What Happens If You Die Without a Will in Maryland?

If you die without a will in Maryland, state law decides who receives your probate property, and the court follows a fixed formula rather than your wishes. This article is for Maryland families who are wondering what that formula looks like and why many people choose to put a plan in place instead.

What does "dying intestate" mean?

Someone who dies without a valid will is said to die "intestate." Maryland's intestacy rules, found in the Estates and Trusts Article of the Maryland Code, set out who inherits and in what shares. The Register of Wills in the county where the person lived oversees the process.

These rules apply only to property that passes through probate, the court-supervised process of settling an estate. Assets that already pass by beneficiary designation, joint ownership or a trust generally follow their own paperwork instead. We discuss one way that can go wrong in why payable-on-death and transfer-on-death accounts can fail your family.

Who inherits if there is a spouse and children?

The answer depends on who the children are. In general terms, under the rules that apply to deaths on or after October 1, 2023:

A spouse and at least one minor child: the spouse receives one-half of the net estate, and the children divide the other half.
A spouse and only adult children who are all also the spouse's children: the spouse generally receives the entire net estate.
A spouse and at least one adult child who is not the spouse's child (for example, from an earlier relationship): the spouse generally receives the first $100,000 plus one-half of the rest, and the children share the remainder.

Registered domestic partners are treated like spouses under these rules. The date of death matters, because the amounts and rules were different before October 2023.

What if there is no spouse?

If someone dies leaving children but no spouse, the net estate is generally divided equally among the children, with the children of any deceased child taking that child's share. If there is no spouse and no children, the estate generally passes to other relatives, beginning with the parents and then moving outward through the family.

We have left out the finer points of how those outer branches of the family are ranked, because they turn on details that vary a great deal from one family to the next. Those details are best reviewed with a lawyer who can look at the whole picture.

What the default rules cannot account for

Intestacy is a formula. It does not know your family, and it cannot reflect what you would have chosen. A few examples of what can get lost:

Unmarried partners who are not registered domestic partners generally do not inherit under the formula.
Stepchildren are generally not included unless they were legally adopted.
Minor children may receive their share through court-supervised arrangements rather than through a person you picked to manage it.
Charities and friends you care about receive nothing, because the formula looks only at family relationships.

Consider a hypothetical: imagine a parent of two young children who dies without a will. The formula decides how the estate is split between the surviving spouse and the children, and no one has named who should look after the children's inheritance or the children themselves. A short written plan could have answered those questions in advance. For more on that last point, see why naming guardians in your will is not enough.

Who handles the estate?

Without a will, no one has been named as personal representative, which is the person in charge of collecting assets, paying debts and distributing what is left. Maryland law sets a general order of priority for who may be appointed, and the Register of Wills makes the appointment. That can mean the person who steps forward is not the one the decedent would have trusted most, and relatives may disagree about who should serve.

Does a will avoid probate altogether?

Not necessarily. A will names who inherits and who serves as personal representative, but a will generally still goes through the Register of Wills for probate. What a will changes is who makes the decisions, not whether the court is involved. Some families add a revocable living trust or other tools to keep certain assets out of probate, and whether that makes sense depends on the assets and the goals involved.

It also helps to remember that a will only controls probate property. If an account names a beneficiary, or a home is titled jointly with someone, those arrangements usually win over what the will says. That is why we like to review a will and the underlying paperwork together, so the pieces point in the same direction.

Why do some families wait, and what can that cost?

Many people put off planning because it feels like a task for later, or because they assume the default rules will probably match what they want anyway. Sometimes they do. But the default formula cannot be adjusted for blended families, for a child who needs extra support, or for a relative you want to leave out or include. It also cannot name a guardian preference on its own or choose the person who will handle the estate.

Putting a plan in place is also something that can be revisited. Marriages, births, new homes and new businesses all change what a good plan looks like, so a plan written once is often reviewed again later.

How does a plan change the picture?

A will, and often other documents such as a trust, powers of attorney and updated beneficiary designations, lets you replace the default formula with your own choices. You can name who inherits, who serves as personal representative and who cares for minor children. Our estate planning page describes how we approach this, and our FAQ answers common questions about getting started.

Next steps

Every family's situation is different. To talk about yours, schedule a consultation or call (240) 502-1532. We welcome families in Howard, Anne Arundel, Montgomery and Prince George's counties and across Maryland.

This article is for general information only and is not legal advice. Reading it does not create an attorney-client relationship.