PARALEGALS HANDLING PROBATE 

Step 1: Determine the Personal Representative

1.1 Locate Estate Planning Documents

Definition

• Estate planning documents include the Last Will and Testament, Trust documents, Powers of Attorney, Healthcare Directives, and any Codicils (amendments).

Purpose

• These documents outline the decedent's wishes regarding the distribution of their assets and the appointment of a Personal Representative (executor).

Actions

1. Check the Decedent's Home: Search common storage areas such as desks, safes, and filing cabinets.

2. Safe Deposit Box: Obtain access to check for estate planning documents.

3. Estate Planning Attorney: Contact the attorney who may have prepared or holds copies of the decedent's documents.

4. Register of Wills: Check if the Will was filed with the Register of Wills before the decedent’s death.

1.2 Verify Appointment as Personal Representative

Named Personal Representative

1. Locate the Will or Trust and verify if you are named as the Personal Representative.

2. If you are not named, determine who is designated to serve in this role.

If No Will is Found

1. Refer to MD Est & Trusts Code § 5-104.

2. Understand that if no Will is located, the estate is considered "intestate," and the Maryland Intestate Rules dictate the order of priority for who can serve as the Personal Representative.

1.3 Understand Intestate Succession

Order of Priority

1. Surviving spouse and children equally.

2. Parents.

3. Siblings.

4. Other relatives if none of the above are available.

1.4 Tasks for Paralegals

Document Collection

1. Thorough Search: Perform a detailed search of the decedent’s home and safe deposit box for estate planning documents.

2. Attorney Contact: Reach out to the decedent’s estate planning attorney for any documents they may have.

3. Register of Wills Inquiry: Check with the Register of Wills to see if the Will was filed prior to the decedent’s death.

Verification Process

1. Review Documents: Examine the Will or Trust to confirm the named Personal Representative.

2. Intestate Situations: Refer to MD Est & Trusts Code § 5-104 and understand the order of priority for appointing a Personal Representative if no Will is found.

Communication

1. With the Attorney:

   • Provide regular updates about the progress of locating the documents.

   • Discuss any difficulties encountered during the search and verify the authenticity of documents found.

2. With the Client:

   • Explain the responsibilities of the Personal Representative.

   • Stress the importance of locating all estate planning documents.

   • Inform clients about the intestate process if no Will is found and the implications of intestate succession.

Forms

• Initial Stage: No specific forms required. Focus on locating and verifying the necessary estate planning documents.

Step 2: Locate and Secure Estate Planning Documents

2.1 Gather Information

Explanation

• Estate planning documents are critical as they contain the decedent's instructions for asset distribution and designate the Personal Representative.

Actions

1. Search the Decedent's Residence: Conduct a thorough search of the decedent's home to locate any estate planning documents.

2. Check with Financial Institutions: Contact financial institutions to determine if the decedent had a safe deposit box.

3. Contact Estate Planning Attorney: Reach out to the decedent's estate planning attorney to obtain copies of any estate planning documents they may have prepared or hold.

4. Verify with Register of Wills: Check with the Register of Wills to see if any estate planning documents were filed prior to the decedent's death.

2.2 Trusts and Probate

Explanation

• A Trust may not need probate if all assets are properly titled in the name of the Trust. Trusts manage assets and distribute them without the need for probate, offering privacy and efficiency.

Actions

1. Determine Trust Assets: Identify whether the decedent had a Trust and verify which assets were placed into the Trust.

2. Verify Trust Funding: Check the funding status of the Trust to ensure all intended assets were correctly transferred into the Trust.

2.3 Tasks for Paralegals

Document Collection

1. Residence Search: Perform a comprehensive search of the decedent’s residence for estate planning documents.

2. Safe Deposit Box: Coordinate with financial institutions to access and review the contents of any safe deposit boxes the decedent may have held.

3. Attorney Communication: Contact the decedent's estate planning attorney to request copies of any documents they have on file.

4. Register of Wills Inquiry: Verify with the Register of Wills if the decedent’s Will or any other documents were filed prior to death.

Trust Verification

1. Asset Identification: Identify the assets that were placed into the Trust and ensure they are correctly titled.

2. Funding Check: Verify the funding status of the Trust to confirm that all intended assets are included.

Communication

1. With the Attorney:

   • Provide regular updates about the progress in locating and securing estate planning documents.

   • Discuss any challenges faced during the search and confirm the validity of any documents found.

2. With the Client:

   • Explain the significance of each located document and its role in the estate planning process.

   • Educate clients about the purpose of Trusts and the benefits of avoiding probate for Trust-held assets.

   • Outline the subsequent steps to take once the documents are secured, including the verification of Trust funding and the probate process if applicable.

Forms

• Initial Stage: No specific forms required. Focus on locating and securing the necessary estate planning documents.

Step 3: Understand Intestate Succession

3.1 Overview of Intestate Succession

Explanation

• When a person dies without a Will, their estate is distributed according to Maryland's intestate succession laws. It is crucial to thoroughly understand and apply these laws to ensure proper estate administration.

Hierarchy of Intestate Succession

1. Surviving spouse and children equally.

2. If no surviving spouse or children, the estate passes to the decedent's parents.

3. If no surviving parents, the estate is distributed to the decedent's siblings.

4. The distribution continues through the family lineage following the order specified in Maryland’s intestate succession laws.

3.2 Actions for Paralegals and Attorneys

Refer to MD Est & Trusts Code § 5-104

1. Familiarize yourself with MD Est & Trusts Code § 5-104, which outlines the specific rules and order of priority for intestate succession.

Communicate the Hierarchy and Process to Clients

1. Client Meetings: During initial consultations, explain to clients the hierarchy of intestate succession and how the estate will be distributed in the absence of a Will.

2. Informative Materials: Provide clients with written materials that detail the intestate succession process and the specific hierarchy according to Maryland law.

Obtain Consents from Higher Priority Individuals

1. Consent Form RW1118: If necessary, obtain consents from individuals with higher priority using Form RW1118. This may be required to appoint a Personal Representative when the highest-priority individuals are unable or unwilling to serve.

2. Document and Verify: Ensure that all consents are properly documented and verified. Keep a record of these consents in the client file.

3.3 Detailed Tasks for Internal Team

Research and Verification

1. Genealogical Research: Conduct thorough genealogical research to identify all potential heirs according to the intestate succession hierarchy.

2. Verification of Heirs: Verify the identity and relationship of each heir through documentation such as birth certificates, marriage certificates, and other relevant records.

Client Communication

1. Initial Briefing: Brief clients on the intestate succession laws and the importance of identifying all potential heirs.

2. Regular Updates: Provide regular updates to clients on the progress of identifying and verifying heirs, as well as any necessary steps to obtain consents.

Documentation

1. Heir Information: Maintain detailed records of all identified heirs, including their contact information and relationship to the decedent.

2. Consent Forms: Ensure that all signed consent forms (RW1118) are collected, properly filed, and verified for authenticity.

Legal Preparation

1. Petition for Administration: Prepare and file a Petition for Administration with the Register of Wills, including all necessary documentation and consents from higher-priority individuals.

2. Court Representation: Be prepared to represent the estate in court, presenting the hierarchy of heirs and any consents obtained to secure the appointment of the Personal Representative.

3.4 Ensuring Compliance and Efficiency

Training and Review

1. Staff Training: Conduct regular training sessions for paralegals and attorneys on the specifics of Maryland’s intestate succession laws and the proper procedures for identifying and verifying heirs.

2. Quality Control: Implement a quality control process to review all documentation and consents for accuracy and completeness before filing with the court.

Coordination with Clients

1. Client Expectations: Set clear expectations with clients regarding the timeline and process of intestate succession.

2. Transparent Communication: Maintain transparent and open communication with clients throughout the process, ensuring they understand each step and any necessary actions on their part.

Step 4: Petition to Probate the Estate

4.1 Determine the Size of the Estate

Types of Estates

1. Will of No Estate: Estate with a value of $0.00 or less.

2. Small Estate: Estate with a value less than $50,000.00 (or $100,000.00 if left to the surviving spouse).

3. Regular Estate: Estate with a value over $50,000.00 (or $100,000.00 if left to the surviving spouse).

4.2 File the Petition

Actions

1. Complete and Submit the Appropriate Forms Based on the Estate Size:

   • Will of No Estate: Use Form RW1135.

   • Small Estate: Use Form RW1103.

   • Regular Estate: Use Form RW1112.

2. Attach Necessary Documents:

   • Death Certificate: This confirms the decedent’s passing and is required for all probate petitions.

   • Original Will: If available, the original Will must be submitted to validate the decedent’s wishes.

3. Appoint a Resident Agent:

   • Form RW1106: If the Personal Representative lives out of state, appoint a Resident Agent using this form. The Resident Agent acts as the in-state representative for legal and administrative purposes.

4. Obtain Bonds or Waive Bonds:

   • Form RW1115 (Bond of Personal Representative): If required, this form is used to secure a bond ensuring the Personal Representative faithfully executes their duties.

   • Form RW1117 (Waiver of Bond): If the bond requirement is waived, this form officially documents the waiver.

4.3 Purpose of Forms

1. Form RW1135 (Will of No Estate):

   • Purpose: Used when the estate has no assets or is valued at $0.00. This form helps to officially close the estate without further administration.

2. Form RW1103 (Small Estate):

   • Purpose: This form is for estates valued under $50,000.00 (or $100,000.00 for a surviving spouse). It simplifies the probate process for smaller estates, making it faster and less complex.

3. Form RW1112 (Regular Estate):

   • Purpose: For estates valued over $50,000.00 (or $100,000.00 for a surviving spouse). This form is used to initiate the full probate process, ensuring all assets are properly managed and distributed.

4. Form RW1106 (Appointment of Resident Agent):

   • Purpose: This form appoints an in-state Resident Agent when the Personal Representative resides out of state. The Resident Agent handles legal matters within the state on behalf of the Personal Representative.

5. Form RW1115 (Bond of Personal Representative):

   • Purpose: This bond provides financial security that the Personal Representative will fulfill their duties ethically and responsibly. It protects the estate and beneficiaries from potential mismanagement.

6. Form RW1117 (Waiver of Bond):

   • Purpose: This form is used when the bond requirement is waived, usually due to agreement among the beneficiaries or a court decision. It officially documents the waiver of the bond.

4.4 Detailed Tasks for Internal Team

Assessment of Estate Size

1. Asset Valuation: Conduct a thorough assessment of the estate’s assets to determine its value. Include all property, financial accounts, personal belongings, and any other assets.

2. Categorization: Categorize the estate as a Will of No Estate, Small Estate, or Regular Estate based on the total value.

Form Preparation and Submission

1. Accurate Completion: Ensure all forms are completed accurately with detailed information about the decedent and the estate.

2. Document Attachment: Gather and attach all necessary documents, including the death certificate and original Will, to the petition.

3. Resident Agent Appointment: If applicable, appoint a Resident Agent using Form RW1106 and ensure they are aware of their responsibilities.

Bonds and Waivers

1. Bond Acquisition: If a bond is required, use Form RW1115 to obtain it. Ensure the bond amount is appropriate and submit it with the petition.

2. Waiver Process: If the bond requirement is waived, complete Form RW1117 and document the waiver agreement among the beneficiaries or court order.

Communication

1. With the Attorney:

   • Provide regular updates on the assessment of the estate and the preparation of forms.

   • Discuss any issues or questions related to the estate size determination or form requirements.

2. With the Client:

   • Keep clients informed about the necessary forms, their purposes, and the reasons behind each step in the process.

   • Ensure clients understand the importance of signing all necessary documents and consents.

4.5 Ensuring Compliance and Efficiency

Training and Review

1. Staff Training: Conduct regular training sessions on the probate process and the proper completion of all required forms.

2. Quality Control: Implement a quality control process to review all completed forms and attached documents for accuracy and completeness before submission.

By following these detailed steps, our firm ensures a thorough and compliant approach to petitioning for probate, providing clear guidance and support to our clients throughout the process.

Step 5: Notify Interested Parties and Creditors

5.1 Notify Interested Parties

Actions

1. Create a List of Interested Persons:

   • Form RW1104: Identifies all individuals and entities with a potential interest in the estate, including heirs, beneficiaries, and creditors.

   • Explanation: Compiling this list ensures that all relevant parties are informed about the probate proceedings and their potential rights or claims against the estate.

   • Steps:

     • Collect contact information and relationship details for all potential heirs and beneficiaries.

     • Complete Form RW1104 accurately, listing each interested party.

2. Send a Notice of Appointment:

   • Form RW1110: Officially notifies the listed interested persons of the appointment of the Personal Representative and the initiation of probate proceedings.

   • Explanation: This notice informs interested parties of their right to be involved in the probate process and to contest the appointment if necessary.

   • Steps:

     • Prepare Form RW1110 with details of the Personal Representative's appointment.

     • Send the completed form to all individuals listed on Form RW1104.

3. File a Certificate of Service:

   • Form RW1285: Certifies that the notice of appointment (Form RW1110) has been served to all interested persons.

   • Explanation: Filing this certificate provides legal proof that all interested parties have been notified, ensuring compliance with probate procedures.

   • Steps:

     • Complete Form RW1285, documenting the service of notices.

     • File the certificate with the Register of Wills.

5.2 Notify Creditors

Actions

1. Publish a Notice of Appointment:

   • Form RW1109 (Small Estate) or Form RW1114 (Regular Estate): Notifies potential creditors of the decedent's death and the opening of the estate, providing them with an opportunity to file claims.

   • Explanation: Publishing this notice in a local newspaper ensures that all potential creditors are informed and can submit claims within the statutory period.

   • Steps:

     • Determine whether the estate qualifies as a Small Estate or Regular Estate.

     • Prepare the appropriate notice form (RW1109 for Small Estate, RW1114 for Regular Estate).

     • Publish the notice in a local newspaper for the required duration.

2. File the Notice with the Register of Wills:

   • Purpose: Filing the notice with the Register of Wills is a crucial step in the probate process, ensuring that the publication requirement is documented.

   • Explanation: This filing provides an official record that the estate has complied with the legal obligation to notify creditors, protecting the estate from future claims that were not submitted on time.

   • Steps:

     • After publication, obtain proof of publication from the newspaper.

     • File the notice and proof of publication with the Register of Wills.

5.3 Detailed Tasks for Internal Team

Preparation and Communication

1. Prepare Forms: