By AFRO Staff
We’ve all seen it- months, weeks, days- sometimes even hours after a loved one dies, the discussions of “who gets what” begins.
Tense conversations are bound to happen when there is no will in place and a parent, partner or young adult child is suddenly laid to rest. But filing a will does much more than just properly divvy up property according to grandma’s wishes.
According to the Office of the Register of Wills, “a will is a written document directing the disposition of a person’s assets after death.” If one is not in place at the time of death, the State does not automatically assume the property- but rather, they begin a search for the rightful heirs.
For Black people, creating a will is crucial in preserving and passing down intergenerational wealth.
Recently, the AFRO spoke with the Baltimore County Register of Wills, Alexis Burrell-Rohde (D-MD), about the importance of creating and filing a will, regardless of where you live.
Who should have a will in place?
Everyone should think about having a will. Wills aren’t only for old people.
Why do you need a will?
An important function of a will is the naming of a personal representative. A lot of times people refer to that role as the “executor,” in Maryland we say personal representative, but it’s the same thing. That’s the person who has a fiduciary duty to collect all estate assets, inventory the assets and distribute them according to the terms of the will.
They have a legal obligation and if they do not administer the assets properly they can be sued and personally liable if they do something wrong, illegal or steal money from the estate.
It’s really an important role. You name that person and possibly a backup to the personal representative.
Does the will address guardianship of minors?
Naming a guardian for minor children is the other important function of a will and that’s pretty important.
If you name a guardian in your will, they’ll have priority if you leave behind minor children with no other parent or adult to take care of them. The court really will look first to the person who’s named as the guardian in the will. If you don’t name a guardian in your will, then it’s left up to the court to decide, and that might not be the right person.
Who creates a will?
In a will, the “testator” is the word for the person who’s making the will. The testator is also able to write directives about what items are to be disposed of or how estate assets are to be distributed.
Who has to witness the will being signed?
Maryland law requires that the testator, again the person who wrote the will, sign the will. That signature has to be witnessed by two individuals who also signed their names on the will. A lot of times when people do their own documents, they don’t get all the witness signatures or they’ll change their mind and cross things out. Unless those cross-outs are witnessed by the same two witnesses, we can’t honor those cross-out changes and things like that.
That’s why it’s important to have an attorney draft your will. Make sure it’s done properly and so that your wishes really are carried out. Not creating the will properly can create confusion and additional litigation. It could also mean that your wishes are not carried out.
There is a partnership with Legal Aid of Maryland that can provide pro bono services for drafting wills. It’s income based and there are some income requirements.
Please visit the MD Legal aid website for more assistance – https://www.mdlab.org/
What kind of property can you direct in a will and how do you do that?
In a will you can distribute all of your tangible, personal property. That basically means your items that don’t have a title, like jewelry and family heirlooms. Generally, every asset that is titled in your name or held by you in your individual name can be distributed under the terms of the will.
What is the difference between probate property and non-probate property?
Non-probate property is a property that doesn’t pass under the terms of your will. These are things such as jointly held assets they pass outside of probate and not under the terms of your will.
Jointly owned property, 401K funds, IRA accounts, and insurance policies with a beneficiary named are all non-probate.
How does the Black community fare when it comes to being prepared with a will?
Seventy percent of White people have a will, while 30 percent of Black people have a will.
How much does it cost to file a will?
Once the will is drafted and executed, you can drop it off in the Office of the Register and for a fee of $5 we will store the document indefinitely in our fireproof, waterproof safe. We have a huge vault where we store tens of thousands of wills. One of the advantages of that is if you move your will stays in the same place. If you are incapacitated later in life, your will won’t disappear by a relative that was cut out of your will.
It’s amazing how a will disappears when people don’t like the provisions in the will for self-serving purposes. If you file it, you can be sure it’s in a safe place.
Who will read my will after it is filed?
Our office doesn’t look at the wills. It’s completely confidential and only the person who drafted the will is able to look at it and remove it from that vault. It’s a very secure place, which means that your will is safe. When you pass it on it will be put on record and the terms will be followed by your personal representative or family members.
How does creating a will and keeping the property in the family increase generational wealth, as opposed to liquidating assets and receiving money at the point of sale?
Most of us, me included, have credit card bills. That money would just go to expenses. The money would be used and it won’t grow. There won’t be the time value of money as there would have been if it was still sitting in a piece of real property that appreciated year after year after year.
That’s a common scenario. I’ve seen it before, but if a $200,000 home were passed down to the surviving spouse and further appreciated in value on the surviving spouse’s death, it could continue to be passed on to appreciate in value until it was sold. At that point, it could be worth maybe $400,000.
A family that liquidates property will lose the time value of money for that piece of real property, which is potentially worth another $200,000.
Not doing estate planning can really negatively impact a family’s ability to pass down generational wealth.
How does it impact your family if you don’t have a will?
Not having a will can cause confusion and generate legal fees if you have to hire a lawyer to fight in court. It also creates a lot of stress if you’re going to court to fight over these things without a lawyer. That’s another really important reason to have documents in place.
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