LEGAL TEAM SPEAKS – AUGUST 2010
Robert R. Smith, Esq., and Gilda O. Karpouzian, Esq., are practicing lawyers in Maryland with over 30 years of experience. Their answers below are based on assumptions that Maryland law applies. Mr. Smith can be contacted at 410 268‑5600 or firstname.lastname@example.org and Ms. Karpouzian can be contacted at 410 280‑8864
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Dear Legal Team:
While living in Pennsylvania, we made out our wills. We now reside in Maryland and don’t want to go to the expense of hiring another lawyer to redo them. My question is twofold: Are out-of-state wills legally binding in the state of Maryland and second, if I decide to make out a new will and download the form from the Internet, and fill in the blanks, and have it notarized, will that be considered a legally binding document?
Perplexed from Pennsylvania
Dear Perplexed from Pennsylvania,
It is important to note that each state in our union may have different laws that affect estate matters. For example, not all states have the same rules when it comes to the number of witnesses required to sign a will. It would be unfortunate for your heirs to find out that a will you created in another state is not enforceable in Maryland. This could adversely affect all your best laid plans for distribution of your estate. Additionally, some wills might contain language referring to the laws of the state where the will was created. Once you change your residence from one state to another, it is recommended that you create a new last will and testament, and most importantly that you consult an attorney to make sure your will is valid in your present state. We recommend that everyone periodically consult an attorney about their estate to see if changes should be made. Things do change over time. Given how important estate matters can be to you and your family we warn against relying on something found on the Internet. It may not be right. This is due to the fact that if the will is not valid or not properly drafted, it will not effectively address your estate distribution. Your heirs will be upset and unfortunately you won’t be around to do anything about it. We cannot emphasize enough how important it is to have an attorney look over your will or even better have an experienced attorney prepare a will for you and give you competent advice about an estate plan. Lack of foresight can result in a permanent mistake.
Dear Legal Team:
Would you recommend putting our adult child’s name as a co-owner on the deed to our home? Our intention would be that if something happens to us, he would inherit directly without having to go through probate and it would become his automatically. He’s more than trustworthy and we’re trying to keep his inheritance as simple and uncomplicated as possible.
Dear Happy Homeowner,
See above. We first recommend that you get assistance from an attorney in creating an estate plan so that everything fits together — your insurance, your assets, your will, etc.
There may be unanticipated problems that you will need to consider if you add your adult child’s name to the deed to avoid the child’s having to go through probate. Thus, if the property is mortgaged, the lender may need to be informed and possibly agree, otherwise, you may run into problems with the lender if and when the lender becomes aware that you have added a new person on the deed. Since you didn’t say how many other people besides your child will be on the deed as owners, you may want to explore how the title is to be held. How property is titled may allow creditors to reach the person’s interest in the property. Furthermore, if title is held as tenancy in common, upon the co-owner’s death the interest held by the decedent will be inherited by his/her heirs and not the co-owners. If held as joint tenancy with right of survivorship, upon the death of the co-owner, the interest held by the decedent will revert to the co-owner, thus providing the co-owner with full ownership upon the last co-owner’s death. Some estate plans involve giving the parents a life estate with the remainder to the children on their death. Again, making these decisions should be done only in conjunction with a comprehensive and clear estate plan set up by an attorney.
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