by Richard Keyt, Arizona probate attorney
The Law of Intestate Succession
The primary reason people should have a Will is so they can insure their assets are inherited by the people or charities they select rather than the people their state of residence selects. Every state has a law called the law of interstate succession. This is the legal name given to statutes that set forth a priority plan that governs who inherits property of a resident of the state who dies without a Will.
You would think that having a Will should be a no brainer because everybody would rather have their property go to their desired heirs rather than hope their state of residence’s plan will give the assets to the same people. Unfortunately, over 70% of American adults do not have a Will. There are only three reasons why a person does not need a Will:
3. The person does not have anybody or any charity that he or she would like to inherit the person’s property.
2. The person does not have any probate assets.
1. The person is immortal or thinks he or she is immortal. Really! If reasons 3 and 2 do not apply to you and you have assets and loved ones, then you must not be planning to die. I submit to you that you owe it to your loved ones to prepare a Will to insure that your loved ones inherit your property.
A Will May Disinherit Heirs
One reason to adopt a Will that most people never think about is to disinherit one or more people who would inherit property if the person were to die without a Will. Arizona law provides that 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. Arizona law also provides that 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. See ARS Section 14-2101.
Arizona’s Laws of Intestate Succession
If you are an Arizona resident who owns any property and you do not have a Will, you must read this explanation of Arizona’s laws of intestate succession so you will know who will inherit your property when you die.
Rule 1 Deceased was Married at Time of Death: The following part of the intestate estate, as to both separate property and the one-half of community property that belongs to the decedent, passes to the surviving spouse:
1. If there is no surviving issue or if there are surviving issue all of whom are issue of the surviving spouse also, the entire intestate estate. The word “issue” means the decedent’s descendants of all generations, with the relationship of parent and child at each generation. Translation: If the deceased was married at the time of death and had no living kids, grandkids or great grandkids, everything goes to the surviving spouse. If the deceased was married at the time of death and had living kids, grandkids or great grandkids who are ALL the kids, grandkids or great grandkids of the surviving spouse everything goes to the surviving spouse.
2. If there are surviving issue one or more of whom are not issue of the surviving spouse, one-half of the intestate separate property and no interest in the one-half of the community property that belonged to the decedent. WARNING! WARNING! WARNING! If you are a resident of Arizona and have any living children, grandchildren or great grandchildren who are not the issue of your spouse and you want your spouse to inherit your community property YOU MUST HAVE A WILL THAT LEAVES YOUR COMMUNITY PROPERTY TO YOUR SPOUSE.
Example Nightmare 1: This is a very common, but dangerous scenario. If it applies to you, you need a Will to change the result. Homer Simpson is married to Marge and they have three kids. Homer had a fourth child with another woman before he met Marge. Homer and his son with the other woman have not spoken in twenty years. Homer and Marge are residents of Arizona (they left Springfield after Homer lost his job at the power plant that had to shut down because it could not afford to comply with the EPA’s December 2011 regulations requiring the plant to reduce emissions of 84 substances) and their most valuable asset is their $200,000 home that they own free and clear as community property. Homer does not have any separate property. Homer dies without a Will. Result of Arizona’s Law of Intestate Succession: Marge does not inherit Homer’s one half community property interest in the home. Homer’s one half of the home goes to equally to Marge’s three kids and Homer’s estranged child he hasn’t spoken to in twenty years. Shame on Homer for creating this very expensive nightmare for Marge. Homer’s negligence in failing to sign a Will cost Marge $100,000 and in affect made her partners with the estranged child. Instead of being the sole owner of the home she now owns one half of the home and the other one half is owned by her three minor children and the estranged child. Marge cannot sell or refinance the home without the consent of the four kids. Even if the estranged child is willing to sell the home so he/she can get paid the value of the 1/8th interest in the home Marge will have to spend thousands of dollars to go to court and get herself appointed the conservator of her minor children so she can sign the documents necessary to sell the home.
Lesson to be Learned: If you are married and have any children, grandchildren or great grandchildren who are not the issue of you spouse and you want your spouse to inherit your community property you must sign a Will that leaves the property to the spouse.
Rule 2 No Surviving Spouse or there is a Surviving Spouse Who Does Not Inherit all of the Deceased Assets: 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. This means that if the deceased had three children all of whom survived the deceased, the asset passing under this rule will go equall to all three children. If a child is deceased, but had children, the share that would have gone to the deceased child if the deceased child survived the decedent will go equally to the deceased child’s children (the decedent’s grandchildren). If a deceased child dies before the decedent and that child did not have any children, grandchildren or great grandchildren the share that would have gone to the deceased child will lapse and go equally to the other surviving issue of the decedent.
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 (the decedent’s sibling and/or their descendants) 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.
A person who does not survive the decedent by at least one hundred twenty hours is deemed to have predeceased the decedent and the decedent’s heirs are determined accordingly. If it is not established by clear and convincing evidence that a person who would otherwise be an heir survived the decedent by at least one hundred twenty hours, it is deemed that the individual failed to survive for the required period.
An adopted person is the child of that person’s adopting parent or parents and not of the natural parents. Adoption of a child by the spouse of either natural parent has no effect on the relationship between the child and that natural parent or on the right of the child or a descendant of the child to inherit from or through the other natural parent.
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