California/Arizona Wills

[Debbie LeClair]

california/arizona

my daugthers' (19 & 23 yrs.) father died last october. he and i were divorced in 1995; he had remarried 1 1/2 yrs. prior to his death. when we were married (in arizona), we both filed wills and living trusts. before he died, he hand-wrote a very short will leaving everything to his new wife. my daughters never saw this will; it was not filed with the county or state (California).

my question: if my daughters father never resinded or revoked in writing the will he filed in arizona, when we were married, is the will binding? i also had a legally filed power of attorney on my daughters father that he never resinded.

my daughters' father's widow has done nothing for or has given anything to my daughters. i'm concerned for their interests as there was a substantial amount of money from insurances (dad was a federal fire fighter) that could assist them with college. there were also personal items of their dad's they would like to have.

 

[recycbride]

California/arizona

I'm not an attorney but until someone responds to this that is here are my thoughts: Was the will witnessed by 2 other individuals other than the deceased or his wife? Was it notarized?If you can answer no to these two questions I think the will could be declared invalid. If that's the case. it could considered that he died intestate (without a will)--in that case your daughters would be entitled to a certain % --as for a previous will, that might hold up, depends on state law-divorce serves to invalidate gifts to the spouse, who is treated as having predeceased the testator in some states--so you would get nothing in the previous will but your children might be okay. Some states invalidate wills upon marriage. You need to sit down with a good probate attorney--I hope this little bit helps and you get a few other responses from some more knowlegeable people.

 

[advisor10]

OCTOBER 10, 2001

DEAR DEBBIE:

The first will your father wrote became invalid whenever he wrote the new "short" will (how did you find out about the short will?). If the new will was not filed at the probate court of the county courthouse (of the city where the death occurred) in California, then probably there was something wrong with it (and the new wife and/or her attorney figured out it would probably be declared invalid) and it seems as if the estate was divided according to intestate probate law (without a will).

However, the first thing you need to do is to check at the county courthouse TO MAKE SURE that the newer will was not filed, and also check to see if a probate file has been set up in your deceased father's name. If it has been, then the estate was processed as intestate and you need to review every document in that file to see how the estate was handled and who was named executor or personal administrator of the estate and also get their address and/or phone number.

I'm not familiar with California probate law, but I am guessing that the new wife and/or her attorneys figured out that the newer will would have been found invalid (there may have been something wrong with it) and they went ahead and had the estate probated as intestate. Or, she may have decided not to file anything at all regarding his estate, in which case she could possibly be in trouble or legally vulnerable. In California, it is a requirement that children must be mentioned in the will, but I don't know what happens in court when the judge finds out that they aren't mentioned.

According to a reference book I checked, the new wife would have been eligible for 1/2 of the decedent's community property, 1/3 of life estate in separate real property, and 1/3 separate personal property, with the balance of the estate going to the children (who are not children of the surviving spouse, which would be the same thing as saying your children). The attorneys or the judge should have made an effort to locate your children to notify them of this share of the estate, but it looks as if the new wife may have lied by saying that there were no other heirs or that she couldn't find them. Something seems very suspicious here in that you or your children were not notified about this. I think the new wife is greedy and wants to keep everything for herself, but this is not ethically right.

The life insurances would have not been considered a part of the estate and would have been payable only to the named beneficiaries.

After you find out whether there is a probate file available and if there is any financial information in there, then you can decide to follow up by hiring an attorney to file a claim for your children's share of that estate. The probate file might also reveal if a trust was set up and the name of the trustee and/or the name of the bank where the trust is kept. Trust information, however, is confidential and you would need to contact the trustee to get more information about whether or not your daughters were beneficiaries of the trust.

Let me know what you find out about the probate file so I can advise you how to proceed from there. It may take a little bit of digging, but I feel the new wife should give up a portion of this estate for your children if she claimed their share wrongfully.

You will probably end up having to hire a California probate attorney to file a claim for your children's share of this estate.

SINCERELY,

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