All About Estate Planning and Probate
In this post, I want to talk about estate planning and probate. These two areas of law are closely connected, and understanding how they work together is the key to making sure your wishes are carried out smoothly when the time comes.
Rather watch a video than read? Here’s me talking through all of this in detail!
Before we talk about estate planning, let’s start with probate, because it’s hard to know what you’re trying to avoid if you don’t know what probate really is.
Understanding Probate
What Is Probate?
Probate is the legal process of transferring assets that are in the name of a person who has passed away. In legal terms, that person is called the decedent.
The government doesn’t want assets sitting in the names of people who are no longer alive. A deceased person can’t maintain a house, pay a car note, or manage a bank account. Without someone alive to manage those things, property becomes abandoned or deteriorated, and the system steps in to move it along to the next rightful owner.
Probate ensures that those assets are properly identified, valued, and transferred, either to the heirs identified by law or to the people named in a valid will.
Common Misconceptions About Probate
A lot of people believe that if they die without a will, everything they own will “go to the government.” That’s not true. Property only goes to the state when it’s been completely abandoned (when no one claims it, no one knows where it is, or no one takes the legal steps to retrieve it).
Having a will is important, but it’s only useful if the people you leave behind know:
Where your assets are
Where your will is located
How to access it
For example, if your estate plan is locked in a safety deposit box that no one can open after you die, it won’t do much good.
The Importance of Planning for Incapacity
Most people plan for death but forget about incapacity (the time when you’re still alive but unable to handle your finances, medical decisions, or personal affairs).
That’s where powers of attorney come in.
A Power of Attorney (POA) authorizes someone to act on your behalf while you’re alive but incapacitated.
A Last Will and Testament gives someone the authority to manage your affairs after you die.
Both are essential, but they serve at different times. A power of attorney ends when you die, and a will begins at that point.
What an Estate Plan Really Is
At The Shore Lawyer, we don’t sell documents… we build estate plans.
A true estate plan is about:
Understanding your life circumstances
Knowing your values and relationships
Creating a custom strategy that transfers your legacy with minimal stress and conflict
For example, if a client wants to leave their house to one child and exclude others, a well-drafted deed is just one step. The real work lies in making sure that transfer can stand up to legal scrutiny decades later if other heirs contest it.
That’s why documentation, witness notes, and proper file retention are so important. Good estate planning lawyers think not only about the document today, but about how it will hold up in court 20 years later.
Why “Simple” Wills Aren’t Always Simple
People often say, “I just need a simple will.” But as soon as you mention things like disinheriting a child, things become anything but simple.
Disinheriting someone takes careful documentation, legal notes, and clear language to withstand a future challenge. Even if your decision is justified, your other heirs could face years of court battles if the paperwork wasn’t done properly.
Even if you’re leaving everything equally to your children, there are still questions to address: who will handle your finances, who will pay your bills, and how will your estate be settled efficiently and correctly?
The Probate Process, Step by Step
Let’s walk through how probate actually works, using Maryland as the main example (though Virginia’s process is similar).
1. Obtain the Death Certificate
Only certain family members can request a death certificate: spouses, children, or parents. Long-term partners and cohabitants are not recognized as legal next of kin in Maryland or Virginia.
2. Open the Estate
You’ll go to the Register of Wills (or the courthouse) and open an estate by presenting the death certificate and filling out paperwork.
You must identify all legal heirs, even if the deceased had a will. Legal heirs are entitled to notice and the opportunity to contest the will.
3. Notify the Heirs
Each heir must be notified by mail. If an heir has passed away, you’ll need their date of death and the names of their children (who now become heirs).
4. Post Bond and File Documentation
The personal representative (executor) must post a bond (essentially an insurance policy guaranteeing they’ll handle the estate properly). This can cost a few hundred dollars, depending on the estate’s size.
5. Identify and Value the Assets
Next, the executor must gather an inventory of everything owned by the deceased in their name alone. Joint accounts or accounts with “payable on death” designations typically skip probate.
Each asset must be valued as of the date of death, not months or years later. Banks can provide “date of death” balance letters for this purpose.
6. File Reports and Pay Debts
Maryland also requires an information report for assets that transfer outside probate, like joint accounts or payable-on-death designations, especially when those assets pass to non-family members (such as nieces, nephews, or friends), who may owe inheritance tax.
The executor then opens an estate account, collects all funds, pays debts and funeral expenses, and files an accounting with the court showing exactly what was received and paid.
7. Distribute Remaining Assets
After debts and expenses are paid, the remaining assets go to the heirs or beneficiaries. When everything is done, the estate is closed and the executor is released from their duties.
Why Probate Can Be Complicated
Probate isn’t inherently bad—it’s just slow, public, and tightly regulated. For families with conflict, it can actually be helpful to have court oversight. But for most families, it’s better to avoid probate when possible.
Avoiding probate saves time, money, and stress. It also keeps your personal information private, since probate filings are public record.
Ways to Avoid Probate
1. Revocable Living Trusts
A revocable living trust is one of the best ways to avoid probate. It allows you to:
Retain control of your assets while alive
Provide for your care if you become incapacitated
Direct who inherits what after you die, without court involvement
When you create a trust, you transfer ownership of your assets to the trust. You’re still the trustee, so you keep full control. When you die or become incapacitated, your chosen successor trustee steps in seamlessly.
Unlike a will, a trust isn’t filed in public court records. That means your financial details and family decisions stay private.
2. Testamentary Trusts
A testamentary trust is created by your will. It doesn’t exist until after your death and must go through probate before it’s funded. This structure can be useful if you want your estate supervised by the court, but the process of funding it can be more complicated and time-consuming.
3. Powers of Attorney
For incapacity planning, a strong power of attorney ensures someone can manage your finances if you’re unable to.
However, banks and institutions can be finicky about accepting powers of attorney. That’s why an experienced estate attorney constantly refines their language and form to anticipate objections. A revocable trust, by contrast, often makes incapacity transitions smoother since the successor trustee automatically gains authority through a revised Certificate of Trust.
Advantages of a Revocable Living Trust
Avoids probate entirely for assets titled in the trust
Simplifies incapacity management without court involvement
Provides privacy, since it’s not a public record
Allows flexible, customized instructions for your beneficiaries
Reduces risk of family disputes and unnecessary delays
Your trust also includes a pour-over will, which acts as a safety net for any assets you forget or choose not to place in the trust during your lifetime.
Why Work With an Estate Planning Attorney?
A comprehensive estate plan is a system designed to protect your loved ones from stress, confusion, and legal battles.
At The Shore Lawyer, we combine high-quality, trained planning and execution. By walking with clients through probate as well, we see firsthand what works and what doesn’t. Every real-world complication we solve also makes us better planners.
We help you anticipate issues you might never have thought of, so that your family doesn’t have to struggle with them later.
Your peace of mind is worth planning for.
Life is unpredictable. We can’t control when it ends, but we can control how our affairs are handled when it does.
Whether you need a basic will, a full estate plan, or guidance through the probate process, The Shore Lawyer is here to help you and your loved ones navigate it with confidence and clarity.
If you’re ready to create or update your estate plan—or just want to understand your options—contact us today to schedule a consultation.
