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ESTATE PLANNING

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. For more information about how a will can benefit you and your children, see the Article – Providing for Minor Children in Your Will.

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 is a legal document that designates an individual or entity to act on your behalf if you become incapacitated. The person or entity you designate is referred to as your agent or attorney-in-fact. This document is critical in ensuring that your affairs are handled appropriately when you are no longer able to make decisions for yourself.

Maryland law requires that a power of attorney be in writing and signed by the principal (the person creating the document) in the presence of two adult witnesses who must also sign the document.

It is important to note that a durable power of attorney is different from a regular power of attorney. A regular power of attorney terminates when the principal becomes incapacitated, while a durable power of attorney remains in effect even after the principal becomes incapacitated.

There are many reasons why someone might choose to create a durable power of attorney. For example, if you are diagnosed with a serious illness, you may want to designate someone to handle your financial affairs and make medical decisions on your behalf. Similarly, if you are planning to travel abroad or are otherwise unavailable, you may want to designate someone to act on your behalf while you are away.

When creating a durable power of attorney, it is important to carefully consider who you want to designate as your agent. Your agent should be someone you trust implicitly, as they will have broad powers to act on your behalf. They should also be capable of handling your affairs in a responsible and ethical manner.

In addition to designating an agent, you can also include specific instructions in your durable power of attorney regarding how you want your affairs to be handled. For example, you can specify how your assets should be managed, how medical decisions should be made, and who should be responsible for making end-of-life decisions on your behalf.

It is important to review your durable power of attorney regularly to ensure that it still reflects your wishes. If your circumstances change, such as if you get married, divorced, or have a child, you may need to update your document to reflect these changes. Similarly, if your agent becomes unable or unwilling to act on your behalf, you will need to designate a new agent.

In conclusion, a durable power of attorney is an essential document that can provide peace of mind for you and your loved ones. By designating someone you trust to act on your behalf, you can ensure that your affairs are handled appropriately if you become incapacitated. If you are considering creating a durable power of attorney, it is important to consult with an experienced attorney who can guide you through the process and help you make informed decisions about your future.

Advance Directive

What is an Advance Directive?

In Maryland, an advance directive is a legal document that allows individuals to make decisions about their medical treatment and end-of-life care in advance, should they become unable to do so in the future. It is a crucial document that ensures an individual’s wishes are respected and followed when they are no longer able to express their desires themselves.

An advance directive in Maryland includes two parts: the living will and the health care power of attorney. A living will states, in writing, the principal’s preferences for medical treatment and end-of-life care, while a health care power of attorney designates a trusted individual to make medical decisions on their behalf.

The living will can specify whether the principal wants life-sustaining treatment in situations where recovery is unlikely or impossible, such as in the case of a terminal illness. Individuals can also specify whether they want to be kept alive through artificial means, such as feeding tubes or ventilators, or whether they would prefer to have their lives end naturally.

The Health Care Power of Attorney

The health care power of attorney in Maryland designates a trusted individual, known as a healthcare agent, to make health care decisions on behalf of the principal if they become incapacitated or unable to make decisions for themselves. The healthcare agent should be someone who understands the principal’s wishes and values and who can advocate for their interests in the event of a medical crisis.

It is important to note that the principal can choose when the advance directive goes into effect. For example, the advance directive may go into effect only when the principal is unable to make their own health care decisions. If the individual can make their own decisions, they have the right to direct their own medical care.

What are the Witness requirements?

Maryland law requires that advance directives be signed in the presence of two adult witnesses, both of whom must be at least 18 years old. Witnesses may not include:

  1. The health-care provider of the principal or an employee, owner or operator of the health-care provider of the principal.
  2. A person related to the principal by blood, marriage, or adoption, and to the best of your knowledge entitled to any part of the estate of the principal under a currently existing will or by operation of law.
  3. A person named as the personal representative or trustee in the principal’s will.

It is recommended that individuals discuss their advance directives with their healthcare providers, family members, and healthcare agents to ensure that everyone understands their wishes and is prepared to act on them in the event of a medical crisis. This can help to prevent misunderstandings or disagreements between family members and healthcare providers and can ensure that the individual’s wishes are respected and followed.

Advance directives can be created, changed or revoked at any time if the individual is competent to make their own decisions. If an individual wishes to change or revoke their advance directive, they should notify their healthcare provider and healthcare agent, and make sure that the new document is properly executed in accordance with Maryland law.

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.

In conclusion, an advance directive in Maryland is a crucial document that allows individuals to make decisions about their medical treatment and end-of-life care in advance, should they become unable to do so in the future. It is important to discuss these wishes with family members, healthcare providers, and healthcare agents to ensure that everyone understands and is prepared to act on them in the event of a medical crisis. Through estate planning, individuals can have peace of mind knowing that their wishes will be respected and followed, even if they are no longer able to express them themselves.

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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