Where There Is No Will, Is There Still A Way?


When someone dies without having signed a Will, family members may worry that costs of settling the decedent’s estate will be higher, or that the government will end up with some share of the estate. In fact, there is little cause for concern.

In the absence of a Will, the law of “intestacy” decides who receives a decedent’s estate. In effect, the state has written a sort of Will for each us, to take effect in case we never get around to writing our own. In Arizona, the law of intestacy dictates that property will pass to:

  1. the decedent’s spouse (unless there are children who are not also children of the surviving spouse),
  2. if there is no spouse, to children of the decedent,
  3. if there are no children or spouse, to the decedent’s parents (and, if they are also deceased, to their descendants–in other words, to the decedent’s brothers, sisters, nephews and nieces),
  4. if none of the above exist, to the descendants of the decedent’s grandparents or up to five generations back.

[Note: though states tend to have similar rules, they may vary. The list here is specific to Arizona decedents]

In other words, almost everyone’s estate will pass to someone, even though they may be very remotely related. In those rare circumstances where a decedent is not survived by any relatives closer than descendants of great-great-great-grandparents, then their estate will “escheat”–a fancy word for property which goes to the state.

Absence of a Will does not effect how much tax an estate must pay. Frequently, it will not effect the administrative expenses of settling the estate. Unless there is difficulty determining who the decedent’s relatives may be, absence of a Will should not make the process more difficult or time consuming. Nor will the presence or absence of a Will determine whether a probate is necessary (in Arizona, the necessity of probate proceedings is determined by the value of assets owned by the decedent alone–not in joint tenancy, for example–and not by the marital status, family relationships or presence of a Will).

So why bother to write a Will? Many people will choose to leave property to someone other than those favored by the law of intestacy. This is particularly true for those who have both a surviving spouse and children from a prior marriage; Arizona law assumes such people wish to divide their property between their spouse and children, and experience suggests that few wish to make distribution in that manner. In addition, a Will can name a Personal Representative (the person who used to be called an Executor), and can waive bond for that person.

Most people’s estates are never subjected to the probate process (and hence their Wills are not utilized). Among those who do go through probate, many (perhaps most) have not written Wills, or their Wills can not be found. Even among those who do write Wills, most make provisions very similar to the laws of intestacy.

Still, preparing a Will can provide peace of mind, and usually at a modest cost (for details about costs of preparing Wills and related estate planning documents, visit FLEMING & CURTI’S website at the address below, or contact our office for a fee schedule). Estate planning should also include consideration of a durable power of attorney and a health care directive; both documents will frequently accompany a Will.

Preparing a Will permits one to consider small items (family heirlooms, for example) which should pass to particular individuals. A consultation with a qualified lawyer will give you an opportunity to consider all these issues.

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