Here are two very simple points often overlooked or misconstrued by clients and their intended beneficiaries:

First, the provisions in a person’s will do not necessarily govern the disposition of all property the person owns.  For example, Uncle Tom has one nephew and two nieces, and let’s assume he has three principal assets to his name:  (1) a $1,000,000 life insurance policy payable to his nephew; (2) a payable-on-death account of $500,000 with one niece; and (3) an IRA in the amount of $50,000 naming a second niece as beneficiary.  Uncle Tom also has a will dividing all property equally among his nephew and nieces.  Unfortunately for Uncle Tom and one niece, upon his death no property passes through his will as all assets are payable by specific contract, and his testamentary intent may be thwarted.  Therefore, how assets are titled governs whether they pass by will.

Second, where a person names his or her spouse as beneficiary under life insurance policies and IRAs and also as a beneficiary under the will and the parties subsequently divorce, Arizona law (by statute) presumes the person dying would not want his or her former spouse inheriting any property.  The legislative solution is to strike the former spouse as a beneficiary, unless specifically reinstated after the divorce or specific provisions in a property settlement agreement apply or other extenuating circumstances exist.  We still see scenarios where the decedent did intend to benefit the former spouse, but failed to take appropriate steps after the divorce to accomplish that aim.
Michael W. Margrave
mmargrave@mclawfirm.com
480-994-2000

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