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What if I Die Without a Will?


What does it mean to die “intestate”?

 

If you die intestate (without a will), your state's laws default law of descent and distribution will determine who receive your property. The laws vary from state to state, but typically the distribution would be to your spouse and children, or if none, to other family members. A state's plan often reflects hour the legislature has decided how most people would dispose of their estates and has built in protections for certain beneficiaries,



particularly minor children. A will allows you to alter the state's default plan to suit your personal preferences. It also permits you to exercise control over personal decisions that default provisions cannot address.

Arizona’s laws of intestate succession are, briefly:

  • Children and no spouse --> children inherit all.

  • Spouse no children --> spouse inherits all.

  • Spouse and children from you and spouse --> Spouse inherit all.

  • Spouse and children from you and another person --> Spouse inherit ½ of your separate property and keeps ½ of community property. Children inherit ½ of separate property and inherit the ½ interest in your half of the community property.

  • Parents and no spouse or children --> parents inherit all.

  • Sibling, no spouse, parents, or children --> Siblings inherit all.

  • The default law of survivorship in Arizona is 120 hours, meaning a person must outlive you by 120 hours to inherit property from your estate.

Washington’s laws of intestate succession are, briefly:

  • Children and no spouse --> children inherit all.

  • Spouse no children, parents, or siblings --> spouse inherits all.

  • Spouse and children --> Spouse inherits all of the community property and ½ of your separate property. Children inherit ½ of your separate property.

  • Spouse and parents --> Spouse inherits all of your community property and ¾ of you separate property. Parents inherit ¼ of your separate property.

  • Spouse and siblings, but no parents --> Spouse inherits all of you community property and ¾ of you separate property. Siblings inherit ¼ of you separate property.

  • Parents and no spouse or children --> Parents inherit all.

  • Sibling, no spouse, parents, or children --> Siblings inherit all.

  • The default law of survivorship in Washington is 120 hours, meaning a person must outlive you by 120 hours to inherit property from your estate.

How Does a Will Effect Distribution?

 

A Will provides for the distribution of certain property owned by you at the time of your death, and generally you may dispose of such property as you choose.  Your right of disposition; however, may be subject to forced heirship laws of most states that prevent you from disinheriting a spouse and, in some cases, children. For example, many states have spousal rights of election laws that permit a spouse to claim a certain interest in your estate regardless of what your will (or other documents addressing the disposition of your property) provides. Your Will does not govern the disposition of your property that is controlled by beneficiary designations or by titling thus these assets passes outside your probate estate.  

Non-probate assets include: property titled in joint names with rights of survivorship, payable on death accounts (POD), life insurance, retirement plans and accounts, and employee death benefits. 

These assets pass automatically at death to another person, and your Will is not applicable to them unless they the estate is the named beneficiary on the beneficiary designations form. Your probate estate consists only of the assets subject to your Will, or to a state’s laws of intestacy if you have no will, which the probate court may have authority.  Reviewing beneficiary designations, in addition to preparing a will, is a crucial part estate planning.  Additionally, property included in your probate estate has nothing to do with whether property is part of your taxable estate for estate tax purposes.

Wills can be utilized to achieve a wide range of family and tax objectives. A simple Will can  provide for the outright distribution of assets as you wish. A Will creating a trust(s) upon your death, the will is often called a Will with a Testamentary Trust. A Will may leave probate assets to an existing revocable living trust (RLT, aka: inter vivos trust or living trust), often called a pour over will. The use of an RLT or those created by a will generally is to ensure continued property management, divorce and creditor protection for the surviving family members, protection of an heir from his or her own irresponsibility, provisions for charities, or minimization of taxes.

A number of important objectives may be accomplished in your Will in addition to your desired disposition of assets.

  • You may designate a guardian for minor children if you are the surviving parent, thereby minimize court involvement.  You may appoint a trustee to manage property funding that trust for the support of your children, you may eliminate the need to post bonds (money posted to secure a trustee’s properly carrying out the trustee’s responsibilities) and avoid court supervision of the minor children’s inherited assets.

  • You may designate an executor (personal representative) of your estate. An independent executor can eliminate the need for court supervision of the settlement of your estate.

  • You may provide for persons who would not inherit under the state’s intestacy laws such as stepchildren, godchildren, friends or charities. 

  • If you are acting as the custodian of assets of a child or grandchild under the Uniform Gift (or Transfers) to Minors Act (often referred to by their acronyms, UGMA or UTMA), you may designate your successor custodian and avoid the expense of a court appointment.

Again, a Will does not govern the transfer of certain non-probate assets, which pass by operation of law (title) or contract (such as a beneficiary designation). For example, real estate and other assets owned with rights of survivorship pass automatically to the surviving owner. An IRA or insurance policy payable to a named beneficiary passes to that named beneficiary regardless of your Will.

How Do I Execute (sign) a Will?

Wills must be signed in the presence of witnesses and certain formalities must be followed or the will may be invalid. In many states, a will that is formally executed in front of witnesses with all signatures notarized is deemed to be “self-proving” and may be admitted to probate without the testimony of witnesses or other additional proof.  Even if a Will is ultimately held to be valid in spite of errors in execution, addressing such a challenge involves costly court intervention. A later amendment to a will is called a codicil and must be signed with the same formalities. Be cautious in using a codicil because, if there are ambiguities between its provisions and the prior Will it amends, problems can ensue. In some states, such as in Washington and Arizona, the Will may refer to a memorandum or writing that distributes certain items of tangible personal property, such as furniture, jewelry, and automobiles, which may be changed from time to time without the formalities of a Will. Proceed with caution; however, this type of separate document can create potential confusion or challenges if it is inconsistent with the terms of the Will.

Arizona Law of Proper Will Execution: A Will may be adopted and be self-proved before or after it is signed if it is acknowledged “by the testator and by affidavits of the witnesses if the acknowledgment and affidavits are made before an officer authorized to administer oaths under the laws of the state in which execution occurs and are evidenced by the officer’s certificate, under official seal” in substantially the form required by the statute. A.R.S. § 14-2504.

A non-self-proved Will must be in writing (in physical form) and:

  • Signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction.

  • Signed by at least two people, each of whom signed within a reasonable time after that person witnessed either the signing of the will as described in paragraph 2 or the testator’s acknowledgment of that signature or acknowledgment of the will.

In order to probate a non-self-proved Will, it generally requires the testimony of a witness that the Will is authentic and genuine. A.R.S. § 14-2504

Arizona adopted Electronic Will signature in 2019.To be valid, an electronic will must:

  1. Be created and maintained in an electronic record.

  2. Contain the electronic signature of the testator or the testator’s electronic signature made by some other individual in the testator’s conscious presence and by the testator’s direction.

  3. Contain the electronic signatures of at least two persons, each of whom met both of the following requirements: (a) Was physically present with the testator when the testator electronically signed the will, acknowledged the testator’s signature or acknowledged the will. (b) Electronically signed the will within a reasonable time after the person witnessed the testator signing the will, acknowledging the testator’s signature or acknowledging the will as described in subdivision (a) of this paragraph.

  4. State the date that the testator and each of the witnesses electronically signed the will.

  5. Contain a copy of a government-issued identification card of the testator that was current at the time of execution of the will.

 

Washington Law of Proper Will Execution: A will shall be signed by the testator or by some other person under the testator's direction in the testator's presence or electronic presence, and shall be attested by two or more competent witnesses, by subscribing their names to the will, or by signing an affidavit that complies with RCW 11.20. Washington adopted Electronic Will signature in January of 2022.

 

Jointly Owned Property

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f you own property with another person as joint tenants with right of survivorship, not as tenants in common, the property will pass directly to the remaining joint tenant upon your death and will not be a part of your probate estate governed by your Will (or the state’s laws of intestacy if you have no will).

Frequently, people will title bank accounts or securities in the names of themselves and one or more children or trusted friends as joint tenants with right of survivorship. This is sometimes done as a matter of convenience to give the joint tenant access to accounts to pay bills.  It is important to realize that the ownership of property in this fashion often leads to unexpected or unwanted results. Disputes, including litigation, are common between the estate of the original owner and the surviving joint tenant as to whether the survivor's name was added as a matter of convenience or management or whether a gift was intended. The planning built into a well-drafted Will may thwarted by an inadvertently created joint tenancy that passes property to a beneficiary by operation of law, rather than under the terms of the Will. In some instances, a power of attorney document giving the trusted person the power to act on your behalf as your agent with regard to the account in order to pay bills will achieve your intended goal without disrupting your intended plan of disposition.

Many of these problems also are applicable to institutional "pay on death" forms of ownership of bank, broker, and mutual fund accounts and savings bonds. Effective planning requires knowledge of the consequences of each property interest and technique.

In many instances, testators prepare a Will believing it will govern who will inherit their assets when in fact, the title (ownership) of various accounts or real property, for example, as joint tenants, or beneficiary designations for IRAs, life insurance and certain other assets control the distribution of most or even all assets. This is why merely addressing your Will is rarely sufficient to accomplish your goals.

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