Nikki’s Story

If you have young children, why you absolutely need an estate plan  

by Ben Bhandhusavee

An attractive young woman (we’ll call her Nikki) came to see me at my office last month. Nikki was a divorced mother with two young daughters from her former marriage.  Weeks earlier, her ex-husband had committed suicide.  While this was tragic in and of itself, it was made even more so by the fact that the ex had not left a will, trust, holograph, or any other instrument explaining what was to happen to his property and whether he wanted any of his property to go to his young daughters (as Nikki claimed). Granted, the ex was a man of modest means (he struggled to make child support payments), so why, some of you may ask, was a will even necessary?  As you will see, the answer is lies in the notion that, although you might not possess very much, you still might wish to leave specific things to certain people whom you care about and whom you know will appreciate and care for them.    

The Evil Mother-in-Law

In Nikki's case, her ex’s mother (we'll call her Broomhilda), despised Nikki ever since the divorce and now blamed her for son's suicide.  The ex had left behind certain collectibles and other personal property (coins, collectibles, and--ironically--a firearm collection) of notable value.  Nikki insisted that her ex had planned to use at least the coins to establish a college fund for the girls.  However, with no will to establish, first, who would be in charge of distributing, and who would ultimately get, his property at his death (timely or otherwise), the stage was set for poor results to occur. 

As often happens in the case of squabbling family members and small estates, Broomhilda entered the ex-husband’s dwelling almost immediately learning of the suicide and seized all items of value and claimed them as her own.  Even though Nikki later requested, on behalf of her daughters, Broomhilda turn over items of purely sentimental value (such as a knitted blanket and pillow the girls had made for their father, some DVD movies they had all watched together, his comb, his aftershave, etc.) by which the daughters could remember their father, Broomhilda flatly refused or ignored the requests, even though such refusal was illegal.

Arizona's statutory allowances

Arizona law does provide a built-in safety net for instances where minor children are either not provided for by will or, as in this case, there is no will altogether.  Under A.R.S. Title 14, Article 4, such children are entitled to up to a maximum of $7,000 in exempt property of the decedent and as much as $12,000 in family allowance (Arizona law also provides for an $18,000 homestead exemption, which did not apply in this case). These statutory allowances are required to be paid out of the estate have priority over claims of even the decedent’s creditors.  Thus, assuming the ex had personal property with a value of $10,000, the daughters would be entitled to, at a minimum, $7,000 of it as the personal property exemption, and very possibly the remaining $3,000 as part of the family allowance.

Possession is 9/10ths of the law (or can be, if you don't have a will or holograph)

Unfortunately, Arizona law notwithstanding, in this case Broomhilda had seized possession of all of the ex’s property already.  There is an old saying you learn early on in law school that “Possession is 9/10ths of the law”.  No more is this saying true than in Nikki’s case.  Because the ex had left no will or other written instrument identifying what he had, who he wanted to be in charge of it, and who he wanted it to go to, there was very little, if anything, Nikki could do to disprove Broomhilda’s argument that the ex wanted Broomhilda to take possession of and keep all of his belongings.  Simply put, because the ex had not put it in writing, there was nothing for a court to try and enforce and little "ammunition" to go after Broomhilda.  Just Nikki’s word against Broomhilda’s—an unfortunate "she-said/she-said" situation where the person with possession generally wins.

Even if Nikki had decided to sue Broomhilda, the unfortunate truth of the matter is that the costs of litigating over an estate of this size would quickly eclipse the value of the estate itself.  The problem? Again, without an itemization of the ex’s property, it was impossible to know if there were assets of sufficient (pecuniary) value to sue over.

As a result of Broomhilda’s appalling behavior, Niki's girls have been essentially left with nothing, including even minor sentimental artifacts, with which to remember the father they loved.  Any single parent who has and cares about their young or minor children has no excuse not to provide for them at death with a properly drafted will establishing, at a minimum, a choice of executor for one’s estate and detailed instructions for what property should go to your children.  Even if you are of modest means, as long as you can write you can outline your wishes in a writing to your children, signed and dated by you and kept in a safe and secure place where one or more persons you know and trust can find it if they have to.

If you have a current or anticipated probate matter or estate dispute and would like to schedule a consultation with an attorney, please e-mail or call our office at (602) 678-2970.

  [ Home ] [ Up ] [ Practice Areas ] [ Attorney Profile ] [ Consultations ] [ Representative Clients ] [ Articles ] [ Links & Resources ] [ Contact Us ]

Copyright © 2001-2008 The Bhandhusavee Firm, PLC

DISCLAIMER:  The information provided on The Bhandhusavee Firm, PLC web site is offered purely for informational purposes.   It is not intended to create or promote an attorney-client relationship, and does not constitute and should not be relied upon as legal advice.   It is not intended to seek professional employment in any state where lawyers in the firm are not admitted to practice, or in any state where this web site would not comply with applicable requirements concerning advertisements and solicitations.  We strive to make every attempt to keep this information current. We do not promise or guarantee, however, that the information is correct, complete or up-to-date, and internet subscribers and online readers should not act based upon this information without seeking professional counsel from an attorney admitted to practice in your location.   Transmission of information from The Bhandhusavee Firm, PLC web site is not intended to create, and its receipt does not constitute, an attorney-client relationship with The Bhandhusavee Firm, PLC or any of its individual attorneys or personnel.   If you elect to communicate with the firm, or any of its attorneys, through this web site, do not transmit any information about any matter (and particularly not any confidential information) that may involve you until the firm has agreed to represent you, and you have received confirmation of that fact in the form of a written engagement letter.