What to do with a will where there are no assets or liabilities (MD)

June 25, 2013 8:59 AM

The decedent was a resident of Maryland and died in Maryland. All of his assets were held jointly with his wife, or else named her as sole beneficiary, and therefore pass by operation of law. He had no real estate, no car, and no personal property of any significant value. He had no liabilities (no credit card balances, mortgages, medical bills). He left a will, naming his wife as sole legatee. I see that filing a will with the Maryland Register of Wills is required. What's the downside to not doing so?

The Register's website says "A custodian who willfully fails or refuses to deliver a will to the register after being informed of the death of the testator/testatrix is liable to a person aggrieved for the damages sustained by reason of the failure or refusal." I can see a risk if it turns out that there are heirs or assets or liabilities that are now unknown, but I think the chances of that are vanishingly small. Is there any reason to go through the expense, in money and time, of probate, if there are no assets passing under the will?

I know that the answer to this one is "I am not your lawyer. Talk to a lawyer." I'd like some clear reasons about why to bother.

posted by Jasper Fnorde to Law & Government (8 answers total)

I can see a risk if it turns out that there are heirs or assets or liabilities that are now unknown, but I think the chances of that are vanishingly small.

That's what I thought when my father died. Memail me if you want to hear what my siblings and I have been up to since then.

What is the downside to just doing it?
posted by BibiRose at 9:04 AM on June 25, 2013 [2 favorites]

I'd like some clear reasons about why to bother.

Part - often the bulk - of a lawyer's job is issue-spotting. You shouldn't think of consulting with an attorney here as only a way to get specific answers on narrow points of law - you should think of it also as due diligence to be sure there aren't issues you've missed entirely.
posted by Inspector.Gadget at 9:11 AM on June 25, 2013 [1 favorite]

We thought my father had no liabilities. This did not turn out to be true.
posted by interplanetjanet at 9:13 AM on June 25, 2013 [1 favorite]

Part of the point of probate is to allow creditors and heirs time to make a claim. Otherwise the deceased family would have all kinds of motivation to keep the death quiet and keep the estate out of sight.
posted by COD at 9:36 AM on June 25, 2013 [1 favorite]

You admit it's a legal requirement. What's the downside of failing to fulfill any legal requirement? It may bite you in the ass someday if you get caught. Only a lawyer can advise on the likelihood of getting caught, or the potential damage to your ass.
posted by ubiquity at 9:48 AM on June 25, 2013

Why wouldn't the will be filed? If nothing else, it'll possibly help the widow when it comes to claiming Social Security benefits or his pension by formally, clearly, stating 'yep, he's gone'. And if Maryland is anything like here in Virginia, Probate Court will walk you through the whole thing; they're used to simple wills with non-lawyer executors.
posted by easily confused at 10:15 AM on June 25, 2013

Response by poster: If nothing else, it'll possibly help the widow when it comes to claiming Social Security benefits or his pension by formally, clearly, stating 'yep, he's gone'.

Nope, it's the death certificate that does that.

What is the downside to just doing it?

I'm guessing it will take dozens of hours, and nobody involved is in Maryland.
After further investigation, it looks like Maryland's fees are quite low if there's no assets. So we'll probably go ahead with the process, even though it doesn't look like there's much to gain.
posted by Jasper Fnorde at 6:24 AM on June 26, 2013

I'll be a little more specific about the downside in my case. There was no monetary problem in the long term, it all got straightened out eventually. But somebody came out of the woodwork 2 days before the deadline to file for probate and filed to have themselves made executor because we hadn't filed and they had a claim on the estate we didn't know about. And so I had to take off work and drive to an out of state courthouse that very day to fill out paperwork that I could have filled out earlier at my convenience.

In that state it wasn't a legal requirement to file and the estate lawyer had told us not to bother.
posted by interplanetjanet at 5:15 PM on June 26, 2013