My wife an I are going on a trip soon. She would like to have a will that specifies who our belongings go to in the event that we both die at the same time.
We live in Arizona, which is a community property state.
If she makes a will, and I don’t have one, and we both end up shuffling off at the same time, what happens?
No cite, but I’ve always heard that other than something catastrophic like a plane crash, they always decide that someone died first.
But having wills is always a good idea.
Generally there are laws which decide “who died first” in the event it can’t be medically determined or there might be special provisions which dictate how probate should be handled in such cases. In any case if you die without a will, your estate will be divided as the law dictates. It might be, though I don’t know, that 100% of your estate would go to your wife if you die first, then that plus her share of the belongings would be divided as her will dictates. It might be that 50% goes to her and 50% are divided among your children if any.
You also can specify as part of a will that if it cannot be determined who died first it shall be presumed that A did. You can even make this specification if the second death is within so many days. (Or at least you used to be able to do so).
There’s usually a statute that determines order of death if it cannot be determined in any other way. some statutes state that the older of the two is presumed to have died first if there is no other way.
That’s one of the reasons for both of you to have wills. You can say that I leave stuff to my wife, provided she survives me by 30 days. If she doesn’t then it goes to the kids. She puts the same clause in her will, saying she leaves stuff to you, provided you survive her by 30 days; if not, to the kids.
That type of clause works in the catastrophic accident where both are killed at the same time. Everything goes to the kids. Same if one is killed instantly and the other is injured, lingers and dies within the 30 days.
If the survivor lives for more than 30 days, it goes to the survivor.
Where it gets messy is if one or both is on life support, and issues arise about pulling the plug…
Mind, I don’t know anything about how community property laws work, and how that intersects with wills and estates.
Strongly recommend that you see a local lawyer who knows this stuff.
Most wills say something like “provided my wife survives me by X days” so there are not dueling wills. i.e. “all to my wife, provided she survives me by 7 days, otherwise split equally among my children Dan and Shirley”.
Without a will, most states have standard splits - i.e. half to wife, half to be split equally by the children.
Legalzoom says this:
And the old joke…
“He died intestate.”
“oooh! Sounds painful.”
This looks like the best summary of the situation.
Arizona has adopted the newer version of the USDA, which makes deaths within 120 hours of one another simultaneous. The point is just to avoid double administration and taxation of estates by making property pass through somebody who is also dead.
If your wife has a will, her individual property will be treated as if you predeceased her, meaning it will go to the legatees she names in her will. Anything that would have gone to you will go to the person named in the residuary clause, and if that was you (or that person was also dead) it will pass by intestacy (that is, the state legislation that says who inherits where there is no will or the will cannot be admitted to probate; generally the order is kids, grandkids, siblings, parents, grandparents.)
Your individual property will be treated as if she predeceased you, meaning it will go to whoever your heirs are under the state’s intestacy statute.
Your community property will pass the same way, but you each own an “undivided half interest” in it. That means if you have different heirs (you at law, her by will) they may end up sharing ownership of your stuff.
I can’t specifically state with certainty the laws of Arizona, but my family just went through this with my mom. Where I live, failure to have a will and having unresolved property issues means that property is divided by the laws of the State.
The problem with that is that the laws of the State impose a HUGE burden on your children at a time that they probably least need it. The Court system is a slow, ugly process. For the sake of your loved ones, get at least a simple will.
Talk to an estate attorney.
Do you have kids?
That’s pretty much the case everywhere: most if not all jurisdictions have an intestacy law.
That’s why, when someone says, “I don’t have a will,” my response is, “Sure you do. If you’ve not bothered to draft one yourself, you have a standard, government-issued will, that distributes your property automatically without taking into account any special needs of your loved ones.”
“Your choice which type to have: a personal will based on your own instructions, or the standard, government-issue will.”
No kids (just dogs).
Be sure to designate an executor for your estate. Even having a will won’t guarantee that your estate stays out of probate. Talk to your attorney about the wisdom of having your estate go into a trust. That way, it’s disposed of in quick order, without getting bogged down in the legal system.
Thanks for all the help, folks.