Waldorf, MD asked in Estate Planning and Probate for Maryland

Q: What is the necessary legal phrase or sentence to ensure that a handwritten will is acceptable/legal in Maryland?

Not the name, spouse, who gets what, how much but the finishing phrase or wordage that oks the handwritten will so it does not have to go to court to be approved).

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1 Lawyer Answer
Mark Oakley
Mark Oakley
Answered
  • Estate Planning Lawyer
  • Rockville, MD
  • Licensed in Maryland

A: A simple will is the cheapest most reasonable flat fee most lawyers charge, so please go to a lawyer for this basic necessity and insure that not only the will itself meets the necessary requirements to be legally valid, but also that the will actually distributes your assets how you would want. Unintended results are common with inexperienced will drafters, and you cannot fix the will once you're dead or become mentally incapable of doing so. There's more to a will than the correct signature and witness language. All that being said, the signature requirements are set forth in MD Code, Estates and Trusts, § 4-102:

(a) Except as provided in §§ 4-103 and 4-104 of this subtitle, every will shall be:

(1) In writing;

(2) Signed by the testator, or by some other person for the testator, in the testator's presence and by the testator's express direction; and

(3) Attested and signed by two or more credible witnesses in the presence of the testator.

(b) For purposes of this section, a witness is not in the presence of the testator if the witness is in a different physical location than the testator regardless of whether the testator can observe the witness through electronic audio-video or other technological means.

MD Code, Estates and Trusts, § 4-102 further requires that the person making the will be at least 18 years of age and is competent to do so. Most lawyers draft witness attestation clauses that recite and affirm all of the legal requirements set forth in the two foregoing statutes. However, simply getting the attestation clause and signing requirements correct is not all there is to drafting an effective will that carries out not only all of your intentions, but covers all those scenarios you do not intend but may occur in the future based on the many unknowns (e.g., persons predeceasing you that you name to receive all or part of your will, the mis-application, use and/or effect of the absence of such phrases as "per capita" and "per stirpes" in the disposition of your residuary estate). You also should have a discussion with the lawyer as to the effect of named beneficiaries on financial accounts, jointly titled assets, etc., which remove those assets from the estate and are not controlled by your will. You are urged to meet with a lawyer before making a will that is either not legally enforceable or that results in an estate distribution that is not what you intend or want.

Cedulie Renee Laumann agrees with this answer

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