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Which estates need to go through the court probate process?

Law Offices of Yu & Associates

The court probate process is a complicated proceeding for distributing estates, but some estates do not need to be distributed through a probate proceeding and can be passed directly to the beneficiaries. These properties include:

  • Property placed in living trusts
  • Life insurance payouts
  • Assets in an IRA, 401(k) or other retirement account with the beneficiaries
  • Assets in transfer on death accounts
  • Jointly owned property with joint tenancy of survivorship or tenancy by entirety

These assets do not need to be distributed in a will or probate by a court, but other estates may have to be distributed through probate. It will also depend on whether there is a will and whether the will is valid. In Maryland, a will needs to be signed by the testator in the presence of two witnesses, and both witnesses must sign at the same time. In the case of a will, the court needs to prove that the executor appointed in the will is alive and willing to undertake the matters stipulated in the will, and the court also needs to prove that the will is the last will of the testator. The task of the court is to confirm the validity of the will before starting the probate process.

In the case of intestacy, the distribution of the estate also needs to go through the court probate process based on the intestacy law. Maryland's intestacy laws will determine who will inherit the decedent's assets. When a valid will does not exist or in the absence of a will, it is necessary to consult a lawyer to ensure the successful completion of the probate process.

Generally, in Maryland, where there is no will and the estate needs to be distributed according to intestacy laws, the estate is distributed to the spouse depending on whether there are minor or adult children, parents, etc. For the detailed intestate distribution scheme, please refer to the following chart:

If the decedent... Distribution scheme
has children but no spouse Children inherit everything
has a spouse but no living parents or children Spouse inherits everything
has a spouse and children who are minors (under 18) Spouse inherits 1/2 of intestate property; and children inherit everything else.
has a spouse and descendants, but no minor children Spouse inherits first $40,000 of intestate property and 1/2 of the rest; and descendants inherit everything else.
has a spouse and living parents but no descendants If the spouse and the decedent have been married for less than 5 years
  • Spouse inherits first $40,000 and 1/2 of the rest; and
  • Parents inherit everything else.

If the spouse and the decedent have been married for at least 5 years, then spouse inherits everything.
has parents but no spouse or descendants Parents inherit everything.
has siblings, but no spouse, descendants, or parents Siblings inherit everything.
has no lineal heirs All property goes to the State of Maryland.

The above is a general introduction, and should not be construed as individual legal advice. For specific legal questions, please contact the Law Offices of Yu & Associates. Tel: 301-838-8986, Fax: 202-595-1918; E-mail:, Address: 110 N. Washington St., Suite 328E, Rockville, MD 20850. (All rights reserved.)

Ó Yu & Associates LLC, 110 North Washington Street, Suite 328E, Rockville, MD 20850, USA. Tel: 301-838-8986