Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a licensed Maryland attorney for advice specific to your situation.
Detailed Answer
In Maryland, some forms of real property ownership allow land and buildings to transfer automatically at death, bypassing probate. However, property held differently must go through probate to ensure the decedent’s wishes are carried out. Below is an overview of how automatic transfers work and why probate may still be required.
1. Joint Tenancy with Right of Survivorship
When two or more people own real estate as joint tenants with right of survivorship, upon the death of one owner, the surviving owner(s) automatically inherit the decedent’s share. No probate is required for that portion. Maryland case law recognizes this estate form.
2. Tenancy by the Entirety
Spouses may hold property as tenants by the entirety. This estate automatically vests full ownership in the surviving spouse when one spouse dies. See Md. Code, Real Prop. § 3-113.
3. Transfer on Death Deed
Since 2010, Maryland allows a Transfer on Death (TOD) Deed for real property. A valid TOD deed names a beneficiary who will inherit the property upon the owner’s death without probate. The deed must be recorded before death under Md. Code, Est. & Trusts § 3-108.
4. Sole Ownership and Tenancy in Common
If real property is owned solely by a decedent or as tenants in common, no automatic transfer mechanism exists. Title to these interests remains in the decedent’s estate and must pass through probate. Maryland law requires that a personal representative be appointed to administer such property under Md. Code, Est. & Trusts § 7-101.
5. Why Probate Is Necessary for Some Property
Probate is the court-supervised process to:
- Verify the decedent’s will (if one exists).
- Identify and inventory estate assets that are not transferred by operation of law.
- Pay debts, taxes, and final expenses.
- Distribute remaining assets to beneficiaries under the will or, if there’s no will, under Maryland’s intestacy statutes.
Without probate, there is no clear legal authority to transfer title or close bank accounts holding estate funds. Probate ensures creditors are paid and rightful heirs receive property according to law or the decedent’s instructions.
Helpful Hints
- Review how your property is titled. Joint tenancy, tenancy by the entirety, and TOD deeds can avoid probate.
- Ensure TOD deeds are properly recorded before death to be effective.
- Consult an attorney before adding joint tenants—this may have tax or creditor implications.
- If you own property in your individual name, plan for probate by drafting a will and naming a personal representative.
- Use Maryland’s small estate summary procedure if the estate value qualifies, which can simplify probate.