The Insolvent Estate (Select Topics from the Maryland Perspective)

Articles

Estate Planning Articles

Revocable Inter Vivos Trusts

1. General Considerations
2. The Taxation of Funded Revocable Trusts
3. Trusts as Designated Beneficiaries of IRA’s (and Qualified Plans)
4. Non-Tax Distinctions

Boilerplate Provisions The Impact of Certain “Standard” Will Provisions

1. Tax Clauses
2. Investment Powers
3. Spendthrift Provisions
4. Powers of Appointment
5. Exculpatory Clauses

A Match Made In Heaven: Using Tenancy by the Entirety for Creditor Protection Without Sacrificing Estate Planning

1. Maryland Entireties
2. Maryland Disclaimers
3. Federal Tax laws and the 1997 Regulations
4. The 75% Basis Step-Up Rule
5. The Planning Opportunity

Resisting the Contractarian Insurgency: The Uniform Trust Code, Fiduciary Duty, and Good Faith in Contract

1. Overview of Fiduciary Relationships
2. The Evolution of Fiduciary Duty and the Theoretical Case for Trust as Contract
3. Good Faith and the Nature of the Trustee’s Duties at Common Law
4. Good Faith in Contract
5. The Application of the Good Faith in Contract Standard to Partnerships
6. Conclusion

The Estate Planning Implications of Stripping Fiduciary Duty from the Uniform Partnership Acts in Maryland and D.C.

1. Background
2. The Estate Planning Implications
3. The Stripping Out of Fiduciary Duty
4. The “New” Uniform LLC Approach: Fiduciary Duty Restored
5. The Maryland/D.C. Experience

Overview of Family Limited Partnerships

1. Tax Benefits of Family Limited Partnerships In General
2. Non-Tax Benefits of Family Limited Partnerships
3. Special Rule Regarding Portfolios

Estates & Trusts 101: Planning for Minor Children

1. Introduction
2. Guardianship
3. Visitation Rights by Grandparents and Others
4. Managing the Financial Resources

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Estate & Trust Administration Articles

The Terms of the Trust: Extrinsic Evidence of Settlor Intent

1. The Plain Meaning Rule
2. The Dead Man’s Statute
3. The Hearsay Rule

A Beneficiary’s Right to Information

1. Introduction
2. Distributions and Trustee Discretion
3. Right to Information

The Insolvent Estate (Select Topics from the Maryland Perspective)

1. Creditors and Non-Probate Assets
2. Probate Creditors

Duties of a Personal Representative

1. Introduction
2. The Duty of Loyalty
3. The Duty of Prudence
4. Preserving the Assets
5. Conduct in Investing
6. Maintaining Accurate Records
7. Duty Not to Delegate
8. Timeliness
9. Powers of a Personal Representative

Selected Issues Regarding the Orphans’ Court Jurisdiction

1. General Background
2. Limited Jurisdiction – History
3. Limited Jurisdiction – Statutory Framework
4. Kaouris – Jurisdiction to Construe Written Documents
5. Issues
6. Proceedings in Multiple Courts

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Asset Protection Articles

Asset Protection: An Overview for Maryland Estate & Trust Lawyers

1. Introduction
2. Potential Risk to the Lawyer
3. Fraudulent Conveyance Act
4. Bankruptcy Reform
5. Tenants by the Entirety
6. Self Settled Trusts
7. Third Party Spendthrift Trusts
8. Powers of Appointment
9. Discretionary Trusts
10. Limited Liability Entities
11. Special Post-Mortem Issues
12. Probate Creditors

Asset Protection and Tenancy by the Entirety

1. The Historic Roots and Development of Tenancy by the Entirety
2. State Variations
3. Tenants by the Entirety and Bankruptcy
4. Drye and Craft: Federal Tax Liens Trump State-law Rights
5. Planning in Full Bar Jurisdictions: Post Judgment Transfers and/or Disclaimers in Full Bar Jurisdictions Appendix

Choice of Law: Tenancy by the Entirety Across State Lines

1. Introduction
2. “Restatement” (Classification)
3. “Immovables” (Real Estate)
4. “Movables”
5. “Movables” (Tangible Property)
6. “Movables” (Accounts)

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Fiduciary Litigation Articles

Trust Litigation: The Enforcement of Beneficiary Rights

1. Introduction
2. Causes of Action
3. Right to Information
4. Distribution and Trustee Discretion
5. Trustee Investment Obligations
6. Extrinsic Evidence and the Terms of the Trust
7. Hearsay Rule
8. Dead Man’s Statute
9. Confidential Relationship
10. Attorney/Client Privilege

The “Terms of the Trust”: Extrinsic Evidence of Settlor Intent The Intersection of Planning and Litigation Highlighting Differences Among the Jurisdictions

1. Introduction
2. Extrinsic Evidence and the Terms of the Trust, the Plain Meaning Rule
3. Dead Man’s Statute
4. Conclusion

 

1.1 The Non-probate “Revolution”

Professor John H. Langbein wrote a seminal article in 1984, addressing various implications of the “non-probate revolution.”   It is, of course, a fact of life – wealth is increasingly held in forms that avoid probate:   joint tenancies, IRAs and 401(k)s, transfer on death accounts, and – of course – revocable trusts.   Additionally, planners are increasingly focused on using asset protection techniques most, if not all, involving non-probate devices.   Remarkably, creditors seemed disinterested in participating in this revolution or in protecting their interests:

The puzzle in the story of the nonprobate revolution is not that transferors should have sought to avoid probate, but rather that other persons whose interests probate was meant to serve-above all, creditors-should have allowed the protections of the probate system to slip away from them.   Probate performs three essential functions:   (1) making property owned at death marketable again (title-clearing); (2) paying off the decedent’s debts (creditor protection); and (3) implementing the decedent’s donative intent respecting the property that remains once the claims of creditors have been discharged (distribution).[1]

*                   *                   *

The other set of changes that underlie the nonprobate revolution concerns another great mission of probate:   discharging the decedent’s debts.   Many of the details of the American probate procedure, as well as much of its larger structure, would not exist but for the need to identify and pay off creditors.   These procedures are indispensable, but-and here I am asserting a proposition that has not been adequately understood-only for the most exceptional cases.   In general, creditors do not need or use probate.[2]

Professor Langbein’s proposition is that creditors have not been focused on the non-probate revolution, despite its adverse impact on these creditors, because the impact is seen as nominal.   Most of the larger creditors look to other security arrangements or payment modalities (mortgage liens or other security arrangements against specific property, life insurance policies backstopping the debt, medical insurance covering most medical expenses, multiple guarantors, etc.).   The “smaller” creditors – basically credit card companies – find that moral suasion and/or professional debt collection efforts work well and those creditors are willing to pursue probate estates, showing little interest to date in non-probate transfers.[3]   When probate assets exist for the enforcement of creditor rights, of course, that is the simplest collection method because certainty exists as to the procedure.   Creditor’s rights to enforce against non-probate assets, on the other hand, depend on the nature of the asset, the law governing the treatment of that asset, and, in many instances, the fraudulent conveyance act.

* Fred Franke, Annapolis, Maryland © September 2010

 

1.2 Joint Tenancy

For tenants by the entirety property, of course, the creditors of the debtor decedent spouse have no recourse against the property.   This would have been true both during the lifetime of the debtor spouse (assuming it’s not a joint debt) or thereafter.   If the debtor spouse, however, survives the non-debtor spouse, the assets generally become available to the creditor as a result of the instantaneous succession.   [There is a potential exception if the surviving debtor spouse disclaims and as a result of such disclaimer the assets are directed by the deceased non-debtor spouse estate plan to a spendthrift trust for the surviving debtor spouse.][1]

For other forms of joint tenancy, the property may also be free from the decedent’s creditors even after a judgment is entered against one of the joint owners.   In the Eastern Shore Building and Loan Corp. v. Bank of Somerset[2], the Court of Appeals held that a judgment that constituted a lien on one owner’s interest in joint tenancy property did not survive a conveyance to a third party unless or until there is execution on the judgment before the conveyance.   This is not an intuitive result because joint tenancies are “disfavored” in Maryland and many unilateral acts by one joint tenant operates to sever the tenancy, thereby converting it to a holding as tenant in common.   Thus, for example, if one joint tenant executes a lease, executes a contract of sale, or takes other kinds of individual action, the tenancy is severed and the property “converts” to ownership in common.   Nevertheless, the mere fact of a judgment against one joint tenant does not effectuate such a severance and conversion:

In the present case there was no execution by the judgment creditor prior to the conveyance by the joint tenants, nor was there any contract of sale or lease by one joint tenant or other action prior to the conveyance of October 5, 1967, by the joint tenants which might possibly result in a severance of the joint tenancy prior to the conveyance.   That conveyance, it is true, terminated the joint tenancy, but simultaneously with the conveyance, title to the subject property vested in the grantees in fee simple.   There was never a time, therefore, that Otho and William ever held title to the subject property as tenants in common so that there was no estate in the land which Otho, alone, held in severalty to which the lien of a judgment against him alone could attach.   Inasmuch as the judgment is not against any of the grantees in the deed of October 5, the judgment lien obviously does not attach to any of their interests in the subject property.[3]

The holding in Eastern Shore Building & Loan Corp. is the common law rule: “At common law, a creditor’s rights to a debtor’s joint property were limited to the right to sever before the debtor joint tenant died…If the debtor owning an interest in joint tenancy died before the creditor sought to reach the debtor’s share, however, his interest was deemed to expire and the survivor held free of any claims against the decedent. This is still the prevailing rule.”[4]

 

1.3 Transfer of Death Accounts

(Title 16, Estates & Trusts Article of the Annotated Code of Maryland).   Estates & Trusts § 16-109(a) provides:

(b) Rights of Creditors. – This title does not limit the rights of creditors of security owners against beneficiaries and other transferees under the laws of this state.[1]

The statute does not provide separate remedies for creditors.   This is, in fact, the language of the pre-1998 Uniform Nonprobate Transfers on Death Act.   The amendments to the Uniform Act in 1998 took a very different approach – protecting creditors if the probate assets were insufficient to cover all valid claims:

Except as otherwise provided by statute, a transferee of a nonprobate transfer is subject to liability to any probate estate of the decedent for allowed claims against decedent’s   probate that estate and statutory allowances to the decedent’s spouse and children to the extent the estate is insufficient to satisfy those claims and allowances.   The liability of a nonprobate transferee may not exceed the value of the nonprobate transfers received or controlled by that transferee.[2]

The Comments set out the basis for this reversal:

1.                 Added to the Code in 1998, this section extends protections for family exemption beneficiaries and creditors of decedents to new categories of non-probate transferees of decedents.   However, unlike conventional and cumbersome probate protections, the remedy contemplated by this section is to enforce a duty placed on nonprobate transferees to contribute as necessary to satisfy family exemptions and duly allowed creditors’ claims remaining unpaid because of inadequate probate estate values.   The maximum liability for a single nonprobate transferee is the value of the transfer.   Values are determined under (b) as of the time when the benefits are “received or controlled by the transferee.”   This would be the date of the decedent’s death for nonprobate transfers via a revocable trust, and date of receipt for other nonprobate transfers.   Two or more transferees are severally liable for proportions of the liability based on the value of transfers received by each.

*                   *                   *

If there are no probate assets, a creditor or other person seeking to use this section would need to secure appointment of a personal representative to invoke Code procedures for establishing a creditor’s claim as “allowed.”   The use of regular probate proceedings as a prerequisite to gaining rights for creditors against nonprobate transferees has been a feature of UPC Article VI since original promulgation in 1969.   It works well in practice inasmuch as Article III procedures for opening estates, satisfying probate exemptions, and presenting claims are extremely efficient.[3]

As stated, the Maryland Act does not include a special remedy for creditors on transfer of death accounts.   Presumably, such creditors would need to base its claim on the fraudulent conveyance act.

 

1.4 Revocable Trusts

Maryland has yet to adopt the Uniform Trust Code and the rule as to the availability of trust assets for probate creditors is unclear.   Presumably, creditors would need to rely on the fraudulent conveyance statute to assert a post death claim against the trust or on a theory that creditors are entitled to reach the assets because the settler held a general power of appointment.[1]

Generally, of course, a revocable trust is a completed transfer and upon formation and funding the trustee, not the settler, has a present interest in the property.[2] This would seem to present a barrier to prevailing on the theory that the transfer at death of the assets of a revocable trust constitutes the fraudulent transfer.[3] In a different setting, however, the Court of Appeals treated the revocable trust as a mere will substitute.[4]

A revocable trust, of course, is one where the settler retains the right to revoke – in effect, where the settler retains a general power of appointment. At the moment of death, of course, this power disappears. It is unknown whether a Maryland court would make appointive property subject to probate creditor claims. Generally, “The common law provides that creditors cannot reach appointive property as long as a general power remains unexercised.”[5] Nevertheless, a Massachusetts case uses this theory to hold the assets of the revocable trust liable for probate estate creditors even when that general power is unexercised.[6]

Under the Uniform Trust Code, however, the assets held by a revocable trust would be subject to creditor claims to the extent that the probate asset is inadequate to satisfy such claims, including administrative expenses and statutory shares or allowances.     This is a “pure” will substitute approach.

 

1.5 Other Non-Probate Arrangements

By statute, Maryland provides that certain assets are not subject to claims of creditors during the life of the debtor/owner of those assets.   These exempt assets would presumably remain exempt upon the death of the debtor.   This exception importantly covers 401(k)s, IRAs, etc.[1], life insurance proceeds[2] or proceeds from an annuity contract “on the life of an individual made for the benefit of or assigned to the spouse, child, or dependent relative of the individual … whether or not the right to change named beneficiaries reserved or allowed to the individual.”   Additionally, Maryland 529 plans ought to be likewise exempt.[3]   In addition, certain joint accounts held by husband and wife even if they are not held tenants by the entirety are exempt from garnishment.[4]

 

1.6 Fraudulent Conveyance Act

Essentially, there are two categories of transfers that can be set aside as fraudulent:

Conveyances made with actual intent “to hinder, delay, or defraud present or future creditors …”
Conveyances made without “fair consideration” if the transferor becomes insolvent due to the transfer or the transferor is placed in the position that he or she will not be able to meet obligations as they come due.[1] Most non-probate maneuvers, of course, do not render the transferor insolvent at the point of transfer.[2] Thus for example if a transferor creates a revocable trust those assets remain the transferor’s assets and reachable by his or her creditors during lifetime. This is true also, of course, with transfer on death accounts and other arrangements of this sort.

Other than in situations where the arrangement is constructed when death is imminent, a fraudulent conveyance attack on the “transfer” would seem to need to rest on the theory that the arrangement was made with the actual intent to defraud current or future creditors. Although there is no definitive answer as to when a future creditor could set aside transactions based on “actual intent” the general rule seems to be that “old and cold” transactions would be free of such attacks. An analogy would be whether an asset protection trust will be respected given the fact that such trusts are generally for the purpose of avoiding creditors – albeit future unforeseen creditors:

Under what circumstances will transfers to APTs be deemed fraudulent under the fraudulent transfer laws? More particularly, if a settler transfers assets to an APT not with a specific creditor in mind, but rather with the general goal of shielding assets from potential future creditors, will the transfer be deemed fraudulent and thus voidable under the UFTA or similar laws? Although the answer to this question is not without doubt, it appears that most courts are unwilling to void transfers whose purpose and effect is to shelter assets from creditors that were unknown at the time of the transfer. Furthermore, the most remote in time the claim of a future creditor, the less likely a court will be to find that an earlier transfer was fraudulent with respect to that creditor. Thus, as long as a person creating an APT does so well in advance of a creditor’s claim, and especially if the creditor was unknown and unforeseeable at the time of the transfer to the trust, it is likely that the transfer will not be deemed fraudulent.[3] [1] Maryland Uniform Fraudulent Conveyance Act § 15-207. See, the appendix hereto, an overview of the Maryland Act.
[2] Some transfers could, of course, render the transferor insolvent. This would be true of a transfer of all or most assets to a tenants by the entirety account that would make the assets theoretically “unreachable” by the creditor. Cruickshank-Wallace v. Co. Banking & Trust, Co., 165 Md. App. 300, 885 A.2d 403 (2005). In most instances and for most creditor collections after death establishing a non-probate account does not make the asset unreachable however and would not be the basis for the set aside litigation assuming that the transfer is when the non-probate account is established. Although the creation of a tenants by the entirety account can be a fraudulent conveyance whereas the transfer from an existing tenants by the entirety account to the non-debtor spouse, even on the eve of death, generally should not present a problem. See Watterson v. Edgerly, 40 Md. App. 230 (1979).
[3] Robert T. Danforth, “Rethinking the Law of Creditors’ Rights in Trusts,” 53 Hastings L.J. 287, 330 (2002).
– See more at: /estate-trust-administration/the-insolvent-estate-select-topics-from-the-maryland-perspective/1-creditors-and-non-probate-assets/1-6fraudulent-conveyance-act/#sthash.Nnj81L0P.dpuf

 

2.1 The Creditor Claim Statute

Before 1998 and the Supreme Court decision of Tulsa Professional Collection Services, Inc. v. Pope,[1] the various states often tied the statute of limitations for claims against the decedent’s estate to the appointment of the Personal Representative or to a notice that the Personal Representative published in a local newspaper.   The Supreme Court held that the involvement of the state in the appointment of the Personal Representative was sufficient “state action” to trigger the due process clause of the U.S. Constitution and it struck down this limitation period.   Various states changed their statutes (including Maryland) to eliminate the state action.   Now the claim period runs from death – regardless of the status of the probate process.[2]

Currently, the Maryland statute provides as follows:

(a)               General. – Except as otherwise expressly provided by statute with respect to claims of the United States and the State, all claims against an estate of a decedent, whether due or to become due, absolute, or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, are forever barred against the estate, the personal representative, and the heirs and legatees, unless presented within the earlier of the following dates:

(1)               6 months after the date of the decedent’s death; or

(2)               2 months after the personal representative mails or otherwise delivers to the creditor a copy of a notice in the form required by § 7-103 of this article or other written notice, notifying the creditor that his claim will be barred unless he presents the claim within 2 months from the mailing or other delivery of the notice.

(b)               Claim for Slander. – A claim for slander against an estate of a decedent which arose before the death of the decedent is barred even if an action was commenced against and service of process was affected on the decedent before his death.

(c)               Conduct of personal representative. – A claim against the estate based on the conduct of or a contract with a personal representative is barred unless an action is commenced against the estate within six months of the date the claim arose.

(d)             Liens not affected. – Nothing in this section shall effect or prevent an action or proceeding to enforce a mortgage, pledge, judgment or other lien, or security interest upon property of the estate.

(e)               Certain actions for personal injuries and/or damages to property instituted before death. – If the decedent had been duly served with process before his death, nothing in this section shall affect an action for injuries to the person and/or damage to property which was commenced against the decedent.

(f)               Certain actions against Maryland Medical Assistance Program recipients. – A claim filed by the Department of Health and Mental Hygiene against the estate of a deceased Maryland Medical Assistance Program recipient, as authorized under § 15-121 (a) of the Health-General Article, is forever barred against the estate, the personal representative, and the heirs and legatees, unless the claim is presented within the earlier of the following dates:

(1)               6 months after the first appointment of a personal representative; or

(2)               2 months after the personal representative mails or otherwise delivers to the Department’s Division of Medical Assistance Recoveries a copy of a notice in the form required under § 7-103 of this article or other written notice, notifying the Department that the claim shall be barred unless the Department presents its claim within 2 months from the receipt of the notice.   (An. Code 1957, art. 93, § 8-103; 1974, ch. 11, § 2; 1989, ch. 496, § 1; 1992, ch. 226; 1997, ch. 586; 1998, ch. 21, §1.)[3]

Supposedly, a “claim” is to be “verified.”[4]   This rule is not strictly followed as long as the claim is definite enough to be understandable:

In order to establish timely notices of their claims under § § 8-103 and 8-104, plaintiffs only need show “substantial compliance” with those statutory requirements.   See Lampton v. LaHood, 94 Md. App. 461, 469, 617 A2d 1142 (1993); Lowery v. Hairston, 73 Md. App. 189, 197, 533 A.2d 922 (1987).   The Court of Special Appeals of Maryland in Lowery specifically referred to the “forms of presentment” of a claim delineated in § 8-104(b) as “permissive and not mandatory in nature” and reiterated that, even if a claimant fails to comply with the section, such failure “‘may be a basis for disallowance of a claim in the discretion of the court.'”   Lowery, 73 Md. App. at 197 n.2, 533 A.2d 922 (quoting § 8-104(b)) (alteration in original).

Where the claim is for the payment of money, that necessarily implies some statement of, or method of calculating, the amount being sought….   Section 8-103, read in conjunction with § 8-104, requires that the claim directed to be presented within the six-month period be sufficiently clear and certain as fairly to apprise the personal representative of what the claimant is seeking….   The personal representative cannot be left to guess what kinds of specific claims might eventually spring forth from … [a general] prayer [for relief] at one or more points in the future.[5]

As with any other statute of limitations, a personal representative may be estopped from using it under certain circumstances.[6]

 

2.2 Priority of Claims

The Maryland statute provides for a priority of claims as follows:

(a) Insufficient assets. – If the applicable assets of the estate are insufficient to pay all claims in full, the personal representative shall make payment in the following order:

(1) Fees due to the register;

(2) Costs and expenses of administration;

(3) Funeral expenses as provided in § 8-106 of this subtitle;

(4) Compensation of personal representatives as provided in § 7-601 of this article, for legal services as provided in § 7-602 of this article, and commissions of licensed real estate brokers;

(5) Family allowance as provided in § 3-201 of this article;

(6) Taxes due by the decedent;

(7) Reasonable medical, hospital, and nursing expenses of the last illness of the decedent;

(8) Rent payable by the decedent for not more than three months in arrears;

(9) Wages, salaries, or commission for services performed for the decedent within three months prior to death of the decedent;

(10) Old age assistance claims under Article 88A, § 77 of the Code; and

(11) All other claims.

(b) Prohibition against preference. – A preference shall not be given in the payment of a claim over another claim of the same class. A claim due and payable is not entitled to a preference over claims not yet due. (An. Code 1957, art. 93 § 8-105; 1974, ch. 11, § 2; 1988, ch. 563, § 5; 1989, ch. 5, § 1.)[1]

Claims by the federal government may, of course, trump the state statutory formulation.

[1] Est. & Trusts Article § 8-105.

 

2.3 Enforcement of Liens

The claims statutes do not affect actions or proceedings to by secured creditors to enforce mortgages or other liens that are in place at death. Indeed, the limitation on the presentment of claims statute specifically exempts the enforcement of liens.[1] Also, the prohibition against execution or levy against probate estate property does not extend to the enforcement of pre-death liens.[2] Thus, to the extent a secured creditor has sufficient security, the enforcement of such secured creditor’s claim may be made independent of the probate process.[3]

The Court of Appeals recently clarified that a post-death judgment lien is not afforded the special treatment given to pre-death liens and, in fact, does not create any special status in a decedent’s estate.[4] In that case, a former wife received the marital award before the death of her husband and she was also entitled to receive one-half of the proceeds of the sale of the marital home. The sale of the home never took place but the divorce, of course, converted the holding from by the entireties to in common. The former wife did not reduce her award to a judgment or record it as a judgment lien.[5] Having remarried, the former husband died with only his one-half tenant in common interest in the marital home in his probate estate. Thereupon, the former wife reduced her martial award to a money judgment and recorded it in the county where the property was located.

One of the issues in the case was whether the former wife’s debt was entitled to any special status because of her post-death “perfecting” of her pre-death claim. Essentially, the Court held that the status of a claim against a decedent is determined at the moment of death. At the date of death, all property passes to the personal representative so any action on the debt thereafter must necessarily be a claim against the estate:

The Commission (the “Henderson Commission”) has rejected the concept … that title to all property passes directly to the heirs or legatees, subject to the power or control over the property by the personal representative. The Commission felt that this dichotomy between title, on the one hand, and power, on the other, is unworkably vague and unnecessarily inconvenient. On the contrary, the Commission recommends the suggested wording of Section 1-301 in order to make it clear that the title to all property both real and personal, and as to both testate and intestate estates, shall pass directly to the personal representative.

Second Report of Governor’s Commission to Review and Revise the Testamentary Law of Maryland, 13 (1968). The underlying principle, then, is that upon death, title to real property passes out of the hands of the decedent. This conclusion holds true even when, as here, the Personal Representative is substituted as the “judgment debtor.”

We conclude that the judgment obtained and recorded as a lien against Beales Trail after Mr. Elder’s death based upon a marital award against him two years prior to his death, is not afforded priority under the statutory scheme embodied in the Estates and Trusts Article, because title to real property passes out of a decedent’s hands after death.[6]

Thus, the remedy of a creditor will fall exclusively to the probate claim process unless such creditor is a secured creditor prior to the decedent’s death.

Section 8-111 provides that secured creditors may look to the probate estate for collection. This statute, however, does not require an election of remedies. Instead, it permits a secured creditor three options if it wants to seek payment through the regular probate process: (a) release the lien and become an unsecured creditor in the full amount of its debt (losing, however, any priority in a specific asset and being lumped in with all other general estate creditors), (b) foreclose on the security and receive the deficiency to the extent it has an allowed claim, or (c) receive the difference between the value of the security (as determined by agreement or by the Orphans Court) and the allowed claim. These options require the filing of a claim or protective claim but the filing of such a claim does not waive a creditor’s rights to its security. If a secured creditor, however, wants to seek to redress a deficiency judgment against the estate, that creditor must file a claim, or protective claim, within the statutory period. This may become a more common practice given the sharp decline in property values, especially in beach or vacation home properties. In order to foreclose on its security, however, a secured creditor need not file a claim.

[1] Est. & Trusts Article § 8-103(d).
[2] Est. & Trusts Article § 8-114 (b).
[3] Courts & Judicial Proceedings Article § 11-402 provides that a judgment becomes a lien on all real property of the debtor upon entry if indexed and recorded for property located within that county and upon indexing and recordation in other counties. A judgment, regardless of whether indexed and recorded, does not generally constitute a lien on personal property until execution thereon.
[4] Elder v. Smith, 412 Md. 288, 987 A.2d 36 (2010).
[5] A marital award is held, in Maryland, not to be the equivalent to a judgment and it is not an interest in the other spouse’s property. Herget v. Herget, 319 Md. 466, 471, 573 A.2d 798,800 (1990) (“The court may…enter a monetary award against one party and against the other when that action is appropriate to adjust an inequity that would otherwise result from distribution, strictly in accordance with title, of property qualifying as ‘marital property.’ To the extent a monetary award is immediately due and owing, the court may enter a judgment reflecting it, thereby subjecting the property of the indebted party to lien and execution.”).
[6] Elder v. Smith, 412 Md. 218, 305, 987 A.2d. 36 (2010). In Elder, the Orphans’ Court had also ordered to the former spouse to release her lien from the property to permit the property to be sold to a third party. The Court of Appeals held that the Orphans’ Court did not have such jurisdiction and that only a Circuit Court could effectuate such relief because of the limited jurisdiction of the Orphans’ Court.