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 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, on the other hand, does not become real until the testator's death. The intended recipient has no enforceable property right while the testator is alive.
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, providing certainty that a will simply cannot match during the grantor's lifetime.
