4.1 The Statute:
“§ 5-401. Nature of proceeding
Judicial probate is a proceeding instituted by the filing of a petition for probate by an interested person, or creditor, with the court for the probate of a will or a determination of the intestacy of the decedent, and for the appointment of a personal representative. The proceeding is conducted after notice as provided in § 5-403 of this subtitle, and is final except as provided in § 5-406 of this subtitle. If no petition is filed within a reasonable time the register may file it with the approval of the court.”
“§ 5-402. When mandatory
A proceeding for judicial probate shall be instituted at any time before administrative probate or within the period after administrative probate provided by § 5-304 of this title.
(a) At the request of an interested person;
(b) By a creditor in the event that there has been no administrative probate;
(c) If it appears to the court or the register that the petition for administrative probate is materially incomplete or incorrect in any respect;
(d) If the will has been torn, mutilated, burned in part, or marked in a way as to make a significant change in the meaning of the will;
(e) If it is alleged that a will is lost or destroyed.”
4.2 Triggering Judicial Probate
Judicial probate can be triggered by the Register if the petition for probate is materially incomplete or incorrect in any respect. It is also triggered if the will is torn, mutilated or marked up in a way to significantly change the meaning of the will.
It is also triggered by the right of an interested person. Interested person is a defined term: “The Estates & Trusts Article imposes limits on who has standing to file a petition for judicial probate: only “interested persons” and creditors may file such a petition. ET § 5-402. An “interested person” is defined by ET § 1-101(i) as:
(1) A person named as executor in a will;
(2) A person serving as personal representative after judicial or administrative probate;
(3) A legatee is being, not fully paid, whether his interest is vested or contingent;
(4) An heir even if the decedent dies testate, except that an heir of a testate decedent ceases to be an “interested person” when the register has given notice pursuant to § 2-210 or § 5-403(a).
And a “legatee” is defined as “a person who under the terms of a will would receive a legacy,” ET § 1-101(m), that is, “any property disposed of by will.” ET § 101(l). An heir, on the other hand, is defined as “a person entitled to property of an intestate decedent.” ET § 1-101(h).”
McIntyre v. Smyth, 159 Md. App. 19, 30, 857 A.2d 1235, 1241 (2004).
In McIntyre, children of a decedent filed for judicial probate. The will was accepted for probate which poured most assets to a trust. The children did not caveat the will. Thus, they were no longer interested persons as “heirs.”
In McIntyre, however, the children were left tangible personal property. The estate claimed there was no such property because the decedent had given the property to her children before her death. If this was true, of course, then the children would not be interested persons. The issue was held by the appellate court to be a question of fact so it reversed the lower court’s summary judgment for the estate. The court observed, however, if on remand the Orphans’ Court found that the children’s legacies were, in fact, adeemed then they had no right to demand judicial probate.
As noted above, persons such as trust beneficiaries as a real party or interest may also challenge administrative proceedings. (See Section 3.3 of these materials.)
Est. & Trusts § 5-207(b) holds that the filing of a petition for caveat has the effect of a request for judicial probate.