So I Married An Evil Stepparent
Your wonderful new spouse will treat your "other" children fairly when you're no longer
around, right? Guess again.
By Ben
Bhandhusavee, Esq.
A man (we'll call him "Eric") called me
last month from Las Vegas. His father ("Dad") had recently passed and
now he wanted to know what to do. After some brief Q&A, here's what I
learned: Eric and his sister were Dad's natural children from a previous
marriage. Dad had gotten remarried and moved to Surprise, Arizona, where he had
passed on. Although Eric was close to Dad (he frequently visited them in Surprise and
Dad came up often to visit Eric up in Sin City), he wasn't sure of the extent of
Dad's estate other than that he had the house in Surprise and another home in
Alabama from the marriage, as well as a number of vehicles. He believed that Dad
had made a Last Will & Testament, but could not be completely sure. Stepmom, meanwhile, had two
children herself from a previous marriage and, in the wake of Dad's death, had
suddenly become very unresponsive to Eric's multiple requests for a copy of the
Will and information about Dad's estate. Eric found this to be particularly
strange, considering that, following Dad's death, one of his stepbrothers had
confirmed that Dad had made and executed a Will.
I explained to Eric his options: First,
we could get him appointed as Personal Representative ("PR") of his
father's estate here in Maricopa County in order to give him the court-approved
authority to collect and control the assets of the estate. However, I also
informed him that doing so would be rather risky as (i) the work to prepare the
petition and the court fees would run a couple hundred dollars, and (ii) he wasn't even sure whether or not there was a Will, let
alone any property in Dad's probate estate (much of the property, as is often
the case, could be owned by both Dad and Stepmom, passing entirely outside of
probate and the control of the PR) to make becoming PR worthwhile to him,
and (iii) assuming there were probate assets, Stepmom would almost certainly contest such an appointment and, under
Arizona law, would actually have priority over him to be PR. Second, we could file something called a
Demand for Notice with the Maricopa
County Superior Court Probate Division, which would basically act as a "red flag" to
anyone (i.e., Stepmom) attempting to probate Dad's Will or seeking appointment as PR that
they had to first provide Eric with proper notice and copies of
the papers being filed with the Court. I told him we could also follow up with the Stepmom and demand she produce a copy of the Will or probate it as required
under A.R.S. §14-2516. While this second option would cost
considerably less than filing for appointment as PR, it would probably
accomplish less as well, but was nonetheless worth the effort.
Being of modest means, Eric
(unsurprisingly) chose the second option. We promptly filed a Demand for Notice
with the Superior Court and provided a copy of the Notice to the Stepmom along with a letter directing
her to provide us with a copy of the Will. Several days later, our office
received a written response from Stepmom stating essentially that (a) Dad had no Will, (b)
she had no intention to probate anything or seek appointment as PR because (c)
everything her and Dad had was held jointly together and, for this reason, no probate was
necessary or required. In other words, she was telling us, to put it in
G-rated language, to
"go fly a kite".
How, you may ask, was this possible and
why could Stepmom get away with this? Regrettably, such scenarios as
Eric's happen a lot more often that you think, oftentimes with heartbreaking results
(for an even more tragic example, see my other article:
Nikki's Story). At least, in this case,
Eric was a grown man, probably able to handle the disappointment of being left
with nothing by his Dad and/or everything his Dad owned going to Stepmom and,
eventually, Stepmom's children from a different marriage. Dad
may have been a good man and a great father, he and Eric may have been best buds
while alive, and he may have even executed a valid Will, but Dad failed to take
account for the fact that Stepmom and his children from a prior marriage would
not see eye to eye or get along--particularly when it came down to who had a
right to his property. And because no one else knew of the Will or its
whereabouts, Stepmom could simply deny its existence (or perhaps destroy it
altogether?). The truly tragic part is even if there was actually no Will, under
Arizona's intestacy (i.e., dying-without-a-Will) laws, Eric and his sister (as surviving natural children of Dad) would
actually be entitled to one-half of Dad's separate property, which, assuming he
had entered the marriage with Stepmom with considerable assets in his own name, may have been significant.
However, without any list or detail as to what Dad actually owned and how he
owned it, Eric was basically handcuffed. Even if Eric had a war chest (which he
didn't) to file the appropriate action and haul Stepmom in before the probate
court to explain herself, the
situation would simply boil down to basically Eric's word against Stepmom, and
for those of you who do not try lawsuits that often, let me tell you; "he
said-she said" make awful cases, no matter what court you're in!
So, what could Dad have done differently?
And what can you do if you've married a wonderful new spouse but have certain
assets (and certainly items of purely one-of-a-kind or sentimental value) that
you wish to make certain your children from a previous relationship will get? Here are
a few
suggestions:
1) Make a Will or Living Trust -
While not an absolute guarantee, having a valid Will or well-prepared Living Trust
with well thought-out PR and/or trustee choices will certainly improve the odds
that property you identify will actually go to those who you want to have them. If you have children--particularly
minor children--from a prior marriage or relationship and you want to make sure
they do not get completely left out by their stepparent, then the preparation of
even a basic, simple Will is a critical first step. "But, Ben," you're probably
asking, "Dad supposedly had a Will, yet Eric and his siblings still got screwed over by Stepmom. What gives?" Well, Dad may have had a Will, or he may not have, we will
never know, which brings me to my second suggestion:
2) Choose your PR or Trustee
carefully - By preparing a Will or Living Trust, you can also designate who
you want to be PR or trustee--the person in charge of the estate
and following your wishes contained in the Will or Trust, respectively. However, as important
as a Will or Living Trust is to those of you out there with children by a prior
marriage/relationship, your choice of the PR under such Will (or trustee under
your Trust) is equally as important. It could mean the difference between having
your true desires for your estate carried out faithfully,
or having them end up in the bottom of a trashcan or in ashes in your fireplace, as
quite possibly in
the case of Dad. If you are remarried and have children from a previous
marriage, consider naming your adult son or daughter (or one of your
responsible, trustworthy brothers or sisters)
as PR or co-trustee. Your new spouse may not be
thrilled about it but, guess what? If he/she is unhappy now, can they really be
entrusted to do right by your children when you're no longer around? In the case
of Eric, if his Dad had perhaps named Eric, or his sister, or even both of them
(you can have "co" PRs or trustees),
as PR under his Will, there would have been no question of whether a Will
existed or not. Eric could have obtained PR appointment here in Arizona quite
painlessly, assumed control of all of Dad's probateable assets, administered the estate, and
made sure that Dad's wishes were properly carried out. However, though a (so
far) unmarried person, even I understand that sometimes people don't want to
necessarily have to tell their second spouse, "Gee honey, I think you're too
unscrupulous to be entrusted with my estate, so I'm going to make my sister
Diane my personal representative". This brings me to my
final suggestion...
3) Let people know about your Will or Trust - While I do not often recommend clients
place their Will in a safety deposit box, in situations where your new spouse
may or may not be trusted to do the right thing, it may mean the difference
between a Will or Trust being located and successfully administered by your
named PR/trustee or simply being lost (or ignored) forever. If you have
your Will or Trust prepared by an attorney, confirm that she/he will retain a
copy indefinitely. For copies of executed wills and trusts, at least, our
office keeps a copy and the client file indefinitely. Also, it goes without saying that
you should let your named PR and successor-trustee (the person who you want to
manage the Trust after you're gone) know where he/she can find your Will or
Trust, and even consider providing them with a copy. In addition to informing your PR or
trustee in advance, think about even letting others whom you can trust, such as
your CPA, best friend, pastor, and even your child(ren) whom you are trying to
protect, know where your Will or Trust is
kept in order to prevent possible guessing games as to where it might be
located. It will only save valuable time and effort, making things much easier on your loved
ones in an already difficult time.
Have
estate planning questions or concerns? Our law firm can help you assess
your needs and prepare or update your estate, health care, and asset protection
plan. For more information, please
e-mail or call our office at (602) 678-2970.
