Arizona Laws of Intestate Succession
When a person dies, the property and assets they owned must go somewhere. If they died with a will or trust, their property will pass according to their express wishes. However, if they failed to create a will or trust, their property will pass via the Arizona laws of intestate succession. Basically, this means that if you don’t create a will, the state will create one for you. Here’s how it works:
The first thing a state probate court will look at is whether the decedent (the person who died) was married. Note that when a married Arizona resident dies, he or she has two types of property that passes: all of the decedent’s separate property and the decedent’s one half of the community property.
1. If the decedent was married and had no surviving descendants (children, grandchildren, etc.) all of the decedent’s separate property and the decedent’s entire one half interest in community property passes to the surviving spouse.
2. If the decedent was married and had surviving descendants who are all descendants of the surviving spouse, all of the decedent’s separate property and the decedent’s entire one half interest in community property passes to the surviving spouse.
3. If the decedent was married and had surviving descendants, one or more of whom are not descendants of the surviving spouse, one half of the decedent’s separate property will pass to the surviving spouse and one half of the separate property and decedent’s entire one half interest in the community property passes to the decedent’s descendants.
If you are not married, or if your spouse predeceased you, your property will go to your descendants per capita at each generation. Per capita at each generation means that the shares of the decedent’s property to be passed are determined by the number of descendants at each level. If you have three children and at your death at least one of them is still alive, your property will be divided into three equal shares, one for each child. If one or two of your three children passes away before you but that child left his or her own children, your estate will still be divided up into three equal shares, one for each of your children. Your children that are still alive will each receive a one third share. The remaining one third share(s) that would have gone to your children had they not predeceased you are now pooled and distributed equally to your deceased children’s children. Consider the following examples:
1. When Dave dies he has three living children, Craig, Cindy and Casey. Craig, Cindy and Casey will each get one third of Dave’s property.
2. However, suppose that Craig passed away before his father Dave, leaving three living children Greg, Peg and Meg. In that situation, when Dave dies, Dave’s living children Cindy and Casey will each inherit one third of Dave’s property, and Craig’s children Greg, Peg and Meg will each inherit one ninth of Dave’s property. Since Dave had surviving children, the shares were determined by the number of children. Three children, three equal shares.
3. Now suppose that Cindy also passed away before Dave, but is survived by her child Mindy. Now, when Dave dies, Dave’s living child Casey will inherit one third of Dave’s property. Craig’s children Greg, Peg and Meg will each inherit one sixth of Dave’s property. Cindy’s child Mindy will also inherit one sixth of Dave’s property. Again, since Dave had surviving children, the shares were determined by the number of children. Since Craig and Cindy predeceased Dave, their respective one third shares are combined and split equally between their children. This means that Craig’s three children and Cindy’s one child will each inherit equal shares of Craig and Cindy’s combined two thirds share.
4. Finally, let’s suppose that all of Dave’s children pass away before Dave. Casey was also survived by children, Stacey and Tracey. Since Dave has no surviving children, we move to the next level where there are surviving descendants, here Dave’s grandchildren. Now, each of Dave’s six grandchildren inherit a one sixth share of Dave’s property.
But what if you’re not married and don’t have any descendants? Then your property goes to your parents. If both of your parents are surviving, then to each parent equally. If only one parent is surviving then all your property goes to your surviving parent.
If your parents are not surviving, then your property will pass to your parents’ descendants per capita at each generation. This includes your siblings and any half siblings you may have. For example, if Doug passes away but is survived by his brother and sister Barry and Sally, Barry and Sally would each inherit one half of Doug’s property. If Barry passed away before Doug and was survived by two children, Larry and Harry, Doug’s sister Sally would receive one half of Doug’s property and Barry’s children would each receive a one fourth share.
If you have no surviving descendant, parent, or descendant of a parent, your property will pass to your surviving grandparents, if any, or your grandparents’ descendants. Half of your property will be allocated to your paternal grandparents and half to your maternal grandparents. If on either side (paternal or maternal) both grandparents are alive, then the entire one half share will be split equally between the grandparents. If one of the grandparents is deceased, the surviving grandparent will receive the entire one half share. If neither grandparent is alive, the one half share will be split per capita at each generation between the grandparents’ descendants.
Finally, if no one is qualified to claim your property under any of the rules discussed above, your property will pass to the State of Arizona.
What A KEYTLaw Estate Plan Can Do For You
Failing to plan ahead can have some serious unintended consequences. When Hollywood legend James Dean died tragically at the age of 29, his property was passed via the state’s laws of intestate succession since he didn’t have a will or trust. The result was that James’ father inherited his entire estate despite abandoning James as a child. Currently, the licensing fees alone generate $1 million to $3 million annually for the estate.
People often make the mistake of thinking that they don’t need an estate plan because their property will automatically pass to their spouse and then to their children. While that may happen in some cases, by no means is it guaranteed. The shape of the typical American family has changed dramatically in the last 50 years. Today, between 52% and 62% of first marriages end in divorce. About 75% of divorced people remarry, and 65% of those who remarry have children from the previous marriage. In addition, over 40% of American adults have at least one step-relative, like a step-son or step-daughter from a spouse’s prior relationship. For people with these types of blended families, relying on the laws of intestate succession can be dangerous.
If a person dies and leaves a surviving spouse and children, all of the decedent’s property passes to the surviving spouse as long as the children are all children of the surviving spouse. However, if the children are not all children of the surviving spouse, your surviving spouse will only get one half of your separate property. The other half of your separate property and your entire one half interest in the community property will go to your children. This means that if a person has one or more children from a prior marriage or other relationship, their surviving spouse will not inherit their entire estate. In most cases, the bulk of the decedent’s property will actually pass directly to the children. Even worse, there is no provision in the laws of intestate succession that provides for any property to go to step-children. So, if a person who has step-children dies without a will or trust, their step-children will inherit nothing.
The only way to prevent these things from happening and ensure that your property is distributed according to your wishes – not the state’s – is to create a will. With a will, the probate court will not need to look to the laws of intestate succession because your express wishes are written down and known to everybody. In addition, a will is a critical document if you have minor children as a will is the only place you can name a guardian for your children. You can also name a conservator for your minor children, who will handle your children’s assets and financial affairs until the children. In addition, you, not the probate court, can decide who will handle your estate after your death and collect and distribute your property. Finally, if you want to give your property to people who wouldn’t typically inherit under the laws of intestate succession, making a will is the only way to accomplish that goal. To learn more about Arizona wills, see my article entitled What is a Will?