Maryland Petition for Probate

Introduction

Key Things to Know

1. 1

   Filing: a petition for probate (Estates and Trusts Article §5-301(a)), filed with the Register of Wills for the county of the decedent's domicile (§5-103). On the official form it is the Petition for Administration: Form 1112 (RW1112) for a regular estate with Schedule A, Form 1103 for a small estate, plus Form 1135 (Will of No Estate) and Form 1147 (Limited Orders). The Register of Wills form controls over any draft.

2. 2

   No one has authority over estate assets until the register appoints a personal representative and letters issue. Being named as executor in a will does not by itself allow anyone to collect assets, pay debts or transfer property. Do not distribute, pay heirs or sell estate property before appointment or before the creditor period runs.

3. 3

   Ask the Register of Wills about timing for offering a will. The person holding the will must deliver it to the register for the county where administration should be had, and a custodian who willfully fails or refuses is liable for damages (§4-203). If no petition is filed within a reasonable time, the register may file it with court approval (§5-401(c)).

4. 4

   The register appoints on the allegations in the petition, and the petition may proceed without prior notice (§§5-301(b), 5-302). Priority runs from personal representatives named in the will, then those nominated under a will power, then a surviving spouse (plus, if there is no will, a registered domestic partner and children), then residuary legatees, then a testate decedent's children who share in the estate and other relatives, down to the largest creditor and any other person (§5-104). Appointment is not guaranteed. A nonresident may not receive letters unless an irrevocable designation of a Maryland resident agent is on file, using Form 1106 (§5-105(c)(6)). Persons under 18 and those found mentally incompetent are barred.

5. 5

   Notice: within 20 days after appointment, the personal representative delivers the first published notice to the register and gives the names and addresses of heirs and legatees (§7-104(a)). The register has notice published once a week for 3 successive weeks in a newspaper of general circulation in the county, and the personal representative may also mail or deliver notice to known creditors to shorten the claims period (§7-103(a)).

6. 6

   Creditors: a claim is barred unless presented by the earlier of 6 months after the decedent's death or 2 months after the personal representative mails or delivers notice to the creditor (§8-103(a)). Small estates have a shorter 30 days after delivery under §5-603. Objections to appointment or to probate of the will have a separate time limit of 6 months from appointment, set by the published notice (§7-103(b)).

7. 7

   Bond is required by default for every personal representative, with a surety the register approves, unless the will expressly excuses it or all interested persons waive it in writing; a bank or trust company serving is not required to give bond (§6-102(a)). Lighter administration options: a small estate procedure (Form 1103) and modified administration by election within 3 months of appointment, limited to estates whose residuary legatees and heirs are certain tax-exempt persons, that are solvent and where all consent (§5-702). Both still run through the Register of Wills. Assets with a beneficiary designation, joint ownership with survivorship or a trust usually pass outside probate.

Maryland Requirements for Petition for Probate

• Petition Before the Register of Wills

  Administrative probate is started by a petition filed with the Register of Wills, asking to probate the will or determine intestacy and to appoint a personal representative (Md. Code, Est. & Trusts §5-301(a)).

• County of Domicile

  The petition goes to the Register of Wills for the county where administration should be had under the venue rule, generally the county of domicile (Md. Code, Est. & Trusts §5-103).

• Official Petition for Administration Forms

  The Registers of Wills publish Form 1112 (regular estate, with Schedule A) and Form 1103 (small estate, with Schedule B). The Register of Wills form controls over any draft.

• Will Custodian Must Deliver the Will

  After the testator's death, a person holding the will must deliver it to the register for the county where administration should be had. A custodian who willfully fails or refuses is liable for damages (Md. Code, Est. & Trusts §4-203).

• Order of Priority to Serve

  Priority begins with personal representatives named in the will, then those nominated under a will power, a surviving spouse (plus, if there is no will, a registered domestic partner and children), residuary legatees, a testate decedent's children who share in the estate and other relatives, down to the largest creditor and any other person (Md. Code, Est. & Trusts §5-104).

• Nonresident Needs a Resident Agent

  A nonresident may not receive letters unless an irrevocable designation of a Maryland resident agent for service of process is on file, using Form 1106 (Md. Code, Est. & Trusts §5-105(c)(6)).

• Notice After Appointment

  Within 20 days after appointment, the personal representative delivers the first published notice to the register. Notice is published once a week for 3 successive weeks (Md. Code, Est. & Trusts §§7-104(a), 7-103(a)).

• Creditor Claims Period

  Claims are barred unless presented by the earlier of 6 months after death or 2 months after the personal representative mails or delivers notice to the creditor (Md. Code, Est. & Trusts §8-103(a)); a small estate has its own, shorter period (§5-603).

• Bond Required by Default

  Every personal representative must give a bond with approved surety unless the will expressly excuses it or all interested persons waive it in writing. A bank or trust company serving is not required to give bond (Md. Code, Est. & Trusts §6-102(a)).