In Maryland, probate can be initiated via administrative probate or judicial probate. In administrative probate, the proceeding is initiated by an interested person with the Register of Wills for the appointment of a personal representative and for the probate of a will, or the determination of intestacy of the decedent.
In judicial probate, the proceeding is conducted by the Orphans' Court, instead of the Register of Wills, when the situation prohibits administrative probate because the validity of the will is questioned, the will is damaged, or more than one qualified person applies for personal representative. Once the probate process begins, administration of the estate can proceed as a small estate, modified estate or regular estate.
A small estate administration is the estate procedure for a decedent who owned probate assets with a gross value of $50,000 or less (or $100,000 or less if the sole heir or legatee is the surviving spouse).
Modified administration is a streamlined version of administrative probate available to the personal representative in estates where the decedent died on or after October 1, 1997. In lieu of an inventory and an account, the personal representative is required to file a final report within 10 months from the date of appointment.
A regular estate is the procedure for a decedent who owned probate assets with a gross value in excess of $50,000, or in excess of $100,000 if the sole heir or legatee is the surviving spouse.
Opening an Estate
You file a Petition for Administration with the necessary supporting documents in the county in which the decedent had his domicile at the time of death.
If there is a will, the person or persons named in the will have the highest priority. If there is no will, the surviving spouse has the highest priority. After the surviving spouse, adult children may serve. Some people are expressly excluded from serving as personal representative including those under the age of 18 years old; the mentally incompetent, some convicted felons and non-citizens.
After the death of a person, the person having custody of the will should present the will to the Register of Wills. If the person having possession of the will is the nominated personal representative, they should call the office prior to arrival to determine if additional requirements may be applicable.
A custodian who willfully fails or refuses to deliver a will to the register after being informed of the death of the testator is liable to a person aggrieved for the damages sustained by reason of the failure or refusal.
If the assets are titled in the decedent's name alone and the amount of any asset is unknown, you can file a Petition for a Limited Order to authorize the disclosure of the values of assets titled in the sole name of the decedent. This Order will not authorize the transfer of any assets. The limited order to locate assets is not necessary if a determination can be made that estate will be opened as a regular estate. The issuance of this order is intended for the use of the person with priority to serve as personal representative.
If the decedent had a will, the personal representative must distribute the property according to the provisions in the probated will subject to any family allowance.
If the decedent did not have a will, the personal representative must distribute the net estate to the heirs in the order prescribed by Maryland law.