Orphans’ Court: What is it and what does it do?
By Baltimore County Orphans’ Court Judge Theresa Lawler
While it has a long history of serving Maryland’s citizens since before the beginning of our nation, the Orphans’ Court remains a mystery to most people.
It may be the name that confuses people. “Orphans’ Court” is simply the historical name for a court that handles Wills and estates. Its name derives from the old City of London’s Court for Widows and Orphans. Lord Baltimore brought this court system to his colony, and in 1777 the Maryland General Assembly formally established an Orphans’ Court and Register of Wills in each county and the City of Baltimore. That structure still operates today.
The Orphans’ Court
The Maryland Orphans’ Court is the state’s probate court. It also has jurisdiction over guardianships of minors. In simpler terms, the main job of the Orphans’ Court is to supervise the handling of estates of people who have died – with or without a Will – while owning property in their sole name.
A person who dies is known legally as a “decedent.” When a decedent owned property that does not otherwise pass to a beneficiary as a result of operation of law such as jointly owned property or property held trust (such assets are sometimes referred to as “probate” assets), an estate must be opened. The estate might consist of a car, boat, jewelry/heirlooms, cash, bank accounts, stocks, bonds, various types of business interests or real estate. The value of the estate may be just a few hundred dollars or it may be several million. The point is that when a decedent dies owning assets that do not otherwise automatically pass to the decedent’s beneficiaries or heirs, Maryland laws provide for an orderly process to transfer those assets (this process sometimes is referred to as “the probate proceedings”).
When a person dies with a Last Will and Testament, that Will must be filed with the Register of Wills’ office in the county or city where the decedent had lived. The Will generally names the person who will handle the decedent’s final affairs and lists how beneficiaries are to receive distributions from the estate.
(An interesting fact: Under Maryland law, someone can disinherit his or her child, but a surviving spouse cannot be disinherited.)
If the decedent dies without a Will, that is, “intestate,” Maryland laws provide who has the highest priority to be appointed to administer the estate and who is entitled to inherit in what amounts.
Whether or not there is a Will, when there are probate assets (assets in the decedent’s sole name), a person – referred to as a personal representative – must be appointed to administer the estate. The personal representative is responsible for identifying the decedent’s assets, making sure that valid final debts, administration expenses and taxes are paid from the estate, and that remaining assets are distributed to the proper beneficiaries if there is a Will, or to legal heirs if there is no Will.
Some estates may qualify for a streamlined procedure called “modified estate administration.” In other situations* the estate may qualify for a “small estate proceeding,” which allows the estate to be closed quickly.
In all other estate proceedings (“regular estates”), a personal representative must file an inventory with the Register of Wills. This inventory is a list that includes the nature and value of the probate assets. Within nine months of his or her appointment, the personal representative must file an administration account to show what the decedent owned at death, what was received since death, what payments were made from the estate, and what distributions are expected to be made to the beneficiaries or legal heirs. After that, an administration account must be filed every six months until the estate is closed. Generally, unless there is litigation involved or real estate needs to be sold, most estates are able to be wrapped up within nine to 18 months of the decedent’s death.
Orphans’ Court Judges
Orphans’ Court judges are responsible for approving administration accounts, making sure that only appropriate payments are made from estate assets and that distributions are made to the proper beneficiaries or heirs. Generally, payment of attorney’s fees or personal representative’s commissions made from estate assets must be approved by the Orphans’ Court.
Three Orphans’ Court judges sit in the City of Baltimore and each of Maryland’s counties, except Harford and Montgomery counties. (In those two counties, Circuit Court judges sit as Orphans’ Court judges.) Orphans’ Court judges run for general election every four years. Maryland’s Constitution requires Orphans’ Court judges to be Maryland citizens and residents of their jurisdiction for at least 12 months before their election, but the state Constitution does not require Orphans’ Court judges to be lawyers. Currently approximately one-third of the Orphans’ Court judges are attorneys and two-thirds are lay judges.
Some estates proceed smoothly, and, other than seeing the Orphans’ Court judge’s signature on various estate documents, a personal representative and/or beneficiaries or heirs may have no direct contact with the Orphans’ Court judges.
In other estates, however, disputes arise, and then Orphans’ Court judges hold formal hearings. Examples of reasons for formal hearings include when the Orphans’ Court has to determine: the validity of a particular Will or Codicil (which is an amendment to the original Will); proper beneficiaries or heirs and/or amounts to be distributed to them; who should be appointed personal representative; whether to remove a personal representative who has not properly carried out his or her duties; or what claims (and amounts) may be paid from the estate. Sometimes there are disputes concerning payments to be made to the personal representative or estate attorney.
In formal hearings, the Orphans’ Court judges – like any other trial court judges – must consider the evidence submitted (including testimony) and apply the appropriate Maryland laws in order to resolve the dispute. Orphans’ Court judges frequently become skilled in dealing with the emotions of grieving families.
If a distribution from an estate is due to be made to a minor and there is no other procedure in place to protect the assets until the minor reaches the age of 18 (such as a trust), the Orphans’ Court has jurisdiction to appoint someone as guardian of the person and/or property of the minor. In such cases the guardian is under the supervision of the Orphans’ Court and where the assets due to the minor are $10,000 or more, the guardian must file annual reports with the Orphans’ Court.
*If the value of the estate assets is $50,000 or less if passing to a surviving spouse or $30,000 or less if passing to someone other than a surviving spouse