The most common estate planning conversation Grant, Riffkin & Strauss, P.C. has with Montgomery County clients begins with some version of the same statement: “I already have a will, so I think we’re covered.” It’s an understandable assumption. Getting a will drafted feels like a decisive, responsible act – one that signals you’ve thought about the future and taken steps to protect your family. The problem is that a will, standing alone, addresses only a narrow slice of what a complete estate plan actually covers. It does nothing for you while you’re alive and incapacitated. It doesn’t govern a significant portion of most people’s assets. And when it does apply, it typically requires your family to go through a court process before anything can happen. For Rockville and Montgomery County residents beginning to think seriously about estate planning – or revisiting a plan that hasn’t been updated in years – understanding what a will actually does and doesn’t do is the essential starting point.
What a Will Actually Governs
A will disposes of your probate estate – the assets that are titled solely in your name with no designated beneficiary. For many people, that category is smaller than they assume.
Your retirement accounts (IRAs, 401(k)s, 403(b)s) pass by beneficiary designation, not by will. Life insurance proceeds go to whoever is named on the policy, regardless of what your will says. Bank accounts with a joint owner or a payable-on-death designation, investment accounts with a transfer-on-death designation, and real property held as joint tenants with right of survivorship all transfer outside of the will entirely. The will doesn’t touch them.
This means that for a significant share of Montgomery County homeowners – people who own their primary residence jointly with a spouse, carry substantial retirement savings, and maintain life insurance – the actual probate estate subject to the will may represent a fraction of their total net worth. A will carefully drafted to divide assets equally among children may be largely irrelevant if the most significant assets are structured to pass directly to a surviving spouse by operation of law. The beneficiary designations on those accounts are doing the real estate planning work, for better or worse, and they need to be reviewed with the same attention given to the will itself.
The Gap a Will Leaves During Life: Incapacity Planning
A will takes effect at death. It does nothing for the period, which can last years, during which a person is alive but unable to manage their own financial or health-related decisions due to illness, injury, or cognitive decline.
Without a durable power of attorney in place, a family member who needs to pay bills, manage investments, file taxes, or handle any financial matter on behalf of an incapacitated person has to petition the Circuit Court for guardianship. In Maryland, that process involves a formal petition, a physician’s certificate, notice to interested parties, and a court hearing. It takes time, costs money, and puts a court in the position of overseeing decisions that most families would far prefer to handle privately and efficiently.
A durable power of attorney designates an agent – typically a trusted family member or advisor – to act on your behalf in financial matters if you become unable to do so. “Durable” means it remains effective even after incapacity, which is exactly the circumstance in which you need it. This is a foundational document in any estate plan, and it’s entirely separate from a will.
Health care decisions present the same issue. Maryland’s Advance Directive allows you to designate a health care agent who can make medical decisions on your behalf and to specify the treatment preferences you want followed in circumstances where you cannot communicate them yourself. Without an Advance Directive, those decisions may fall to family members who disagree with each other, or to the default procedures a medical institution follows when no authorized decision-maker has been identified. The stress this creates for families navigating a serious illness is significant and avoidable.
Maryland Probate: What It Involves and When It Can Be Avoided
When an estate does have probate assets – property that passes under the will – the Maryland probate process runs through the Register of Wills in the county where the decedent lived. In Montgomery County, that’s the Office of the Register of Wills in Rockville. The process involves filing the will and a petition, notifying creditors through publication, paying valid debts and taxes, and ultimately distributing the remaining assets to beneficiaries under court supervision.
For simple estates, Maryland’s small estate procedures can streamline the process somewhat. For larger or more complex estates, formal administration takes longer and involves more oversight. Either way, probate is a public process – the will and inventory of estate assets become part of the public record – and it imposes both time and administrative cost on the estate and its beneficiaries.
The situations in which probate is avoided or minimized with good planning: assets with beneficiary designations pass directly, joint tenancy property passes to the survivor, and assets held in a revocable trust bypass the probate process entirely. A revocable trust, sometimes called a living trust, holds title to assets during the grantor’s lifetime and provides for their management during incapacity and their distribution at death – all without court involvement. Whether a revocable trust makes sense depends on the complexity of the estate, the types of assets involved, privacy considerations, and the family circumstances. It’s not necessary for every client, but for many Montgomery County families it’s the right tool.
The Outdated Plan Problem
Estate plans become stale. A will drafted twenty years ago may name an executor who has since died. It may include provisions for minor children who are now adults. The beneficiary designations on retirement accounts may reflect relationships – a former spouse, a deceased parent – that no longer reflect the client’s intentions. The power of attorney may designate an agent who is no longer the right choice.
Maryland law has also changed. The Maryland Durable Power of Attorney Act was substantially revised in 2010 to standardize what powers an agent holds and what protections apply. Powers of attorney drafted under the prior framework may not function the same way under the current statute, and financial institutions sometimes decline to honor older documents. An estate plan that’s more than ten years old is worth reviewing with an attorney simply to confirm it still accomplishes what was intended.
Getting a Complete Estate Plan in Place With Grant, Riffkin & Strauss, P.C.
A complete Maryland estate plan typically includes a will, a durable power of attorney, an Advance Directive, and a review of beneficiary designations to confirm they align with the overall plan. For some clients, a revocable trust is also appropriate. The right combination depends on individual circumstances – the composition of the estate, family structure, specific concerns about incapacity, and privacy or probate-avoidance goals.
Grant, Riffkin & Strauss, P.C. works with individuals and families in Rockville and throughout Montgomery County on estate planning that is tailored to their specific situation rather than built from a standard template. If you have a will that hasn’t been reviewed in years, or no estate plan at all, contact the firm to schedule a consultation and understand what a complete plan looks like for your family.
