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NO Will - Stepmom died first, the Dad a few months later - How is Probate handled?

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In Arizona, no will was prepared by Stepmom and Dad. 

 

- Stepmom (2 children - both over the age of 18) died in April. 

- My Dad (3 children - all over the age of 18) then died in August. 

- Sadly, not all surviving parties get along.

 

- Since Stepmom died first, all assets (home, cabin, artwork, personal objects,  etc.) went to my Dad, but since he died a few months later (& a will was NOT signed by my Dad), are all remaining assets split between all 5 children or just my Dad's children?   

 

Thanks for your help. 

 

 

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Your assumption that all of the assets went to your father is incorrect. Since there were children from a prior marriage the assets were divided between your father and the children when your step-mother died. Since the division depends on whether the assets were community or separate property you really need to engage an Arizona attorney to help you figure out the division of the property.

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CAdaughter, on 19 Oct 2015 - 4:32 PM, said:

In Arizona, no will was prepared by Stepmom and Dad. 

 

- Stepmom (2 children - both over the age of 18) died in April. 

- My Dad (3 children - all over the age of 18) then died in August. 

- Sadly, not all surviving parties get along.

 

- Since Stepmom died first, all assets (home, cabin, artwork, personal objects,  etc.) went to my Dad,

 

That's possible if the home and cabin were owned by Stepmom and Dad jointly with right of survivorship. The property would have automatically gone to Dad and any personal property on or in both homes is presumed to be owned by whoever possesses it unless proven otherwise. If no one challenged Dad's possession of the personal property, then that was pretty much a done deal.

 

 

 he died a few months later (& a will was NOT signed by my Dad), are all remaining assets split between all 5 children or just my Dad's children?   

 

That depends on whether Dad adopted any of Stepmom's children from a previous marriage. If he didn't, then his estate is divided among his three children.

 

Keep in mind, however, that Stepmom's children could still challenge the distribution of personal property for a share that they were entitled to under intestacy when Stepmom died.

 

Has anyone stepped up to file Dad's estate for probate yet?

 

There's no getting around that requirement now.

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Retired in VA: 

I was not aware that when my stepmom died, one-half would go to her kids and one-half would go to my Dad.  Thanks for this info.

 

 

Adjustor Jack: 

No, my Dad did not adopt my stepmom's kids.

 

My brother just stated that he wants my sister and I to sign "Waivers of Bond" so he can be the executor of the estate.  What would we be waiving if we signed this document?   I do not feel comfortable with this as I feel we do need to find a probate attorney in Arizona.  Your thoughts? 

 

 

 

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In most cases the administrator of an intestate estate is required to purchase a bond, essentially an insurance policy, from an insurance company to protect the beneficiaries from his or her malfeasance. The waiver of the bond simply allows the administrator to avoid buying the bond. It is commonly waived if the proposed administrator is a member of the family or a beneficiary of the estate. If you don't trust your brother to do a good and honest job of administering the estate, refuse to sign the waiver. However, realize that the cost of the bond comes out of the estate so you eventually end up paying for it.

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14-2102. Intestate share of surviving spouse
 
The following part of the intestate estate, as to both separate property and the one-half of community property that belongs to the decedent, passes to the surviving spouse:
 
1. If there is no surviving issue or if there are surviving issue all of whom are issue of the surviving spouse also, the entire intestate estate.
 
2. If there are surviving issue one or more of whom are not issue of the surviving spouse, one-half of the intestate separate property and no interest in the one-half of the community property that belonged to the decedent.

 

 

Just because your brother wishes to be appointed to administer the estate does not mean that he cannot retain an attorney to assist and advise him.

 

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CAdaughter, on 19 Oct 2015 - 6:22 PM, said:CAdaughter, on 19 Oct 2015 - 6:22 PM, said:

 

My brother just stated that he wants my sister and I to sign "Waivers of Bond" so he can be the executor of the estate.  What would we be waiving if we signed this document?   I do not feel comfortable with this as I feel we do need to find a probate attorney in Arizona.  Your thoughts? 

 

CAdaughter, I'm guessing you are in California. I'm guessing your brother is in AZ where it's convenient for him to handle the estate. Where is your sister located?

 

Waiving the bond and hiring an attorney are two different things.

 

Why do you think a lawyer is required? Is the estate complicated? Doesn't seem to be unless there are additional assets you haven't mentioned.

 

Arizona doesn't limit attorney fees like California does. If an attorney charges $300 per hour and the probate takes 6 months you could be looking at $20,000 to $30,000 in attorney fees and the attorney is likely to want $5000 up front, maybe more.

 

Think about that in comparison to the value of the estate and any experience or ability your brother brings to the table.

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Adjuster Jack:

 

Brother is in CA also; sister in OR.  Step-Mom's kids are both in AZ. 

 

Brother has stated on numerous occasions that Stepmom's two children "will get nothing".   I had hoped that getting an AZ probate attorney involved would make sure that Stepmom's two children will get Stepmom's share after Stepmom died as  "RetiredinVA" mentioned above. 

 

I believe AZ house is community property, artwork that was taken from house I believe was Stepmom's separate property; and not sure about cabin.   

 

Will the AZ Probate Court make sure that Stepmom's children are notified of what is going on or is there anyway to make sure Stepmom's children are included without having to get a AZ probate attorney involved? 

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. I believe AZ house is community property, artwork that was taken from house I believe was Stepmom's separate property; and not sure about cabin.   

 

 

Easy enough to find out. If you know the location of the properties you can look them up in the county records and get copies of the deeds.

 

CAdaughter, on 19 Oct 2015 - 11:53 PM, said:

 

Will the AZ Probate Court make sure that Stepmom's children are notified of what is going on or is there anyway to make sure Stepmom's children are included without having to get a AZ probate attorney involved? 

 

The probate court doesn't "make sure" of anything other than procedures are followed.

 

It's up to the administrator of the estate to know the law and the court requirements and get it right.

 

The court will only get involved if somebody challenges what the administrator is doing.

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I suggested the administrator of the estate engage an attorney to help determine the character of the assets of the estates, I.e. Separate versus community property. I do not believe it is necessary for the parties to employ an attorney to administer the estate. In my opinion, the proper function of an attorney is to advise the administrator. If the attorney charges thousands or tens of thousands of dollars to advise the administrator of the typical estate the attorney is ripping off the estate. I did advise many administrators and executors and still was able to sleep at night.

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- Stepmom (2 children - both over the age of 18) died in April. 

- My Dad (3 children - all over the age of 18) then died in August. 

 

 

Are any of your stepmother's children also your father's children, or are all five children from prior relationships?  Sounds like the latter is the case.

 

 

 

- Since Stepmom died first, all assets (home, cabin, artwork, personal objects,  etc.) went to my Dad 

 

Since both of your stepmother's two children were not also your father's children, this is not what should have happened.  Under Arizona law, when a person dies without a will and is survived by a spouse and children who are not also the surviving spouse's children, the surviving spouse inherits one-half of the deceased spouse's separate property, and the children inherit the other half of the separate property and the deceased spouse's interest in community property.  Note that this does not apply to any assets that that were owned jointly with the right of survivorship.

 

 

 

but since he died a few months later (& a will was NOT signed by my Dad), are all remaining assets split between all 5 children or just my Dad's children?

 

Your father's stepchildren have no entitlement to inherit from his estate.  However, since your stepmother's estate apparently was not administered correctly, his stepchildren appear to have a claim against his estate for what they should have received from their mother's estate.

 

 

 

My brother just stated that he wants my sister and I to sign "Waivers of Bond" so he can be the executor of the estate.  What would we be waiving if we signed this document?   I do not feel comfortable with this 

 

I'm a little confused.  If you don't understand what you'd be waiving, why do you feel uncomfortable with this?  Is it just that your lack of understanding makes you feel uncomfortable?  In any event, probate courts sometimes will require that the administrator/executor post a bond that will pay damages to the estate resulting from the administrator/executor's negligence or malfeasance.  By waiving the bond, you would essentially be asking that the court not require that your brother post a bond (which it might not do anyway since he is one of three closest surviving relatives).

 

 

 

I feel we do need to find a probate attorney in Arizona.  Your thoughts? 

 

The administrator should retain an attorney to represent him/her, but I can't see why anyone else would need an attorney.  Note that this has nothing to do with the waiver or non-waiver of a bond.

 

 

 

Will the AZ Probate Court make sure that Stepmom's children are notified of what is going on or is there anyway to make sure Stepmom's children are included without having to get a AZ probate attorney involved? 

 

I'm not sure why you're tying all these things into the retention of an attorney.  No, the probate court won't do that, and there is nothing to "include" them in.  I have to assume that no one actually probated your stepmother's estate and that your father simply took possession of everything that was hers as a matter of course.  I don't know if they held any separate bank or investment accounts, and you haven't said how title to real property was held (and I expect you may not know).  Depending on those facts, it's possible that your father didn't really do anything and that no one else did either.  It may be that most/all of their significant assets were owned jointly with the right of survivorship.  If your step-siblings believe there were things they should have received from their mother's estate, then they need to file a claim against your father's estate.  As mentioned above, whoever wants to be administrator ought to be consulting with an Arizona probate attorney (IMO, administering an estate is not a good DIY project).

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