Archive for the ‘Estates & Trusts’ Category

Can I Enforce a Lien Against an Estate?

Think of this scenario: Somebody owes you $10,000. After trying, unsuccessfully, to work out a repayment plan, you decide to head to court. At the end of the hearing, the judge awards you a judgment for $10,000.  Time to celebrate, right?

Wrong. The monetary award is just the beginning of what can become a drawn-out collections process. A recent Maryland Court of Appeals decision just made the collections process slightly more tricky.

In Elder v. Smith, 412 Md. 288, 987 A.2d 36 (Md. 2010), the highest court in Maryland upheld a lower court ruling that a lien obtained after a property owner’s death is not entitled to the same treatment as a lien that attached prior to the owner’s death. In general, Maryland law prohibits the attachment or levy (lien) of estate property. This means that once a property owner passes away, a creditor cannot attach or secure a lien against the decedent’s property. However, Maryland law makes exceptions for interests that are secured prior to a property owner’s death. This court decision clarifies that secured claims may attach to property only while owned by an actual living person, and not an estate. In its decision, the court did not elaborate on the proper avenues for collecting on a monetary judgment from an estate.

Of course, it is impossible to predict when a person will pass away.  This recent court decision, however, provides just one more reason not to procrastinate when someone owes you money.  You must act quickly to protect your rights. If someone does owe you money, consult with an attorney to figure out how you may expedite the process to ensure your rights are secured prior to the debtor’s death.

Whether you are a personal representative of an estate, or trying to collect on a judgment against a deceased person, it is a good idea to consult with an attorney to determine the best method to protect your interests. We here at Delaney & Keffler, LLC will take the time to fully explain and discuss your options and so that you can feel confident in your decisions. Contact us today at 410-535-3476 (FIRM) or for a free consultation.

Will my Divorce Automatically Change my Will?

Many people wonder about the effect of a divorce on their will. Will your former spouse still be entitled to your grandmother’s fine china? Will your estate still be bound to donate $10,000 a year to your ex’s favorite charity?

Under Maryland law, a divorce automatically revokes all provisions in a will that relate to the former spouse. Following divorce, any benefits originally intended for the spouse will instead go to residuary beneficiaries. The law is a bit less clear about what will happen to any provisions in a will that benefit those related to a former spouse, or those that are listed as beneficiaries at the request of a former spouse.

In Friedman v. Hannan, 412 Md. 328, 987 A.2d 60 (2010), the highest court in Maryland affirmed a circuit court decision revoking provisions in a will that left all of a husband’s assets to his former wife and her family. The court held that under Maryland law, a divorce automatically revokes all provisions in a will that directly benefit a spouse, and may also revoke any provisions that are motivated by the marriage and relationships incident to the marriage. However, it is important to note that the court did not set forth any specific test or guidelines to determine whether a particular provision included in a will because of a former spouse’s relationship, or at the request of the ex-spouse, would automatically be revoked upon divorce. In such situations, a trial court would make a decision about the revocation of  a provision based on facts presented to the court at the time the will goes into effect.

If you get divorced, you have two options -

1. Make no changes to your will and hope for the best—There is no law requiring you to make any changes to your will following a divorce. Without revising your will, provisions leaving anything to your former spouse will automatically be revoked upon your divorce. Yet, if you decide not to change your will, it is possible that your estate will be bound to carry out the desires of your former spouse, as contained in your will. In the absence of revisions, your will may be challenged, and a trustee would have to present your wishes in a trial court, with the final determination in the hands of a judge.

2. Revise your will to ensure the proper beneficiaries—Following your divorce, you may wish to remove all references to your spouse in your will, as well as any provisions that benefit your former spouse’s family or interests. Even if you have residuary, or fallback, beneficiaries included in your original will, some simple revisions will clarify your wishes. Keep in mind that if you would like your former spouse to remain a beneficiary, you may need to revise your will so the provisions related to your ex-spouse are not automatically revoke

It is a good idea to consult with an attorney following a divorce, or any significant change in personal status, to determine whether you need to make changes to your will or any other beneficiary forms including (but not limited to) insurance policies and IRAs. We here at Delaney & Keffler, LLC will take the time to fully explain and discuss your options and so that you can feel confident that your wishes will be carried out by your will. Contact us today at 410-535-3476  (FIRM) or for a free consultation.

Advance Directive: What is it, and Why do I need one?

An Advance Directive (also called an Advance Medical Directive) is a binding legal document that helps to ensure that your wishes are carried our regarding your medical care. An Advance Directive is not a complicated document, however it provides your medical team with three key instructions:

 1. Appoints an agent to make health care decisions—In the modern era of health care privacy, HIPPA makes it very difficult to disclose medical information to anybody other than a patient. An Advance Directive allows you to appoint somebody you trust as your agent to make medical decisions on your behalf in the event that you are unable to make your own decisions. With an Advance Directive in place, your agent will have access to the medical information necessary to carry out your wishes. Your agent will only have access to HIPPA protected information in the circumstances you authorize in your Advance Directive.

2. Provides medical team with your instructions regarding desired medical care—An emergency situation can strike at any time. In some cases, you may be unable to discuss your medical care with the doctors in charge of treating you. For these situations, an Advance Medical Directive acts as your voice—instructing your medical team about lifesaving measures  (resuscitation, artificial nutrition, etc.) you would like to receive, and those which you prefer to forgo. It is important that you discuss your instructions with your health care agent so they can effectively assist the medical staff handling your care.

3.  Provides specific instructions for after your death—The death of a loved one is a difficult and stressful time, and unfortunately, many important decisions must be made quickly. With an Advance Directive, you can provide instructions to your agent on important topics such as organ donation, donation of your body, and funeral arrangements. You can provide very specific instructions regarding your funeral, or you can simply designate the person you would like to be responsible for making your funeral arrangements. By writing down your feelings on these very personal subjects, you will reduce the burden on your family in what can be an emotionally charged decision.

 An Advance Directive has serious and far-reaching implications. Although you do not need an attorney to create a valid Advance Directive, it is a good idea to consult with an attorney to fully understand all of your options. We here at Delaney & Keffler, LLC will take the time to fully explain and discuss your options so that you can have peace of mind that your Advance Directive will be your voice in these difficult situations. Contact us today at 410-535-3476 (FIRM) or for a free consultation.

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Delaney & Keffler was formed with the notion that attorneys should do more than draft legal documents and litigate disputes in court. First and foremost a good attorney will take the time to sit down and meet with a potential client to discuss that potential client’s individual needs, goals, fears, and limitations in order to determine what the best course of action for that individual client will be.