ProbateGuru

Question:  My mother owned her home.  After she married my step father she changed the title on the home to her and her husband as joint tenants with right of survivorship.  Her will says that on her death her home goes to me and my siblings.  She died recently, but her husband continues to live in the home.  How do my siblings and I get title to the home?

Answer:  Unfortunately you and your siblings are out of luck.  Because the title to the home was held by your mother and her husband as joint tenants with right of survivorship her interest in the home was transferred automatically on her death to her husband and he became the sole owner of the home.

The fact your mother’s will or trust provides that the home goes to you and your siblings is irrelevant.  A will controls only assets that remain in the name of the deceased after death and the home did not remain in your mother’s name after her death.  A trust controls only assets owned by the trust and the trust did not own the home.

You should have investigated the title to the home and asked your mother if she wanted the home to go to her husband or to you and your siblings.  If she said she wanted the home to go to  you and your siblings then you should have explained to her why she needed to change the title and perhaps assisted her it making the changes needed to carry out her desire.

Lesson:  After your loved one dies it is too late to change the result of the failure to plan or the failure to plan properly.  Review your loved one’s situation while he or she is alive so you can help prevent property going to the wrong person or people.

Question:  My father’s will was witnessed by two witnesses, but one of them was my sibling who is named as an heir under the will.  Does the fact an interested person witnessed the will invalidate the will?

Answer:  No.  Arizona Revised Statutes Section 14-2505.B states: “The signing of a will by an interested witness does not invalidate the will or any provision of it.”

Question:  My father died recently.  He was married to a woman who is not my mother.  My father told me many times that I would inherit property from him, but to date I have not inherited anything.  His wife says he did not have a will or a trust and did not leave me anything.  I think he signed both documents.  How can I find out if my Dad had a will or trust and if he left me any property?

Answer:  Your question is one of the most common questions people ask me.  Unfortunately your loved one created a very big problem for you and your siblings.  The purpose of a will or a trust is to state who inherits property when a person dies.  If the heirs do not get a copy of the will or the trust then they may never get their inheritance.

In my experience more often than not the spouse at the time of death will not disclose to the children of the deceased that are not the spouse’s children whether or not:

• the deceased had a will or a trust
• the deceased left any property to the children.

If the surviving spouse will not voluntarily give the children of the deceased a copy of the will or the trust it is unlikely the children will ever get a copy of the document or any inheritance.

Important Lesson:  If you expect to inherit any property from your parent ask your parent to give you a copy of his or her signed will and trust, if any.  Review the document and if you find any problems, ask your parent about it.  If you are a parent who remarried or have a significant other give  your children who will inherit your property a copy of your signed will and trust.  Don’t create a problem for your loved ones by keeping them in the dark and trusting that your spouse or significant other will do the right thing.

Question:  What is the minimum age a resident of Arizona can make a legally binding will?

Answer:  Arizona Revised Statutes Section 14-2501 states, “A person who is eighteen years of age or older and who is of sound mind may make a will.”

Question:  My parents’ wills contain a clause that says that if anybody challenges the will in court the challenger gets $1.  Is that clause enforceable in Arizona?

Answer:  No.  Arizona Revised Statutes Section 14-2517 states, “A provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for that action.”

Question:  When I lived in New Jersey my lawyer prepared a will that I signed.  My will is valid under New Jersey law.  I moved to Arizona.  Is my out of state will valid in Arizona?

Answer:  Yes.  Arizona Revised Statutes Section 14-2506 states, “A written will is valid if . . . its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode or is a national.”

Question:  My spouse borrowed money to buy our home and held sole title to the land.  He died and I became the sole owner of the home.  The lender is threatening to call the balance due on the loan and foreclose on the property.  Can the lender force me to refinance and foreclose on the home if I do not refinance?

Answer:  No.  A federal statute called the “Garn–St Germain Depository Institutions Act of 1982” prohibits lenders from enforcing due on sale clauses in certain situations.  A due on sale clause refers to language in loan documents that gives the lender an option to demand payment in full of the balance owned if the borrower transfers title to land that is security for the loan.

When a loan document contains a due on sale clause and the one borrower dies the lender may or may not be able to call the loan.  If the land that is security for the loan goes to the spouse of the borrower the Garn St. Germaine Act prohibits the lender from enforcing the due on sale clause.  See 12 USC Section 1701j-3, which states:

“With respect to a real property loan secured by a lien on residential real property containing less than five dwelling units . . . or on a residential manufactured home, a lender may not exercise its option pursuant to a due-on-sale clause upon— . . .

(3) a transfer by devise, descent, or operation of law on the death of a joint tenant . . .

(5) a transfer to a relative resulting from the death of a borrower;

(6) a transfer where the spouse or children of the borrower become an owner of the property . . .

(8) a transfer into an inter vivos trust in which the borrower is and remains a beneficiary and which does not relate to a transfer of rights of occupancy in the property.”

See a Chicago Tribune article called “6 Situations Where The Lender Can’t Call Your Mortgage.”

Question:  If I die, how can my heirs avoid probate of my vehicle registered with the Arizona Department of Motor Vehicles?

Answer:  Complete an Arizona DMV form Arizona Vehicle Beneficiary Designation For Vehicle Title Transfer Upon Death form 96-0561 R07/11 for each vehicle.  When properly completed and attached to the title of the vehicle, your heir(s) can use the form to change the title of the vehicle after your death without the need for an Arizona probate.

Question:  Bart Simpson asks, before she died my mother Marge Simpson who resided in Sun City, Arizona, wrote the following on a piece of paper: “On my death I give my home to my daughters Lisa Simpson and Maggie Simpson.”  She signed and dated the note.  My father Homer died before my Mom.  Is the note a valid Will in Arizona?

Answer:  Yes.  Arizona Revised Statutes Section 14-2503 states:

A will that does not comply with section 14-2502 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.

I’m sorry to tell you that you have been disinherited by your Mom.  The home will have to go through probate in an Arizona probate court unless the value is less than $100,000.

To learn more about this probate exemption for Arizona real estate see “Small Estate Probate Exemption – Real Property.”

Question:  I would like to be the personal representative of my loved one’s estate who was an Arizona resident.  Will my duties require that I come to Arizona?

Answer:  Maybe.  We can open a probate and get a non-Arizona person appointed as the personal representative of the estate of a deceased Arizona resident in most cases without the need for the personal representative to come to Arizona.  If any court hearing are held, the personal representative is usually able to participate by phone.

Note:  One of the duties of the personal representative is to collect and protect the assets of the decedent’s probate estate.  This duty will require the personal representative or somebody trusted by the personal representative to take control of the assets.