Trusts & Estates Law/Sudden passing and will/legal questions
QUESTION: Hi Richard,
Forgive me if I am asking out of your expertise. I was searchng here and your name had come up. I'll make it brief and in advance thank you for any help you might be able to offer.
My sister lived in AZ and we are across the country. She suddenly passed. She has an ex-husband and a 14 yr old son. I am the only living sibling. Her mother has passed and her father is still alive at 82.
The circumstances of her death were sudden and she mentioned in an email to me she was seeing a laywer and was setting aside something for me which I still am not sure what it was. She never listed the lawyers name etc. I really do not want anything of hers that has monitary value want that all to go to the son.
Question: What are the Ex-husbands rights in handling her estate and financial issues? Being the next of kin would I have rights? I have no clue what she had and again want it all to go to the son. And lastly if she did have another will as she mentioned she was going to get in email, how would that lawyer know of her death and that I was listed? Will he ever contact me? Again I have no idea who he might be.
I know it's very complex but I do thank you for your assistance.
ANSWER: The ex-husband, would have no direct legal rights to any assets.
Whether or not she had a will at the time of her death, her estate would be "Probated".
That means that the State of AZ would make sure that her affairs (financial) were resolved.
If she was seeing a lawyer, I can assure you that the Lawyer probably named himself as the executor of the estate and would be aware of her passing (That is one way that the attorney can get paid). If she had no will and no executor, someone normally an heir (but your nephew is too young) would take that position or contract to someone to be the executor (one of the many ways that the value of the estate gets depleted.
The executor is obligated to advertise for any creditor, negotiate payment, sell assets as necessary and after all the debts are satisfied, distributes the assets. Without a will, the Probate Court uses standard distribution rules. All assets first go to surviving spouse, if no spouse then surviving children, if no children then parents, if no parents then grandchildren, if no progenitors or ancestors then siblings, then cousins, etc.
You concern that your nephew will receive any valuable distribution will bear out.
As for personal affects that your sister might have wanted you to have, without a written declaration to that effect, you have no real rights.
I said the ex-husband would have no Direct, Legal Rights, however, he would probably be the boys Guardian until he reaches 18.
Your nephew would have the ultimate deciding position. I imagine you already stay in contact with him and are on good terms. There may be many of her personal items that he would have no need for or interest in, that might have sentiment for you. While your Ex-Brother-in-Law has no legal rights he probably does have some influence with his son.
In reality, offering to help go through her things and help organize and dispose of would be a great help. I understand that you live across the country and that might not work out. Be open to offering to buy those items that he would probably have to sell would keep them in the family.
---------- FOLLOW-UP ----------
QUESTION: Dear Richard,
I thought I would send a follow up note with you regarding my sister. According to her she was working with an attorney to update her will. Her ex husband had a copy of a will she did after their divorce a few years ago. It states him as executor of her estate. Well here is my question for you. So the ex husband is handling this. We have no clue as to any of her assets. He is following her Will that he has a copy of. According to my sister 6 weeks ago she stated she was seeing a lawyer to update her will. We never discussed further.
So once the ex husband wraps up her financial issues as an executor does, what happens if the second will pops up somewhere? I know you mentioned if she had a lawyer he would be notified of her death. The police report was officially released about 10 days ago of her passing and her ex did not put an obit in the AZ papers. Would the lawyer still know of her passing do you think?
I really have no interest in pursuit of anything. I am maintaining a cordial relationship with the ex in best interest of the son. So financial gain means nothing to me. I am just so very curious how these things work out?
While there is no process of admininstration that keeps attorney's informed, it is their own business model. Keep in mind that the attorney gets paid by being the executor. If the attorney wants to get paid they need to be aware of the passing so they can claim that job. I can't say that every attorney is a competent business person, but in that simple form most should be.
If during the probate process therea re multiple wills that appear it will be the probate court that determines which has primacy and recency. After the estate process is closed, and all assets are fully conveyed to the heirs, then a new will would have no ability to make a change.