Why the Creation Date Matters
The exact moment a future interest comes into existence is not just an academic question. It determines when legal protections begin, when the interest becomes transferable, and how it interacts with other rules governing real property and personal property rights. Arizona law makes this timing straightforward.
The time of creation of an estate in expectancy is the time of: 1. Delivery of the grant if the estate in expectancy is created by grant. 2. Death of the testator if the estate in expectancy is created by devise.
A.R.S. § 33-223For property transferred by deed, the future interest exists the moment the deed is delivered. For property transferred through a will, the future interest does not exist until the person who wrote the will passes away. Until that point, a will can be changed, revoked, or replaced entirely.
Practical Implications for Estate Planning
This distinction has real consequences. A future interest created by deed is immediately a legal reality. The holder can sell it, bequeath it, or use it as collateral. A future interest created by will does not become real until the testator's death. The intended recipient has no enforceable property right while the testator is alive.
The creation date also affects how the interest interacts with other transfers. For example, if property is held by joint tenants, a future interest created by one tenant's deed may be affected by survivorship rules. A governing instrument like a trust may also set specific conditions for when possession or enjoyment begins.
Understanding the timing is also important for community property purposes. If a future interest is created during a marriage, its classification as community or separate property depends in part on when and how it was created. A power of appointment granted in a trust may create a future interest at a different time than the trust itself.
This is one reason many families use deeds and trusts for property transfers rather than relying solely on wills. A deed-based transfer locks in the future interest now. It provides certainty that a will simply cannot match during the grantor's lifetime. Intestate succession only applies when no valid governing instrument exists.