The Law Offices of Baldwin, Briscoe & Steinmetz P.C. can assist you with the many forms of estate planning.
Estate planning is one of the most important things you can do for yourself and your family, yet estate planning is generally not included at the top of a person’s priority list.
Creating the proper estate plan can make the difference between having a say in the swift and appropriate handling of your affairs when you pass or having a court administer your estate over a long period. Whether you are a young person with growing assets in need of estate planning advice, or just a person wishing to create or update your will, this section provides essential information to help you effectively plan your estate.
Estate planning starts with an analysis of your assets, liabilities, the present and future needs and desires of yourself or your loved ones, and considerations in the events of your or your loved ones’ incapacity.
Business Succession Planning
Make sure your business continues to thrive even after you are gone. Forming a business succession plan can help effect an orderly and affordable transfer of the business to the next generation or key employee. Failure to plan for orderly business succession can result in monetary losses and even the loss of the company itself. We can assist you in designing a comprehensive and fail-safe business succession plan.
Durable Power of Attorney and Statutory Power of Attorney
Make sure the decisions made for you are the right ones,s even if you can’t make them yourself. Creating a durable power of attorney gives an agent the right to act on your behalf if you become mentally incapacitated or otherwise rendered unable to make decisions and handle your affairs. If you want to give someone such authority, the best way is through a statutory durable power of attorney. Then, we can help ensure that you and your family are taken care of if something happens to you.
Will and Trust Preparation
Make sure your assets and children are taken care of. A Last Will and Testament is the proper way to ensure that your funds, property, and personal effects will be distributed according to your wishes after your death. Wills are essential for younger and older people alike. Having a Will is especially important if you have young children because it allows you to designate a guardian for them in the event of your death. Without a completed last Will and Testament, the court will appoint a guardian for your children. We can help ensure your assets go where you want and your children are cared for.
Living Wills & Advance Healthcare Directives
Make sure you have a say in your own healthcare decisions. A health care directive, also known as a living will, gives your family direction on the medical care you want if you are unable to communicate your health care decisions yourself. In addition, we can help you appoint another person to make health care decisions, leave written instructions so that other people make decisions based on your wishes, or do both.
Do Not Resuscitate/DNR Orders
Make sure you receive the medical treatment you want to receive. A Do Not Resuscitate order addresses the various methods used to revive people whose hearts have stopped functioning or breathing. This could include chest compressions, electric heat shock, artificial breathing tubes, and certain drugs. We can help you create a Do Not Resuscitate Order so that you can make your own health care decisions.
Make sure the estate of a loved one is collected and managed correctly. Estate administration involves gathering the assets of the estate, paying any debts the decedent may have incurred, and distributing the remaining assets. We can assist you in making sure the will of your loved one is carried out properly.
Personal Representatives and Special Administrators
When a person dies and does not have an executor of a will, the court can either appoint a special administrator until the family decides on a personal representative for the estate, or the court can appoint a personal representative for the estate. We at the Law Offices of Baldwin and Briscoe have experienced attorneys as both personal representatives and special administrators.
A personal representative is a person who is named in the will to settle the estate. This person or entity can be a friend, family member, bank, accountant, or even a practicing attorney. A huge amount of expertise goes into settling an estate. An appropriately drafted Last Will and Testament will nominate one or more personal representatives to administer the settling of the estate. If there is no will, if the will fails to name a personal representative or the personal representative named is unable or unwilling to serve, the court will appoint a personal representative.
Powers and Duties of Personal Representatives
Maryland Estate and Trusts §7-101 is the governing law that states what the duties of a personal representative are. A personal representative first begins his or her duties as a personal representative by receiving paperwork from the Orphans Court giving him the powers to settle the estate. The personal representative starts their job by making an accounting of the assets of the estate and submitting them to the Orphan’s Court. The next step as a personal representative of an estate is to check whether all the necessary taxes, mortgages and liens are paid on the estate. The final step as a personal representative is to distribute the remaining assets of the estate. According to Bates v. Gurley, a “‘personal representative must place the best interests of the heirs ahead of his own interests’” Bates v. Gurley, 948 A.2d 518, 527(May 2008); citing Md.Code Ann., Est. & Trusts § 7–101(a) (2008). In order for the personal representative to place the best interests of the heirs above his or her own interests, the personal representative must act according to what is written in the deceased’s will. According to Brewer v. Brewer, “[t]he personal representative has a fiduciary duty to ‘settle and distribute the estate of the decedent in accordance with the terms of the will and the estates of decedents law.’” Brewer v. Brewer, 386 Md. 183 (May 2005); citing Estates and Trusts Article, § 7-101(a).
How Personal Representatives are Removed
Maryland Estate and Trusts § 6-306 is the governing law that states how a personal representative can be removed from the position. There are six reasons why the court may remove a personal representative. They are:
- A misrepresentation, by the personal representative in the proceedings leading to his or her appointment.
- Where the personal representative willfully disregards an order of the court.
- Where the personal representative, regardless of fault, is unwilling or unable to discharge his duties and powers effectively.
- Where the personal representative has mismanaged property.
- Where the personal representative has failed to maintain on file with the Register of Wills, a currently effective designation of an appropriate local agent for service of process.
- Where the personal representative has failed, without reasonable excuse, to perform a material duty pertaining to the office.
Removal of the personal representative is always discretionary and the Court may choose not to remove a personal representative, even if it finds that appropriate cause exists which would warrant the removal. The court must hold a hearing before a personal representative can be removed. If the personal representative is removed, the court will appoint a new personal representative, and the personal representative being removed must turn over all property belonging to the estate that is in his possession.
Due to the amount of work a personal representative has to do, the personal representative is usually paid. Sometimes, the will sets out a dollar amount to compensate the personal representative for their work, if not, the probate court will generally award one.
Maryland Estates and Trust §6-403 explains the duties and responsibilities of a special administrator.
A special administrator shall collect, manage, and preserve property and account to the personal representative upon his appointment. A special administrator shall assume all duties unperformed by a personal representative imposed under Title 7, Subtitles 2, 3, and 5 of this article, and has all powers necessary to collect, manage, and preserve property. In addition, a special administrator has the other powers designated from time to time by court order. EST. & TRUSTS § 6–403.
To make this simpler, a special administrator has all the same duties a personal representative has, but cannot sell the estate without the permission of the court. According to Green v. Nassif, [a]lthough a Personal Representative generally has broad powers, the powers of a Special Administrator are limited to preserving and maintaining estate property, unless those powers are expanded by court order. Compare MD.CODE ANN. (1974, 2001 REPL.VOL.), EST. & TRUSTS § 6–403 with MD.CODE ANN., EST. & TRUSTS § 7– 401. For example, a Special Administrator cannot distribute property without court approval; however, a Personal Representative possesses such authority. MD.CODE ANN., EST. & TRUSTS §§ 6–403, 7–401. Green v. Nassif, 401 Md. 649 (November, 2007).
Therefore, a special administer typically only deals with property that has a monetary value. Boehm v. Harrington, 54 Md. App. 346, 458 A.2d 885 (1983). Special administrators are helpful because they preserve the estate and can perform most of the duties a personal representative are allowed to perform, in order to keep the division process of the estate moving forward. However, special administrators are only temporary, and are replaced once a personal representative is appointed to the estate.
Make sure you get your fair share of what is left to you. Probate litigation is a result of a contested will. A will can be contested if beneficiaries are not given an inventory of property, details about the creditors are not disclosed, or claims of undue influence are made. We can help you avoid disputes among family members, make sure all heirs receive what is rightfully theirs, and get the maximum benefit from the property.
Make sure your loved one’s estate is managed the right way. A will caveat and will contest are brought to challenge the validity of a will and can be filed at two points during the probate process. A will can be contested either before or after the will is admitted to probate. We can assist you with the process and ensure everything is legal and proper.
Make sure the elderly in your life are taken care of. Elder law covers all aspects of issues facing the elderly. It counsels and represents older persons, their representatives, and their families. Elder law deals with the legal aspects of estate planning, health, and long-term care planning, and public benefits. We can meet all the needs of you or your loved ones.
Tax Planning to Include Trusts: Marital Trusts, Bypass Trusts, & A/B Trusts
Make sure your taxes are done the right way. Tax planning is an integral part of your overall financial plan. If planned carefully throughout the year, the amount of taxes you pay can be reduced. Tax laws are complex and frequently change. We can help you achieve your financial goals by managing your taxes.
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