Dying without a Will in Arizona

A short course in our State's law of intestate succession

by Ben Bhandhusavee

Many of you may have heard the shocking statistic that approximately 7 out of 10 Americans do not have a valid will or estate plan.  If your Uncle Joe never got around to saying in a valid will or estate plan that you get the classic Mercedes roadster he and you so lovingly restored, Arizona law will very likely decide who gets it for good.  The fancy name for it is “the law of intestate succession”, and it basically is a statutory scheme which determines the order in which people inherit assets when there is no valid will or other estate plan.

So what’s the big deal, you ask?  Assume Uncle Joe lived in Arizona when he passed. If Uncle Joe’s spouse outlives him, then she will inherit both Joe’s separate property (stuff acquired before marriage or by gift) and the one-half of the community property (stuff acquired after marriage) that belonged to Uncle Joe (the other half of the community property already belonged to her).  The exception to this rule is the situation where Uncle Joe had children who were not also the children of his surviving spouse.  In that scenario, one-half of Uncle Joe’s separate property and his one-half of the community property would go to his children.  So, Uncle Joe’s widow would get half of his separate property and only her one-half of the community property.  The rest goes to all of his children.

Now if Uncle Joe’s wife predeceased her, or if he had children from a prior marriage, then under Arizona law the intestate estate goes to Uncle Joe’s “descendants by representation.”  What this means is that Uncle Joe’s estate is split equally among the children.  But if one of the children has already died leaving other descendants (e.g., Joe’s grandchildren), then the portion that would have gone to the grandchildren’s parent will be split equally amount the descendants of that generation.  So, if Uncle Joe had three children and two of them survived him, then each of the two surviving children would receive one-third of the intestate’s estate.  If the third, non-surviving, child left grandchildren, then those grandchildren would split up one-third of her estate equally amongst them.

So now what happens if Uncle Joe has no surviving spouse and no surviving descendants?  Then, Uncle Joe’s intestate estate would go to his parents equally if both survived him, or to his surviving parent.

If there is no surviving descendant or parent, then the intestate estate goes to the descendants of Uncle Joe’s parents or either of them by representation.  In other words, if Uncle Joe had no surviving spouse, descendants or parents, then the property would go to his brothers or sisters or their kids.  So, if Uncle Joe did not have a surviving spouse, did not have any surviving descendants (your cousins), and your grandparents are dead, then (finally) you might get that Benz roadster.

Still with me? Then let’s take this to the extreme and talk about what happens if Uncle Joe has no surviving spouse, no surviving descendants, no surviving parents or descendants or either parent.  In that case, if Uncle Joe is survived by one or more grandparents or descendants of grandparents, then half of the intestate estate passed to Uncle Joe’s paternal grandparents equally if both survive or to the surviving paternal grandparents or the descendants of the descendants’ paternal grandparents or either of them if both are deceased with the descendants taking by representation.  The other half of the intestate estate of Uncle Joe passes to his maternal relatives in the same manner.  If there is no surviving grandparent or descendant of the grandparent on either the paternal or the maternal side, then Uncle Joe’s entire estate goes to his relatives on the other side in the same manner as it would have been distributed to the other half of the family.  

By now I think you the reader get the point that everyone owes a responsibility to their love ones to have a proper will or estate plan.  After all, when you get together with your cousins for Thanksgiving dinner and they’re using the antique china that you were promised, Uncle Joe probably wouldn’t have appreciated you guys breaking it over each other’ heads. Too bad she didn’t write down her intentions in a valid will.

Please let me know if I can be of any assistance in properly planning your estate.  I can’t believe you would rather have the state do it for you. 

Because Arizona is one of eight community-property states, the rules may be somewhat different than they would be in other states.  Nevertheless, the general scheme for distributing the assets of a decedent to the heirs in the absence of a will or other estate planning document is somewhat similar throughout the country. 

All too often we get situations where people tell us that a relative “wanted” them to have a certain item or asset of the deceased, however, because the deceased relative never properly documented such intentions in a will or proper estate planning instrument.  That failure to make a proper formal estate plan often prevents the intentions of the deceased person from being fulfilled. 

Have estate planning questions or concerns?  Our law firm can help you assess your needs and prepare or update your estate, health care, and asset protection plan.  For more information, please e-mail or call our office at (602) 678-2970.  

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