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Who Inherits Intestate? An Introduction to Generational Lines

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Inheritance can be a big deal for most people. Your assets are important to you, but so are the people who you love. You need to make sure that the people you want to inherit will in fact inherit. The best way to avoid the forms of intestate succession for all your property as described below is to have a will that explains where you want your property to go.Who inherits first in intestate succession?

Intestate succession means that when you pass away without a will, and therefore your estate will pass according to the succession method used by your state. Arizona uses per capita at each generation. This means that your assets will be split between living takers at any generational line. The remainder will be pooled and distributed to the living takers at the next generational level, and so on. So who inherits first as far as relationships go?

Your Spouse

A decedent who is married at the time of his or her death has both separate property and one half of community property that belongs to the decedent pass to the surviving spouse if the decedent does not have surviving children. The same amount passes to the surviving spouse if the decedent has surviving descendants from that same surviving spouse. This is because the law assumes the surviving spouse will provide for those children/descendants.

Your Children and Grandchildren

If the decedent was married at the time of death and had surviving descendants, one or more of whom are not descendants of the surviving spouse, then half the decedent’s separate property will pass to the surviving spouse and half of the separate property and the entire half interest in the decedent’s community property will pass to the decedent’s descendants.1 This means that if you had kids with someone other than your current spouse, your current spouse would have no interest in the community property that belonged to you.2 As you can see from this scenario, the descendants get more than the surviving spouse than if they were all children of both the decedent and surviving spouse. Adopted children, but not foster or stepchildren that you did not legally adopt, count in the intestate succession just as much as biological children do.3 A.R.S. §14-2114.

If your spouse predeceased you or you do not have a spouse at the time of death, your property will pass to your children per capita at each generation. Thus, the amount your children will receive depends on whether there are any living takers at their generational level and how many children you have that survive you. Whether or not your grandchildren inherit depends on whether or not your child predeceased you. If your child did predecease you and your child’s spouse did as well, then your grandchildren from that child will likely inherit. Lastly, any child that is conceived or born to you during your marriage and before your death is considered your child and the child will receive a share.4

To understand per capita at each generation, assume your spouse predeceased you and you had three children, Anne, Bob, and Carl. Anne has two children, Don and Emma. Bob has a child, Frank. As long as one of your children survives you, your property will be divided into three equal shares for each child.5 However, if one or two of your three children predeceases you, the estate will still be divided into three equal shares but any remainder will be pooled and distributed to the next generation. So if Bob and Anne predecease you without spouses, Carl will receive one third of your estate (i.e. there is a living taker, Carl, at your children’s generational level and there were three children so the estate is divided into thirds). The remainder of the estate (2/3 or two one third shares for Anne and Bob) would be pooled and distributed equally among your grandchildren. Therefore, Anne’s children Don and Emma, and Bob’s child Frank, would all receive the two thirds share divided by three, or 2/9ths.

Similarly, if all three of your children predecease you, then the estate would be split between the generation with a surviving taker. Thus, if your children Anne, Bob and Carl predecease you and your grandchildren survive, each would split the estate equal. Since there are three grandchildren (Don, Emma, and Frank) they would split the estate three ways, or 1/3 each.

Your Parents

If you do not have children or a spouse at the time of death, the property will pass to your parents next.6 If you only have one parent, that parent will receive everything. If both survive, then they will split the property equally.

Your Parents’ Descendants

If you do not have parents, children, or a spouse at the time of your death, then your estate will pass to your parents’ descendants per capita at each generation. This means that your siblings could inherit everything if they are the only ones that survive you. Half siblings who share only one parent with you count as “whole” relatives and will inherit as such.7 If you do not have siblings, then your property will pass to aunts and uncles (i.e. your parents’ brothers and sisters). If your parents’ brothers or sisters predeceased you as well, then your property will pass to your nieces or nephews.

The State

If you do not have any surviving relatives or heirs, then your property will “escheat” to the state. This is a very rare occurrence because there is usually someone even remotely related to you that will inherit your property.8

For more information on who inherits intestate call to speak directly with an estate planning lawyer in Phoenix Arizona at the law firm of Ariano & Reppucci.

[1] Arizona Laws of Intestate Succession, keytlaw.com, http://www.keytlaw.com/arizonawills/intestate-succession/ (last visited Jan. 14, 2015).

2 Shae Irving, Intestate Succession In Arizona, nolo.com, http://www.nolo.com/legal-encyclopedia/intestate-succession-arizona.html (last visited Jan. 14, 2015).

3 Id.

4 Id.

5 Arizona Laws of Intestate Succession, supra note 1.

6 Id.

7 Shae Irving, supra note 2.

8 Id.

 

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