Monday, July 27, 2009

What happens to my estate if I die without a will?

Large or small everyone who dies leaves an "estate." Even if the property has no value, anything owned by the decedent during life is considered part of the estate. A person who dies without a will or trust disposing of his or her estate is said to have died "intestate." Most states, Arizona included, have very specific statutory provisions which determine the disposition of the deceased's estate.

Arizona's statutes implement the Uniform Probate Code, first adopted beginning in 1969. Only sixteen states have adopted the entire Uniform Probate Code but many other states have adopted portions of the code. Arizona's statutes essentially write a simple will for everyone who dies intestate. Although the provisions of the Code are uniform, it does not mean they are simple. Some of the provisions, especially those dealing with intestate estates (without a will) are quite complicated.

Under Arizona law, if a person dies intestate his or her property goes to the "heirs" as defined by the statutes. The estate goes first, to a surviving spouse, unless there are children (called issue in the statutes) who are not children of both spouses. In the case of children who are not children of both spouses the division becomes even more complicated and will be the subject of another post. In event there is no spouse, the property goes to a person's children, if there are no children, to the parents, if there are no living parents then to siblings, the statutory scheme finally ends with any cousins. See Arizona Revised Statutes Section 14-2103. Absent the existence of any of the relatives provided for in the statute, then the property goes to the State of Arizona. See Arizona Revised Statutes Section 14-2105.

Tuesday, July 21, 2009

What is probate?

The legal process of probate dates back hundreds of years and historically has involved the proving of a will. Basically, probate involves the legal administration of the estate of a deceased person to resolve any claims against the estate and distribute the deceased person's property to his or her heirs. If a person dies with a will, their estate is described as "testate." If they die without a will, the estate is intestate.

The person who administers the estate in the U.S. has various names depending on the jurisdiction. They may be called the executor (executrix), administrator (administratrix) and more recently personal representative.

Traditionally in the U.S. the probate process was lengthy and could be very expensive. Beginning in about 1969 some of the states adopted the Uniform Probate Code. Under the Code the fee structure for attorneys in those states was revised and the cost of handling a probate case has decreased dramatically. Most cases, where there are high probate costs involve disputes between the heirs or larger estates with property in various states.

Tuesday, July 14, 2009

Avoiding Family Controversies Upon Death

There is no question that issues involving the death of a family member or close friend are unpleasant to think about. However, the controversies that can arise between family members when there is not adequate planning is even more unpleasant. I have known many people who were so fearful about the topic that they would not even discuss their affairs with anyone. But no matter how well meaning a person may be, good intentions do not resolve end of life issues.

One of the most common disputes among surviving family members revolves around a misunderstanding as to a realistic valuation of the deceased's estate. If some family members believe that the estate is far more valuable than is actually the case, there is a almost a guarantee that there will be a conflict. In one case I handled recently, the childen believed the deceased to be very wealthy. The facts were otherwise. The Personal Representative of the estate was required to obtain a $1,000,000 bond, but it turned out that the entire estate was less than $10,000.

How could someone get such an inaccurate impression of the valuation of their relative's estate? This usually occurs because of a lack of information. Commonly, houses in joint tenancy are held with a right of survivorship and pass to the joint tenant outside of the estate. Likewise, bank accounts and insurance policies can be set up with a named beneficiary and they also pass outside the probate estate. When all of the jointly held property is taken into a account, a person may have been relatively wealthy during his or her lifetime, but have almost nothing to pass to a potential heir.

Another simple expediency is to identify to your heirs the location and identification of all of your property that might be passed to them through your estate. Too many people have been conditioned by TV shows like Antiques Roadshow to believe that any old item owned by an estate my have an extraordinary value. Sometimes the personal property of the deceased costs more to haul away than it is worth. If your estate could have physical items of potentially high value, then make sure your heirs know about the property and its value. I hear too many stories of valuable antiques or heirlooms being thrown out due to ignorance on the part of the heirs.

Ultimately, the best way to avoid family conflicts after the death of a family member is a good, current, will, a good trust and proper Powers of Attorney and Living Wills.