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ADMINISTRATION OF DECEDENTS' ESTATES

(MARYLAND)

BY

J. WALLACE BRYAN, LL. B., PH. D., C. P. A.

OF THE BALTIMORE BAR

LECTURE 1.

Introductory.

When a person dies, the surplus of his property, after his debts and the expenses of settling his estate have been paid, passes to: (1) The persons whom he has designated in his will, duly executed, or

(2) The persons whom the law designates in case he dies intestate—that is, without leaving a will.

The process of collecting and realizing upon the decedent's property, paying his debts, and distributing what is left among the persons entitled to receive it, is called administration. It is carried on under the supervision of a Probate Court, which is one having jurisdiction over the estates of deceased persons. The Probate Court in Maryland is the Orphans' Court of the proper county or of the city of Baltimore, according to the residence of the decedent at the time of his death.

The actual work of administration is performed by an executor named by the decedent in his will, or by an administrator appointed by the Orphans' Court if the decedent has died intestate or has omitted to name an executor, or if the executor is dead or unwilling, unable or disqualified to act. These officers are also called the personal representatives of the decedent.

Property Subject to Administration.

Property is either (1) Real, or (2) Personal.

Real property includes land and buildings, and things permanently affixed fo either, but not leasehold interests therein.

Personal property is movable property, such as money, clothing, jewelry, furniture, ships, stocks and bonds, mortgage debts, accounts

Copyright, 1920, by J. Wallace Bryan

receivable, notes and drafts. It includes also leasehold interests in land and buildings-that is, the interest of the person who pays rent on them. The interest of the person who receives the rent in virtue of his ownership of the fee is real property.

Administration is generally confined to the personal property of the deceased. The real property passes directly to those entitled under the will or by intestate succession, without any action by the Orphans' Court. The executor or administrator seldom has anything to do with it, except:

(1) To convey it in case the decesaed has contracted to sell it before his death; or

(2) To sell it when especially empowered by the will, or when authorized by the proper court in order to raise money to pay the decedent's debts; or

(3) To ascertain and pay inheritance taxes thereon.

The devolution of the property of an intestate person, or the validity and effect of a will, is governed, in the case of real property, by the law of the place where the proprety is situated; and in the case of personal property, by the law of the place where the owner had his domicile at the time of his death.

Jurisdiction of Orphans' Court.

There is an Orphans' Court in each of the counties of Maryland and in the City of Baltimore. It is composed of one Chief Judge and two Associate Judges (none of whom need be lawyers), elected for six year terms. The Orphans' Court for Baltimore City sits practically every day except Sundays. In the counties, the sessions are less frequent.

The Orphans' Court has generad jurisdiction over the estates of decedents and of infants under guardianship. It takes probate of wills and grants letters testamentary and of administration (as will be presently explained), directs the conduct and accounting of executors, administrators and guardians, and controls the investment and disposition of funds and securities in their hads. It has authority to pass upon all accounts and disputes between guardians and wards and between executors or administrators and beneficiaries, and to superintend the distribution of estates of intestates, secure the rights of orphans and legatees, and administer justice in all matters relating to the affairs of deceased persons.

The Orphans' Court is without jurisdiction over questions of title to property, and over money claims in dispute as between the estate and outside debtors or creditors; but it may, with the consent of both

parties, arbitrate such claims or refer them to a third party for examination and report.

The Orphans' Court is authorized to do what is essential for the effective exercise of its jurisdiction. It may compel the attendance and testimony of witnesses in any proceeding before it, and enforce obedience to all of its lawful orders and decrees. It may punish an executor, administrator or guardian for failure to perform his duties, or remove him and appoint some one else in his place.

With all its powers, however, the Orphans' Court is a court of special and limited jurisdiction, and cannot under pretext of incidental or constructive authority assume any power not directly conferred on it by statute. Appeals from its orders and decrees are taken to the Court of Appeals at Annapolis.

Register of Wills.

Each Orphans' Court has a Register of Wills, elected by popular vote. He is the chief clerical officer of the Court, and records all wills and other papers requried to be recorded and all orders and proceedings of the Court. He also makes out and issues the Court's process and orders. The number and compensation of his deputies and clerks are determined by the State Comptroller.

In the recesses of the Court, the Register of Wills receives inventories and accounts of sales, takes probate of accounts, examines vouchers and states guardians' and administration accounts, subject to review of and final passage or rejection by the Court. During such recesses he may also take probate of wills, grant letters testamentary or of administration, and pass any claim not exceeding $50.00 against the estate of a deceased person.

Execution and Revocation of Wills.

A will is a legal disposition of property, to take effect upon the maker's death. A codicil is a subsequent addition to or change in a will. The maker of a will is called a testator.

In Maryland, a person must be at least twenty-one years old, if a male, or eighteen years old, if a female, to make a valid will disposing of real property. In the case of personal property, the required ages are only fourteen years for a male and twelve years for a female.

At the time of making his will, a testator must be of sound and disposing mind, memory and understanding, and capable of executing a valid deed or contract. Subsequent mental infirmity of the testator does not affect a will validly made.

Undue influence or fraud practiced on the testator is fatal to the will, even though he is not mentally incapacitated.