Legal Question in Wills and Trusts in Arkansas

Re: No will...just something handwritten on a piece of paper...

The first thing you should do is immediately file a Demand for Notce. This will insure that no will is admitted to probate or an admiistrator of the estate appointed without notice to you and an opportunity to attend any hearing on the will or the appointment. A handwritten will can be admitted to probate if it meets certain requirements. It must be written entirely in the handwritting of the person making the will. It must have a signature at the end, and there must be a clear intent shown that it was intended to be a will. The person making it must also be competent and over 18 years old at the time the will was made. Of course the will will pass only property that goes through probate. Other property may pass outside of probate.

Have you seen a copy of the writing?

Are you aware of the property that your mother owned and how she owned it?

If you are entitled to a share, your brother cannot keep it from you because you want your son to act on your behalf.

Please call if you have other questions.

Wayne Ball

501.312.8600

Re: No will...just something handwritten on a piece of paper...

A reply was posted by Mr. Ball of Arkansas. I agree with his reply.

It may not be necessary for you to travel at all. You do not need to be physically present to receive your share. You have a right to request a copy of any purported "will." That can be done by mail. I am not sure what your son was going to do by travelling to Arkansas. Heirs receive their inheritance regardless of their own state of residence. You can file a Demand for Notice with the Arkansas court by mail.

An attorney at law, or an agent under a power of attorney (attorney-in-fact) does have authority to act on your behalf, but again, I am not sure why you need to travel. Was the estate so substantial that you feel a need to have somone personally in that state? Are there personal possessions, household items, etc. that need to be collected and transported?

Request a copy of any will or purported will, and file your demand for notice. Most states require that children receive notice of any probate proceeding anyway.

Best of luck. If you need further help we offer free initial consultations at 480.835.1500.

Sincerely,

James D. Jenkins

Mesa, Arizona

[email protected]

Re: No will...just something handwritten on a piece of paper...

You can appoint your son to act on your behalf with a Power of Attorney document, properly made and signed. Your brother has no right or power to stop your Agent under your power of attorney from acting on your behalf.

As the other attorneys properly stated, you can demand that the probate court give you notice of any probate proceedings, so that you can object to any action being requested of the court and so that you can see what is being filed and what is taking place.

You could or your son could file a petition for appointment as personal representative of the estate. We don't know whether or not there is indeed a valid (holographic) will or if it is an intestate estate and therefore, the assets in the estate would be divided according to state law.

You need to find out if the "something handwritten" has been submitted to the court as a last will and testament and/or if a probate has been opened. You have a legal right to know all that is going on in the proceedings, and your brother cannot dictate to you what is your "share."

You do not need to go to court, until a hearing is set to actually resolve issues in the case. Many times, you can appear by telephone. Cases often have many scheduled hearings, some of which may be postponed or continued, and it takes time to make sure that creditors have an opportunity to make claims.

You may want to go there/by your son as your agent, to see what the assets of the estate actually are. Otherwise, it is a time consuming process, so if you can appear telephonically, then you will have a chance to hear exactly what is going on, what is said, and what the judge says, and also, the judge can hear what you have to say.

You

Re: No will...just something handwritten on a piece of paper...

There are several issues that need to be taken care of. First of all, is there a will at all? I assume that the property is in AR since you mentioned the travel to get here. In Arkansas, there are several conditions that have to be met for a handwritten will to even be considered a will.

Then, if it is a will, and you are left out, did she mention in the will that she was leaving you out? If the will doesn't specifically say you are left out, then you will get the same share of her estate that you would have gotten had she not had any will at all. That is the law in Arkansas.

If there is a will and your mother wrote that she is not giving you anything, then you are not entitled to anything and may want to work with your brother, if he is willing to offer you something.

If there is no will or there is a will and you are not mentioned in it, then your brother cannot do anything to affect what you receive from the estate. Whether you send your son or not, he can't keep anything from you that is righfully yours from her estate. However, he may be saying that since you didn't get anything from the will, he is deciding what to share with you. Obviously, then he has the ability to do what he chooses.

But, as the other attorneys wrote, the first thing you need to do is send a demand of notice to the court in the county in which your mother resided at the time of her passing. What county was that? The court will then keep you informed about what is going on in the estate.

No matter what, you do not have to physically appear, or have a power of attorney appear, to receive what you are supposed to receive.

If I were you, the first thing I would do is get a copy of the supposed will. It will have to be determined whether it is a will. If it doesn't even mention you, you need to petition the court to receive your share. This is what's called a Petition for Pretermitted Child. You probably will want an attorney's help for this, as there may be a hearing on this petition. I would strongly advise having an attorney look over this supposed will and then advise on what your legal rights are and the best way to receive what you would be entitled. Many of us offer free initial consultations.

Whatever you do, please act soon so that any all rights you have can be properly preserved and acted on. Good Luck to you.