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Having a Last Will and Testament is important for several reasons. Possibly the most important reason is that a Last Will and Testament allows you to say what you want to have happen to your Estate. A Last Will and Testament may also be used as a tool in a more comprehensive Estate Plan that allows you to limit or avoid Probate all together. You have worked hard your entire life to acquire these assets. A Last Will and Testament is how you make those wishes known. That is why having a Will in Arizona is important.
The Default Rules- Where Decedent Leaves a Spouse
You may not be familiar with the term "intestacy". Intestacy means having died without a Last Will and Testament. The simple fact is that most Americans will die without a Last Will and Testament . Currently, about 60% of Americans do not have a Last Will and Testament. The vast majority of those who do have a Last Will and Testament, do not have a comprehensive Estate Plan.
Because of this, Arizona, as well as every other State, has established certain "default rules" for passing away without a Last Will and Testament. It goes like this:
When you pass away leaving a spouse, as long as all children of the deceased are of that marriage, the spouse gets all separate and community property of the deceased. If not all children of the deceased were born of that marriage, the spouse gets half of the decedent's separate and community property. A.R.S. § 14-2102.
The Default Rules- Passing Away Without a Spouse
When you pass away without a spouse, it starts to get really complicated, really fast. However, you may be thinking, "this does not apply to me. I am married." Well, what happens after you pass away? Or your spouse? Unless you and your spouse pass away at the same time, this will happen to one of you.
Where the decedent dies without a spouse, the decedent's descendants take by representation. A.R.S. § 14-2103(1). If there is no surviving descendant, the decedent's parents take equally. Id., at (2). When only one parent is still alive, that parent takes the entire estate. Id.
When there is no surviving descendant or parent, the decedent's siblings take by representation. Id, at (3).
If there are no surviving descendants, parents or siblings, but the decedent is survived by one or more grandparents or descendants of grandparents, half the estate passes equally to the decedent's paternal and maternal grandparents. Id., at (4).
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. Id., at (4).
What Did All of That Even Mean?
Did you follow all of that? That is why having a Will in Arizona is important. When you pass away without a Last Will and Testament you lose your say. Don't worry though, the State of Arizona will do it for you.
The truth is that you may look at the default rules above and say "yeah, that sounds fine." If that is you, let me ask you this, "have you ever heard of Probate?" Because Probate in Arizona is not the cheapest or most efficient process to distribute your assets to your family. That is why most people who do have an Estate Plan, establish a Revocable Living Trust to help avoid Probate all together.
Also, for many of us, the default rules are not adequate because we have other wishes for our Estate. You may want to leave specific items to children, family, and friends. Maybe you want to leave a portion of your Estate to your church, a charity, or some other institution. The default rules do not account for that.
Have Questions or Concerns?
HagEstad Law Group's Arizona office is located in Surprise, Arizona, however we service all of Maricopa County. If you have questions or concerns, feel free to give us a call. Our Surprise, Arizona Estate Planning Attorneys offer free 30-minute in-person, or over the phone, consultations. Upon request, we will come to you.
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HagEstad Law Group, PLLC is your trusted law firm to handle any estate law needs you might have.