Frequently Asked Questions

If you have relatives not further distant than second cousins they will inherit under the District of Columbia laws of intestacy. If you have a spouse, the spouse will get two thirds and your children one third. If you have neither a spouse nor blood relatives your property will pass to the Government of the District of Columbia under the law of escheat.

If you are satisfied that under the laws of intestacy that your assets will pass to those you would want to receive your assets, then perhaps you do not need a will. But someone has to administer your estate, i.e. pay the bills, file the tax returns and distribute the assets. That person is called a Personal Representative or Administrator. If you have a will that person is known as a Personal Representative or an Executor. If you do not have a will the Court will appoint someone, usually someone who would inherit under the laws of intestacy, a person know as an heir to be the Personal Representative. Unless all the heirs are Co-Personal Representatives the Personal Representative will have to post a performance bond, the premium for which comes from the estate. This expense can be waived by a clause in the will.
If there is someone to whom you would like to make a gift (bequest) you would have to have a will. If you want to have a funeral that costs more than $ 5,000 you would have to have a will in which that limitation is waived. If a minor child, someone under the age of eighteen, is an heir, a formal court supervised guardianship would have to be established in order for the Personal Representative to be able to distribute the inheritance for the minor. If you have a will you can provide for a much less expensive and time consuming arrangement for the distribution.

In the District of Columbia such a document is called a Declaration. It is a statutory document that you may use to instruct your physicians when you are on death’s door not to keep you alive. It is not a document that you can alter from the statutory expression. If you have other ideas about how you would wish to be treated, particularly if you are not exactly at deaths door, but nevertheless could not communicate your wishes to the physicians you could execute a heath care power of attorney, called in other jurisdictions advance medical directive. In this document you can make pretty much any directions you might want.

The formal process in a court of law by which a last will and testament is determined to be valid and a Personal Representative appointed. Hence the will is said to be probated. In the District of Columbia that court is in the Probate Division of the superior Court of the District of Columbia. In Maryland the court is known as the Orphans Court and in Virginia probate is handled by the County Circuit out. In New York the court is called the Surrogate’s Court. The process of probate requires the filling of the blanks on a six page printed form called Petition for Probate, submitting any necessary bond, a form of Order and a Notice of Appointment which is published in two papers after the appointment of the Personal Representative. If the Will appears regular on its face the witnesses to the will neither must appear nor file affidavits of due execution.

If all your assets are held jointly with right of survivorship with another person who survives you that person will receive your assets by right of survivorship. If you place all your assets in a trust, revocable or irrevocable there will not be an occasion for probate because the assets are held in the trust by the Trustee. You can provide in the Trust for what is to happen to your assets after your death. The action is then carried out by the Trustee, who does not need to go to Court. You can provide that during your life you are the Trustee. But it is important that all assets that you wish to be in the Trust are in fact transferred to the Trust. So your checkbook is owned by you as trustee of your trust.