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Arizona Intestate Inheritance Law


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Elderly in ArizonaThe loss of a loved one is a difficult time for a family. Family members are also often left to deal with the estate left behind. The stress of the loss of a family member is often made worse when there is uncertainty as to how to handle estate assets and other issues. For example, what happens if someone dies without a will? Does everything go to the state?  Read on to find out how the Arizona probate code deals with this situation.

Intestate Succession

If someone dies without a will, their assets will pass by intestate succession. Intestate succession means that any part of the estate not covered by the decedent’s will, by Arizona statute, will pass to the decedent’s spouse and/or other heirs. (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 entirely to the state.

So, who are the heirs and who gets the assets not addressed by the person’s will?

Who Gets What?

If the deceased had no surviving spouse, then the entire intestate estate passes to the decedent’s heirs. If the decedent had a surviving spouse, but had no children, the decedent’s children did not outlive the decedent or the surviving children belong to both the deceased and the surviving spouse, the entire intestate estate goes to the surviving spouse. If the deceased spouse left surviving children that were not also children of the surviving spouse, determining who gets what property can get a little tricky because it depends upon whether the intestate property was separate or community property.

Mesa, AZ Probate DisputeCommunity 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 surviving children are only children of the decedent and not of the surviving spouse, then the children are entitled to one-half of the decedent’s intestate separate and and all of the deceased’s share of the community property.  (Each spouse is typically entitled to one-half of all community property.) If there is no surviving spouse or that spouse does not get the entire estate, then the intestate estate (or parts thereof) passes to the descendants of the decedent.

If the decedent left no children or grandchildren etc. (descendants) then who are the decedent’s heirs entitled to the intestate estate? First, the intestate estate would go to the decedent’s parents, if one or both survived the decedent. Second, if the decedent’s parents did not survive, then to the descendants of the decedent’s parents – the decedent’s brothers/sisters, or if they didn’t survive, then it would go to the decedent’s nieces and nephews. The list of heirs goes on (to the decedent’s grandparents and descendants of the grandparents) until a surviving heir is found. However, in the case that there are no surviving heirs, the intestate estate passes to the state.

Partial Intestacy

A person may die partially intestate. That means that he or she left a will, but the will did not address all of his or her assets. In that case, the 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 a gross 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

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.
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 in gestation, so long as the child survives the decedent 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.

What Assets are Included in the Estate?

The rules for intestate inheritance only apply to probate or estate assets.  Stated differently, the rules do not apply to non-probate assets.  Non-probate assets are those, for example, that are already held in a trust, assets 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), unless the account documents specify otherwise.  Learn more about non-probate assets here and about the potential problems with non-probate transfers here.

Learn More

Do you want to learn more about Arizona intestate probate laws?  Please read our article on special rules for intestate Arizona estates.

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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.