Legal Question in Wills and Trusts in Maryland
Elect or not to elect
My friend was married for almost 18 years and recently lost his wife. Her will was never changed from her 1st marriage. She is survived by a son and her sister is the executor of the will. Of the two, (son and s-in-law)who is the surviving issue? The will doesn't directly state that the son will receive the estate.
Do you receive your one third share automatically if you do not ''elect'' to receive it or will he get nothing unless you ''elect'' your share? If he decides to pursue this to receive more than 1/3 share, what does he need to do?
Also, I found it interesting that when the estate was open, his attorney at that time called the decedent's family (step son and sister in law) in without him being present. Is that legal?
My friend is continuing to pay the mortgage, etc since it is in his name - should he discontinue paying and can he get the money he has put out back once the estate is settled?
1 Answer from Attorneys
Re: Elect or not to elect
Per Maryland law, unless a contrary intention is indicated in the will, issue means every living descendant and does not include a lineal descendent of a living descendant. This may sound complicated but essentially it says, for example, the following: Mary is a mother with a will, she dies and had born Alex and Harry. If Alex survives she gets half and if Harry died with two children each child get a quarter. Even though Alex may have children, they are not considered lineal descendants for probate of the will. This is known as representation per stirpes; however, THE WILL CAN STATE OTHERWISE and the result WOULD NOT BE THE SAME.
Unless adopted and notwithstanding any provision in the will to the contrary, a son-in-law is not considered "issue".
As to the share of the estate bequeathed to her issue, if any, I need to see the will.
As to a right to an elective share, this is done outside of the will under intestate succession, and this is all done in lieu of the provisions of the will. AGAIN, THIS MAY OR MAY NOT BE THE CASE BASED ON THE SPECIFIC WORDING OF THE WILL. A spouse electing a statutory share does not get any more than 1/3 if there is surviving issue and 1/2 if there is no surviving issue. This is complicated and per stirpes comes into play. Assistance of an attorney is HIGHLY suggested.
The right to an elective share must be done in accordance with Maryland law and specific form applies as well as process. Maryland rules are quite specific in this regard.
As to the attorney's actions in calling in the in-laws, I need to know more. On first blush, this does not appear proper. As to the mortgage, I also need to know more.
Hope this helps. If you think you need the assistance of an attorney, please feel free to contact me.
G. Joseph Holthaus III
(410) 799-9002
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