Issuu on Google+

UNDERSTANDING INTESTACY IN ARIZONA (P 1 2) ART

OF

A Closer Look at Some Important Issues Surrounding The Concept of Intestacy

Larry Deason and Shawn Garner Estate Planning and Elder Law Attorneys in Yuma Arizona


The idea of intestacy is essential to understand if you want to make an effective estate plan. Like many others who don’t have a lot of experience with estate planning, you probably don’t have an extensive understanding of what intestacy is and why it’s important. To help you be more familiar with this concept, we’re going to take a look at some important issues surrounding the concept of intestacy.

Intestate and Testate Estates Everyone who dies leaves behind an estate. An estate is simply the collection of property and legal affairs that have to be dealt with after someone dies. The deceased person, called a decedent, can either leave behind a last will and testament or not. When someone dies without leaving behind a will, that person is said to have died intestate. The estate, therefore, becomes an intestate estate. On the other hand, someone who creates a last will and testament leaves behind a testate estate.

Last Will and Testaments The difference between a testate and an intestate estate is the existence of a valid last will and testament. Though precise figures are not known, it is estimated that somewhere between 30 and 50 percent of Americans create a last will and testament. In other words, half or more of everyone who dies in the country leaves behind an intestate estate.

Copyright 2013. Understanding Intestacy – Part 1 of 2

Deason Garner Law Firm

2


A last will and testament is a type of legal documents. In that document you can make choices about what you want to happen to your property after you die. You can also make other choices, but the inheritance choices are the main focus of your will. Though every capable adult has the ability to create a last will and testament, you are never under an obligation to do so. If you want to make a will you have to ensure that the document you make meets the legal standards imposed by your state. Like other states, Arizona law has very specific requirements that you must meet if you want to create a legally valid will. If you create a document and call it your last will and testament, but that document doesn’t meet the legal requirements of your state, a court will not accept it as a legally valid will. In other words, if you make a will that doesn’t comply with legal standards, you still leave behind an intestate estate.

Intestate Succession So, let’s assume that someone dies in the state of Arizona leaving behind an intestate estate. What happens to all that property? Who inherits it? Who will be responsible for paying any bills left behind by the decedent? Arizona probate laws answer all of these questions. These laws not only establish a set of procedures that apply when someone dies intestate, but they also predetermine who becomes the legal inheritors.

Copyright 2013. Understanding Intestacy – Part 1 of 2

Deason Garner Law Firm

3


For example, let’s say that your father dies leaving behind an intestate estate. Your father was not married when he died. He left behind three children and a sizable estate worth about $3 million. Because your father died intestate and did not leave behind a last will and testament, Arizona intestate succession laws determine who inherits the property. In this scenario we outlined here, each child would be entitled to receive an equal portion of the estate. Contrast this with a similar situation. Let’s say that instead of being single, your mother was still alive at the time your father died, and the two were still married. In this situation your mother would inherit the entire estate. This is true even if your father wanted to give something to each of his children as an inheritance. Of course, these are only a couple of inheritance scenarios. If, for example, your father had remarried, there would be a more complicated inheritance distributions. In other situations, someone who dies might leave inheritances to their parents, grandchildren, siblings, or even more distant relatives. In very rare circumstances, someone who dies leaving behind no identifiable living relatives will leave an estate that will be inherited by the state of Arizona. Though this doesn’t happen very often, it is a possibility.

Copyright 2013. Understanding Intestacy – Part 1 of 2

Deason Garner Law Firm

4


Probating an Intestate Estate If intestate succession laws determine who inherits property, there is the inevitable question of how these inheritances actually get transferred from the estate to the new owners. Again, we can use an example to show how this happens. Let’s say that your father dies leaving behind no surviving spouse and three surviving children. Upon his death, someone will have to go to an Arizona probate court and ask the court to open a new case. Once the court receives a petition to open the case, it will then determine who should act as the estate administrator. The administrator, also referred to as the personal representative, or if there was a last will and testament, as the executor, has the several responsibilities as the manager of the estate. First, the administrator has to determine exactly what the estate contains. Second, the administrator will have to allow any creditors the opportunity to file a claim against the estate if those creditors believe the estate owes them money. Third, the administrator will have to use estate funds to pay any valid claims, and do so in a specific order. Fourth, the administrator will have to distribute remaining estate property to the heirs. Finally, the administrator will have to submit reports to the probate court detailing his or her activity and showing that all applicable probate laws have been followed.

Copyright 2013. Understanding Intestacy – Part 1 of 2

Deason Garner Law Firm

5


Avoiding Intestacy Now that you know what intestacy is, our next paper on intestacy will discuss practical ways of avoiding it. In avoiding intestacy you can exert much more control over the probate process, as well as make inheritance choices that differ from the predetermined laws that would otherwise apply. If you’d like more information about intestacy or what you can do about it, contact us so we can discuss it with you.

Copyright 2013. Understanding Intestacy – Part 1 of 2

Deason Garner Law Firm

6


About the Authors Larry Deason

Shawn Garner

Larry Deason and his staff have been providing quality legal services for clients since 1971. Their mission is to assist people who are concerned about protecting their families from the devastating legal and financial impacts of disability, death, and taxes. Because he believes in the importance of an informed public, Deason spends considerable time educating consumers about Estate Planning issues. He writes a monthly Estate Planning column in The Sun, and the firm he regularly conducts Free monthly seminars on various Estate Planning topics. Deason and Garner, along with their staff, that in many instances, Living Trusts offer clients a proven and powerful tool for protecting their families from the expense and delay of probate, as well as a strategy for eliminating or minimizing federal taxes. Deason’s firm is staffed with paralegals and consultants who are experienced and trained in a variety of Estate Planning areas. The aim of each member of the firm is to help clients accomplish their Estate Planning goals while taking the mystery out of the whole process. We take pride in knowing that our clients feel “peace of mind” once the planning process is completed. The firm is always available for both Arizona residents and visitors alike to offer additional information about options with available with estate planning. Deason Garner Law Firm 242 West 28th Street, Suite A Yuma, AZ 85364 Phone: (928) 783-4575 www.DeasonGarnerLaw.com

Copyright 2013. Understanding Intestacy – Part 1 of 2

Deason Garner Law Firm

7


Understanding Intestacy in Arizona (Part 1 of 2)