A PUBLICATION OF THE MARYLAND JUDICIARYWINTER-SPRING 2010 vol. 13, no. 1
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 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—owning property in their sole name. The Orphans' Court is the court that nearly all citizens will have contact with at some point.
A person who has died is known in the Orphans’ Court as a “decedent.” When a decedent owns property that does not otherwise pass to a designated beneficiary such as with jointly owned property or property held in trust, 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. Maryland provides for an orderly process to transfer those assets. This process sometimes is referred to as “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 entirely disinherited.)
If the decedent dies without a will, that is, “intestate,” Maryland laws determine who has the highest priority to be appointed to administer the estate and inheritance decisions. 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 the 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 and periodic ‘administration accounts’ with the Register of Wills. Generally, most regular estates are wrapped up within nine to 18 months of the decedent’s death.
What do Orphans’ Court judges do?
Some estates proceed smoothly, and, other than seeing an 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. For example, Orphans’ Court judges may have to determine: the validity of a particular will or codicil (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 (if there is one).
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 disputes. However, due to the nature of the proceedings they handle, Orphans’ Court judges frequently become skilled in dealing with the emotions of grieving families.
If property is due to pass to a minor (in Maryland, someone under the age of 18) and there is no other procedure in place to protect the assets (such as a trust), the Orphans’ Court has jurisdiction to appoint someone as guardian of the 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. In certain situations a Guardian of the person of a minor may need to be appointed to care for the child, including making decisions regarding education and health care.
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.) Orphan’s 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.
* 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.