What happens to minor children if the parents die without a will?

In 1940 Arizona enacted the Uniform Simultaneous Death Act. The Act was amended and re-written effective January 1, 1995. Many other states have enacted similar legislation. The intent of this act was to provide for the distribution of the estate of both spouses in the event they died at the same time. Arizona statutes further define a simultaneous death as one where the surviving party died before 120 hours from the death of the first party.

If neither spouse survives, their joint estate passes to their descendants by representation. The term "by representation" means that each of the children who survive their parents inherit a percentage of the estate. In the unlikely event that a child dies, leaving descendants, then the child's children (grandchildren of the decedents) inherit the child's share. Unfortunately, the statutes do not get simpler, but more complicated especially with problems like after-born heirs.

Most of this complication and the problems caused can be avoided by having a will.

The real issue, with children under the age of 18, is their care and custody. Once again, a will can solve most of the problems. In the absence of a will, Arizona looks to the Uniform Guardianship and Protective Proceedings Act, enacted in 1982. A guardian for minor children can be named in a will. If there is no will the law provides that the Court shall appoint as guardian a person whose appointment would be in the best interests of the minor. Although the statutes provide for a priority for the Court's consideration, the statute is not mandatory.