The loss of a loved one is always a difficult time. Family members are also often left to deal with the estate left behind. The stress of the loss of a family member is made worse when there is uncertainty as to how to handle estate assets and other issues.
For example, what happens if someone dies intestate – without a will? Does everything go to the state? Read on to find out how the Arizona probate code deals with this situation.
If someone dies without a will, their estate assets will pass by intestate succession. Intestate succession means that any part of the estate not covered by the decedent’s will goes to the decedent’s spouse and/or other heirs under Arizona law. (The decedent is the person who died.) That is unless the decedent excluded or limited the rights of an heir through a will.
In the unlikely event that there is no one qualified to claim the estate – there is no spouse and there are no heirs, then the intestate estate will pass to the State of Arizona.
So, what is the “intestate estate”? And, who are the heirs and who gets the intestate estate assets? These can be complicated issues that depend on a series of “what if’s.”
What is the “Intestate Estate” for Arizona Inheritance?
The rules for intestate inheritance only apply to estate assets, assets that are subject to probate. Stated differently, the rules do not apply to non-probate assets or trust assets. So, before discussing “who gets what” from an intestate estate, we need to define the “what.” What assets make up the intestate estate?
A person’s estate only consists of those assets that
- are not covered by a non-probate transfer; and
- are not titled in a trust.
Non-probate assets are those, for example, that are owned as joint tenancy with right of survivorship or bank or investment accounts on which the owner already listed a beneficiary. Unbeknownst to many, in Arizona, bank accounts that are owned by two or more individuals are automatically deemed to be joint tenancy with right of survivorship (meaning that they go to the survivor upon the death of the other account holder, irrespective of terms of a will), unless the account documents specify otherwise. Learn more about non-probate assets here and about the potential problems with non-probate transfers here.
Similarly, if an asset is properly titled in the name of a valid trust, the trust will govern.
The person’s intestate estate is the estate assets (those not in a trust and that have no non-probate transfer) that are not covered by the person’s will. If there is no will, then the person is deemed to have died intestate. If there is a will that does not cover all estate assets, the person is said to have died partially intestate.
Who Inherits What?
So, now the question you’ve been waiting for, “who inherits what” of the intestate or partially intestate Arizona estate? Again, this is a series of “what ifs.” The “what ifs” involve whether the decedent left a surviving spouse and/or descendants, and whether any surviving descendants are also descendants of the surviving spouse.
Under the Arizona Probate Code, “’Descendant’ means all of the decedent’s descendants of all generations, with the relationship of parent and child at each generation.” So, the decedent’s descendants are the decedent’s children, grandchildren, great-grandchildren etc.
Now for the Arizona intestate inheritance rules:
No Surviving Spouse: If the deceased had no surviving spouse, then the entire intestate estate passes to the decedent’s heirs.
Surviving Spouse, but No Surviving Descendants or All Surviving Descendants Belong to both Decedent and Surviving Spouse: The surviving spouse gets the entire intestate estate if:
- the decedent had no descendants,
- the decedent’s descendants did not outlive the decedent, or
- the decedent’s surviving descendants all belong to both the decedent and the surviving spouse.
Surviving Spouse and Surviving Descendants, Some or All of Whom are Not Descendants of Both Decedent and Surviving Spouse: If the decedent left surviving descendants that were not also all descendants of the surviving spouse, determining who gets what property can get even a little more tricky.
It depends upon whether the intestate property was the decedent’s separate property or community property of the decedent and the surviving spouse. In Arizona, community property is generally any property or income received during marriage, except property received by gift or through someone else’s estate or trust. So, separate property is generally any property or income received before marriage or during marriage by gift or through someone else’s estate or trust.
If the decedent’s surviving descendants are not all also descendants of the surviving spouse, the decedent’s heirs are entitled to one-half of the decedent’s intestate separate property and and all of the decedent’s share of the intestate community property. (Each spouse is typically entitled to one-half of all community property.)
Who are the Decedent’s Heirs?
The decedent’s heirs are as follows:
- the decedent’s descendants by representation;
- if there is no surviving descendant, the decedent’s parents equally if both survive or to the surviving parent.
- if there is no surviving descendant or parent, to the descendants of the decedent’s parents or either of them by representation; and
- if there is no surviving spouse or descendant, parent or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents, half of the intestate estate passes to the decedent’s paternal grandparents equally if both survive or to the surviving paternal grandparent or the descendants of the decedent’s paternal grandparents or either of them if both are deceased with the descendants taking by representation. The other half passes to the decedent’s maternal relatives in the same manner. If there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent’s relatives on the other side in the same manner as the half.
“By representation” means that if the decedent had a relative at that level who died and that deceased relative left surviving descendants, the relative’s surviving descendant’s share equally the deceased relative’s share. For example, if the father had no spouse and two children, John and Sam, and Sam had two children himself, but Sam died before his father, the father’s intestate estate would be split: 50% to John and 25% each to Sam’s children. In other words, Sam’s children share equally “by representation” of Sam the portion that would have gone to Sam if he had survived his father.
A person may die partially intestate for inheritance in Arizona. That means that he or she left a will, but the will did not address all of his or her estate assets. In that case, the estate assets not covered by the will pass by the rules of intestate inheritance.
In order to avoid partial intestacy, a will should include a residuary clause. A residuary clause basically provides that everything that is leftover (the residue) and not specifically designated to go to someone will go to one or more named beneficiaries. For example, a will could provide that “I leave $100 to aunt Jean. (the specific gift) And, I leave the remainder of my estate to my brothers John and Joe in equal shares. (the residuary clause)” (This is an oversimplification for example only. If you want to write a will, you should consult with a qualified estate planning attorney. We can provide some names if you need a referral.)
Other Rules Affecting Arizona Intestate Inheritance
There are several other rules regarding “half bloods” and after-born heirs, as well as other circumstances that are covered by the statutes.
A “half blood” refers to a person who has only one parent in common with another person. Under Arizona law, half bloods inherit just the same as if they were of the whole blood. So, if the decedent left no spouse or children and the intestate estate goes to his brothers or sisters, the assets pass to those brothers and sisters even if they only have one parent in common with the decedent.
And, certain after born heirs are treated as living. Specifically, “a child in gestation at a particular time is treated as living at that time if the child lives at least one hundred twenty hours after its birth.” For example, if the father dies while the mother of his child is pregnant, so long as the child survives the the father by 120 hours, the child is deemed to have been living at the time that the decedent died and will receive a share of the decedent’s intestate estate.
Learn More About Arizona Intestate Inheritance Laws
Do you want to learn more about Arizona intestate inheritance and probate laws? Please read our article on special rules for intestate inheritance in Arizona estates or give us a call.
Do you want to learn more about probate?
Determining who receives the intestate estate may be complicated and involved. If you have any questions about Arizona intestate inheritance law or who qualifies as an heir, please contact our office. Our experienced attorneys would be happy to assist you in Arizona estate administration and property disputes. You can also read the Arizona Revised Statutes on Intestate Succession, A.R.S. §§ 14-2101 etc.