What Happens if I Die Without a Will?
Most people own some form of property when they die. Whether it is real property (real estate), personal property (jewelry, furniture, art, collectibles, etc.), securities or any other form of property, the property owned by the deceased must go to someone else. But what happens if they die without a Will?
Arizona Laws of Intestate Succession
If the deceased never created a Last Will and Testament or a Trust, their property will pass via their state of residence’s inheritance laws, called the laws of intestate succession. What these laws do is dictate the distribution of the deceased’s property. Translation: the state creates a will for the person who died. In Arizona, these rules can be found in the Arizona Revised Statutes, Title 14, Chapter 2, Article 1. Here is an overview of how these rules work:
Distribution by Representation
First, determine if the deceased was married. If the deceased was married, as an Arizona resident he or she probably had two different types of property: community property and separate property. Thus, the property that needs to be distributed is all of the deceased’s separate property and the deceased’s one half interest of the community property.
Assuming the deceased’s spouse is still living:
- If the deceased person had no surviving descendants (children, grandchildren, etc.) all of the deceased’s separate property and his or her entire one half interest in community property goes to the surviving spouse.
- If the deceased person had surviving descendants and those descendants are also descendants of the surviving spouse, all of the deceased’s separate property and his or her entire one half interest in community property goes to the surviving spouse.
- If the deceased person had surviving descendants but his or her descendants are NOT all descendants of the surviving spouse, half of of the deceased’s separate property will go to the surviving spouse and the other half of the deceased’s separate property AND his or her entire one half interest in the community property will go to the deceased person’s descendants.
If the deceased person was not married of if his or her spouse died before them, the deceased’s property will go to his or her descendants “by representation”. This means that the deceased’s property will be divided up into shares determined by the number of descendants at each “level” where there is at least one surviving descendant (see the diagram below – B is a level, C is a level). If there are no surviving descendants on a level, the property is distributed equally to the people on the next level where there are surviving descendants. Review the following chart and scenarios:
A1 is the person who died. A1 had three children, B1, B2 and B3. B1, B2 and B3 all have children, C1, C2, C3, C4 and C5. C5 has two children, D1 and D2.
- If B1, B2 and B3 are all still alive when A1 dies, A1’s property will be divided into three equal shares: one share for B1, one share for B2, and one share for B3.
- A1 dies. B1 and B2 are still alive, but B3 has died. A1’s property will be divided into three equal shares: one share for B1, one share for B2, and one share for B3. However, since B3 died before A1, B3’s share will be split between his children, half to C4 and half to C5.
- A1 dies. B1 is alive but B2 and B3 are dead. A1’s property will be divided into three equal shares: one share for B1, one share for B2, and one share for B3. However, since B2 and B3 died before A1, their one third shares will go to their respective children. B2’s entire one third will be split equally to B2’s children, giving half of B2’s one third share to C2 and half of B2’s one third share to C3. B3’s share will be split equally between C4 and C5, giving each one half of B3’s one third share.
- A1 dies. B1, B2 and B3 are all dead. Since all A1’s children are dead, the distribution of A1’s property skips to the next “level” where there are surviving descendants. In this illustration, that’s level C. A1’s property will then be divided into five equal shares: one for C1, one for C2, one for C3, one for C4, and one to C5.
- A1 dies. B1, B2 and B3 are all dead. Since all A1’s children are dead, the distribution of A1’s property skips to the next “level” where there are surviving descendants. In this illustration, that’s level C. A1’s property will then be divided into five equal shares: one for C1, one for C2, one for C3, one for C4, and one to C5. However, assume that C5 died before A1. Now C5’s one fifth share will be split equally between his children, giving half to D1 and half to D2.
If the deceased person wasn’t married and doesn’t have any descendants then the property passes to his or her parents. If both parents are still alive, the property will go to to each parent equally. If only one parent is alive, all of the deceased’s property goes to the surviving parent.
If neither of the deceased’s parents are alive, then the deceased’s property will pass to his or her parent’s descendants by representation (see diagram and examples above). This would include the deceased’s siblings.
If the deceased person has no surviving descendants, parents, or siblings, then his or her property will go to surviving grandparents if any. Half of the deceased’s property will go to the paternal grandparent’s side while the other half will go to the maternal grandparent’s side. If both grandparents are alive on either side (maternal side or paternal side), that side’s half will be split equally between the grandparents. If one of the grandparents already died one one side, the surviving grandparent will take that side’s entire one half share. If neither grandparent is alive on a side, that side’s one half share will to the grandparent’s surviving descendants by representation (the deceased person’s aunts and uncles). If there are no surviving grandparents, the deceased’s property will go to the grandparent’s descendants per representation (beginning on the level where there is one or more surviving descendants).
If no one can claim the deceased person’s property under any of the situations described above, the deceased’s property will go to the State of Arizona.
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.
Problems With Blended Families
Leaving your property to be distributed pursuant to the laws of intestate succession can have negative consequences for blended families. While many people think their property will automatically go to their spouse and children, it probably won’t end up the way you want if you have a blended family. Consider that 50% – 60% of all first marriages end in divorce, and 75% of those divorced people remarry. Of those divorced people who remarry, 65% of them have children from their previous marriage. As you can see, blended families are more common than not today.
The laws of intestate succession are not kind to blended families. If a person who dies leaves a surviving spouse and children who are all children of the surviving spouse, all the deceased person’s property goes to the surviving spouse. But, if the children are NOT all children of the surviving spouse then the surviving spouse may get virtually nothing. This is because the laws of intestate succession provide that the surviving spouse only gets one half of the deceased’s separate property while the children split the other half of the deceased’s separate property and the deceased’s entire one half interest in the couple’s community property. Since all property acquired during a marriage in any way other than via gift or inheritance, for many married couples the majority of their property is community property. In this blended family situation, half of the couple’s property will be given to the kids instead of the surviving spouse.
Having step-children can also be a problem. The laws of intestate succession include no provisions that provide for the distribution of property to step-children. They will inherit nothing.
Avoided the Laws of Intestate Succession With an Estate Plan
You have two options: you can create a Will (or Trust) or the state will create one for you. When left with those two options, most people would rather create their own plan. Neal Law Firm has a number of fixed fee estate plan packages that give you everything you need to be sure your property passes to the people YOU pick, not the state. Learn more about the Neal Law Firm’s estate plan packages, or call us at (480) 699-7992 to speak to a Phoenix wills and trusts lawyer.
Learn more about the Neal Law Firm’s estate planning services, including an explanation on wills and trusts.
