Ask Me Help Desk - What are the rules for probate in Arizona regarding step children?

My mother passed away in 2009, a widow, and I am her only natural child. I have two step-sisters that are contesting the validity of her holographic will (alleging forgery). I am confused as to why they would do this, as it is my understanding that step-children do not inherit unless specifically stated in a will. Therefore if the will is found to be invalid and my mother is declared to have died intestate, I would become her sole heir (as stated in ARS 14-2101) Is this correct, and if not please explain? Also any advice as to how to handle this situation would be appreciated!! Thanks!

Are the step-children mentioned in the will? Is there, perhaps, a prior will more favorable to the step-children? Or maybe a subsequent will then the one you probated (I assume you are the executor)?

I think you need to look at ARS 14-2114(C). That could qualify the step-children as heirs. I would consult with an AZ estate attorney to clarify whether 2114(C) makes them eligible heirs. If it doesn't I would send them a letter stating that under AZ law if they overturn the will then they would get nothing.

I've seen Wills prepared by Attorneys challenged - and, yes, I would hire an Attorney.

Quote:

Originally Posted by ScottGem

... Or maybe a subsequent will then the one you probated ...

If there is a will subsequent to the will being probated, it would be unnecessary to challenge the earlier will.

Quote:

Originally Posted by AK lawyer

If there is a will subsequent to the will being probated, it would be unnecessary to challenge the earlier will.

I'm not so sure of that. If the OP submitted the will he has for probate, and the step siblings claim they have a subsequent testament, then they would have to submit it to the probate court for determination of which is the valid will.

[QUOTE=ScottGem;2240260]Are the step-children mentioned in the will? Is there, perhaps, a prior will more favorable to the step-children? Or maybe a subsequent will then the one you probated (I assume you are the executor)?

To answer you ScottGem, no, there is only one will in existence. My step sister is alleging that the signature on the will is not my mothers and that the material provisions in her holographic will are not in her handwriting. There is no other prior will in existence.

I think it may be best to explain a bit further... My mom had originally written the will in mid 2008 when she was recovering from some health problems. Then, in 2009, mom discovered some check fraud in her account which turned out to have been committed by one of my stepsisters. My step sister was sentenced to 6 months prison time and was taken into custody 9/25/09. As a result of the crime, mom chose to effectively disinherit my sister and her children, and make a few other changes as well to her will. As soon as court ajourned, my mom and aunt went to lunch which was when she made the changes. She did this by crossing things out and then initialling each change and then she re-signed the will and had my aunt sign as witness. Her intention was to type it up and sign it etcetera over the weekend, but my mom never had the chance. Ironically, she ended up suffering a perforated ulcer that caused a toxic infection to spread and she died following emergency surgery on 9/26, less than 24 hours after altering her will.

So, in essence my answer is yes, my step sisters were both mentioned in the will at one point, being given a few personal items, but no money. Following the changes one sister was eliminated entirely. It is the other sister who is contesting the will for some reason. I don't know if any of this makes a difference...

Anyway, I would like to arrange an initial consultation with an attorney as soon as possible to determine the best course of action and see if I am able to afford hiring counsel. I am unsure at this point, but certainly would like to consider it! Thank you for all of your assistance!:o

Good luck and keep us posted.

Quote:

Originally Posted by JCLOVER

... I would become her sole heir (as stated in ARS 14-2101)...

Section 2101, as you probably are aware, states as follows:

Quote:

14-2101. Intestate estate; modification by will

A. Any part of a decedent's estate not effectively disposed of by will passes by intestate succession to the decedent's heirs as prescribed in this chapter, except as modified by the decedent's will.

B. A decedent by will may expressly exclude or limit the right of a person or class to succeed to property of the decedent that passes by intestate succession. If that person or a member of that class survives the decedent, the share of the decedent's intestate estate to which that person or class would have succeeded passes as if that person or each member of that class had disclaimed that person's intestate share.

The Arizona statute on intestate succession is as follows:

Quote:

14-2103. Heirs other than surviving spouse; share in estate

Any part of the intestate estate not passing to the decedent's surviving spouse under section 14-2102 or the entire intestate estate if there is no surviving spouse passes in the following order to the following persons who survive the decedent:

1. To the decedent's descendants by representation.

2. If there is no surviving descendant, to the decedent's parents equally if both survive or to the surviving parent.

3. If there is no surviving descendant or parent, to the descendants of the decedent's parents or either of them by representation.

4. If there is no surviving descendant, parent or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents, half of the estate passes to the decedent's paternal grandparents equally if both survive or to the surviving paternal grandparent or the descendants of the decedent's paternal grandparents or either of them if both are deceased with the descendants taking by representation. The other half passes to the decedent's maternal relatives in the same manner. If there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent's relatives on the other side in the same manner as the half.

The changes she made on 9/25/09 appear to be what they are contesting. If those changes were found to be not valid, the will as it existed prior to that date would be in full force and effect, and both would be entitled to the few personal effects your mother left them (in that original version).

My research indicates that the ENTIRE Will must be in the handwriting of the Testator. I see no provision for changing a document - which appears to be the situation here.

This would be "my" legal argument.

Quote:

Originally Posted by JudyKayTee

... I see no provision for changing a document - which appears to be the situation here...

Here:

Quote:

14-2507. Revocation of will; requirements

A. A testator may revoke a will in whole or in part:

1. By executing a subsequent will that revokes the previous will or part expressly or by inconsistency.

2.. . For purposes of this paragraph, "revocatory act on the will" includes burning, tearing, canceling, obliterating or destroying the will or any part of it. A burning, tearing or canceling is a revocatory act on the will whether the burn, tear or cancellation touched any of the words on the will.

Section 2507 specifies the act which OP describes: striking out (cancelling) a portion of the old will. It clearly says that revication may be in whole or in part.

Quote:

She did this by crossing things out and then initialling each change and then she re-signed the will and had my aunt sign as witness.

By the way,you refer to the last changes she made as a holographic will, but these changes are more properly described as a partial revocation. Is it correct, Jclover, that the original will was typed and properly witnessesed (two witnesses)?

I find the section which you posted conflicts with info about a hand written will -

Perhaps an Attorney in Arizona will come along and answer the question - I hope the OP will be good enough to come back after she has a consultation with an Attorney and let us know what the final outcome is.

Quote:

Originally Posted by JCLOVER

... My step sister is alleging that the signature on the will is not my mothers and that the material provisions in her holographic will are not in her handwriting. There is no other prior will in existence. ... It is the other sister who is contesting the will for some reason. I dont know if any of this makes a difference...

Anyway, I would like to arrange an inital consultation with an attorney as soon as possible to determine the best course of action and see if I am able to afford hiring counsel. I am unsure at this point, but certainly would like to consider it! ...

What procedural posture is this case in? A petition to the court to admit the will to probate has been filed? Are you the executor / petitioner? Did you file this petition without an attorney? Your step-sister ("the other sister") has filed something with the court to contest? Or is it all talk at this stage?

By the way, you say that "Ironically, she ended up suffering a perforated ulcer ...". It's tragic, and I'm sorry for your loss, but I don't understand how this is ironic.

Thank you all for your help so far!

Just to clarify, I found in the AZ revised statutes section 14-1201 definitions paragraph 5 which states:

5. "Child" includes a person who is entitled to take as a child under this title by intestate succession from the parent whose relationship is involved. Child excludes a person who is only a stepchild, a foster child, a grandchild or a more remote descendant.

Am I understanding this correctly? By this definition, it would appear under rules of intestate succession my step-sisters would NOT inherit automatically, right?

TO answer AK Lawyer, my mothers original will was also handwritten, 100% by her and then witnessed by 2 non-relatives.

Oh, also to AK LAWYER, I apologize for poorly chosen words regarding my mothers passing. I agree, it is not ironic, just horribly tragic.

Thanks...

Quote:

Originally Posted by JCLOVER

... 5. "Child" includes a person who is entitled to take as a child under this title by intestate succession from the parent whose relationship is involved. Child excludes a person who is only a stepchild, a foster child, a grandchild or a more remote descendant.

Am I understanding this correctly? By this definition, it would appear under rules of intestate succession my step-sisters would NOT inherit automatically, right?

That is correct. Your mother's stepchild is excluded as an heir under the intestacy succession statute.

Quote:

Originally Posted by JCLOVER

TO answer AK Lawyer, my mothers original will was also handwritten, 100% by her and then witnessed by 2 non-relatives.

Then the original will, before it was altered, was not technically a "holographic" will under the statute. It was simply a hand-written "regular" will.