change your will as long as you are competent to do so and you are not acting under undue influence, duress, or fraud, and the changes are made within the manner required by law.  Changes within your family such as births, deaths, marriages or divorces, substantial additions or subtractions to the type and size of your assets, or even changes in the law may require the review and amendment of your will.

Living Trust

What does a living trust do for you?

A living trust is a written agreement which allows you to manage your assets, like bank accounts, investments, and real estate, to name a few, and then transfer them upon your passing.  Living trusts do have advantages.  For example, if you own real estate in another state, a trust may allow you to avoid a probate proceeding in the other state where you do not live.  If you anticipate that your will may be contested, then you may establish a living trust, because trust may be more difficult to challenge based upon incompetence or undue influence.  A living trust may also be helpful if you are not confident about making investment choices and you want someone else to help you manage your assets.  You may also consider using a power of attorney as a less costly alternative.  The trust assets are managed by the trustee, which can be yourself or another person or entity.  If your trust is revocable you can amend or end it at any time, assuming you are competent to do so.  If you suffer from mental incapacity, your trustee can continue to manage your trust and make investment decisions.  A properly drafted trust may also help avoid guardianship for your assets.  When you die, your trustee has the responsibility to pay claims and distribute your assets to your beneficiaries according to the terms of the trust agreement.  Trust assets must formally be titled to your trust to get the full and proper benefit of the living trust.  Property not included in the trust may be subject to probate or guardianship proceedings.

Is it a good idea to hire an attorney to prepare a trust?

The preparation of a living trust requires many important decisions that necessitate the professional judgment that can be gained from an experienced attorney.   You also need to ensure that your living trust satisfies the requirements of the Maryland Trust Act, Title 14.5 of the Estates and Trusts Article, enacted in 2014 and effective as of January 1, 2015.  An attorney can help you make sure that your familial, economic and tax goals are being reflected in your trust.  Your attorney can help you choose which assets should be placed within the trust, how they will be transferred, and the allocation of assets. 

Durable Power of Attorney

What is a durable power of attorney?

A durable power of attorney authorizes another person to make decisions concerning your property for you.  Your agent will be able to make decisions and act with respect to your property (including your money) whether or not you are able to act for yourself.  You should obtain competent legal advice before you sign a power of attorney especially if you have any questions about the document or the authority you are granting to your agent.  The durable power of attorney is only valid and enforceable during your lifetime.

Advance Directive

What is an advance directive?

Maryland has made important improvements in the area of advance directives and patient rights giving protection to a person’s right to health care autonomy. An advance directive is a document through which you can decide if or how you want medical treatment if you are ever faced with a life-threatening illness. In an advance directive, you can make choices in writing now, so that those choices can be respected, and you can relieve at least some of the burden from your loved ones in the future. The advance directive can also be used to name a health care agent, and for medical planning.

Competency and signing the advance directive

At the time at which you are signing the advance directive, you must be competent.  You must be able to understand the effect of the documents you are signing, to whom you are giving this authority and how you may be affected by the authority you are granting.

Is it a good idea to hire an attorney to prepare an advance directive for you?

You do not need an attorney to prepare your advance directive, but a trained attorney can help you avoid making mistakes when completing the form.   An advantage of hiring an attorney is that you can review your choice of a Health Care Agent with your attorney to help you pick someone who will make sure your wishes are honored.  Your attorney can also guide you through the living will portion of the advance directive so that your choices for treatment are informed by the sober realities of the dying process.    An attorney can also help you customize the form so that your religious and cultural beliefs about end-of-life treatment can be included.  The Maryland Advance Directive form is available online at Md Code, Health General, § 5-603 (2019).  The Maryland Attorney General also publishes the Maryland Advance Directive: Planning for Future Health Care Decisions, A Guide to Maryland Law on Health Care Decisions (Forms Included): Click here

What is a fiduciary?

When acting as an attorney-in-fact and/or a health care agent, those individuals are what the law calls a “fiduciary” and as a fiduciary are given many responsibilities under the law.  These responsibilities include the general duty not to take any actions that are not authorized by the documents which have appointed them to these roles.  Also, when acting on behalf of a principal, the fiduciary must: (1) do what they know the principal reasonably expects them to do with the principal’s property or, if the fiduciary does not know the principal’s expectations, act in the principal’s best interest; (2) act with care, competence, and diligence for the best interest of the principal; (3) do nothing beyond the authority granted in the document; and (4) disclose the fiduciary’s identity as an agent whenever they act for the principal.  This means that the fiduciary must use reasonable care and caution in managing your assets.  Your fiduciary must also keep careful records and may be required to provide an accounting of your assets or history of your health care.

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