It is practically an article of faith among lawyers: every competent adult should have a will. Of course, most people never get around to signing a will; some estimates indicate that as many as 80% of decedents died without a valid will. What happens to their estates, and how much more does it cost to take care of their property and debts?

As it turns out, there’s not much difference in most cases, at least in Arizona. Taxes don’t increase, costs of probate don’t (necessarily) go up, and the time it takes to handle the estate of a person dying without a will usually is no longer. But that’s no excuse: you should still prepare and sign your will, and right now is a good time to get working on it.

When someone dies with no will, the legal system refers to them as "intestate." Every state legislature has adopted a set of rules for how to determine who receives property of an intestate decedent; those rules are referred to as "intestate succession." Most state rules, having been borrowed from the English common law, are similar. The rules of intestate succession essentially amount to a will prepared for you by your legislators.

Arizona’s rules are typical. If you are married, they assume you meant to get around to leaving everything to your spouse. If you have no spouse, the rules leave your estate to your children (with any deceased child’s share being divided among your grandchildren). If you have no spouse or children, the law tells us to look to your parents and their issue (that is, your siblings, nieces and nephews) or, if there are none of those, to your grandparents and their issue (aunts, uncles, and cousins).

There is one important exception to that logical division, at least in Arizona: if you have a surviving spouse and children who are not the children of that spouse, half of your intestate estate will go to all of your children and half to your spouse (that’s not quite accurate, but close—community property will be divided 50/50, as well). That probably isn’t what you want, but it represents a compromise between the two most likely scenarios—leaving all to your children, or leaving all to your spouse.

Your plans for distribution of your estate are probably not far off the scheme set out by the Arizona legislature. So why do you need to do a will at all? There are several reasons:

1. The legislature might have gotten it wrong. If you want to vary from the intestate succession rules, you need a will.
2. There are other things you can accomplish in your will, like choosing which of your children will act as personal representative—what we used to call executor. Importantly, you can also arrange to waive the requirement of bond for your personal representative/executor. Depending on your state laws, it may significantly increase the cost of probating your estate if you have not waived the bond in your will.
3. You might want to try to avoid probate altogether, and if you do a will is not enough. You need to talk to a lawyer about trusts and beneficiary designations.
4. When you talk to your lawyer about wills, he or she will probably also bring up powers of attorney—both financial and health care—and those may be the most important documents you end up signing.
5.  Even if you make no change from the rules of intestate succession, your will shows that you actually thought about it and intended to divide your property equally. It may help avoid arguments among your children or other family members about what you really intended to accomplish. Even though those arguments would have no legal effect (the intestate succession rules would apply), they can lead to bitter feelings among your family members.
6. A will can also provide for a "personal property list," which can make distributing your family antiques, jewelry, furniture and other personal items much easier and less stressful. Your family will appreciate knowing who you think should have grandma's emerald engagement ring.
7. Your will can also direct who should have custody of your minor children, and who should be guardian of your incapacitated spouse or adult children. Remember that a minor child's surviving parent has priority for custody, even if you were awarded full custody in a divorce proceeding, but you can specify who should be next in line, at least.
8. The simplified rules we have described here are Arizona-specific. You might die in another state, with less favorable probate procedures and higher costs. Even if you are an Arizona resident, you might own property in another state and that property might be subject to more complicated rules.

So maybe you don't need to write a will. Even if you don't, however, you should make the decision on purpose, not by inattention—and that means meet with a lawyer, discuss the options and make your choice based on all the facts.

In the meantime, take some comfort in knowing that your probate will probably not be any more complicated (unless we have a hard time figuring out whether you have a surviving spouse, or who your children might be) or expensive (unless your heirs have competing ideas about whether you actually did sign a will). Your estate will not pay any more probate costs or taxes just by virtue of the fact that you did not sign a will—though you will not have had an opportunity to take advantage of any tax-saving ideas that might exist if you do have a large estate. And in most cases the probate will not take any longer—your estate will still go through the probate process even if you do sign a will, and the length of time it takes is usually governed more by the nature of your assets than your intestacy status.

Of course, if you DO have a will and there is a contest about whether you were competent to sign it, or unduly influenced by one of your family members, that may drag the probate process out and increase the expense associated with handling your estate. Fortunately, will contests are actually quite rare, and especially so when the will has been prepared with the assistance of a lawyer of your choosing.

The bottom line: make an appointment with a lawyer, and get working on your will and estate plan. Your family will—eventually—thank you.

Would you like to subscribe to Elder Law Issues? Simply provide your e-mail address and name below, and click "Subscribe". At the same time, you may choose to also subscribe to The Voice, the newsletter of the Special Needs Alliance.

Privacy note: We do not ever use your e-mail address or name for any purpose other than to send out our subscription-based newsletter. You can rest assured that we will not sell, trade or share this information with any other person or entity. We have no ancillary or associated companies or entities to which we could provide your e-mail address, either.

© 1993-2008 Fleming & Curti, P.L.C.
330 N. Granada Avenue, Tucson, Arizona 85701
520-622-0400 /  FAX: 520-203-0240