Procrastination is the enemy of any good estate plan and probate without a will is the reality for many in Arizona because of it. The law in Arizona makes provisions for a “default will” for those people who die without one. These laws are found at ARS § 14-2101, et seq., and are commonly referred to as intestacy statutes.
These intestacy statutes dictate who will inherit the probate assets of a deceased person in a variety of circumstances. For example, in cases where the decedent did not have any children that are not also the children of a surviving spouse, ownership of all the deceased person’s property passes to the surviving spouse. In cases where the decedent DID have children who were not also the children of the surviving spouse at time of death, then that spouse is entitled to one-half of the deceased person’s separate property and none of the one-half share of community property that belonged to the decedent.
To help spell this out a little more clearly, the following scenarios explain what would happen to the deceased person’s property is he/she died without a will:
- When the person who died is survived by a spouse and children from the marriage, the survivor spouse will inherit all the deceased spouse’s assets.
- When the person who died is survived by a spouse and the children are not the children of the surviving spouse the surviving spouse is entitled to one-half of the deceased spouse’s separate property and none of the deceased spouse’s share of community property.
- When the person who died is survived by a spouse and no descendants, parents, or siblings the surviving spouse will inherit the deceased spouse’s entire estate.
- When the person who died is survived by descendants and no spouse, the descendants will inherit the entire probate estate.
- When the person who died is survived by a parent or parents and no spouse or descendants, the parents will inherit the entire estate in equal shares or the surviving parent will inherit the entire estate.
- When the person is survived by a sibling or siblings and no parents, spouse or descendants, the siblings will inherit the entire estate.
Disposition of some assets are not governed by wills or the intestacy statutes. These assets are often referred to as non-probate assets, and include those for which title automatically transfers to another person by operation of law or by beneficiary designation. Some examples of non-probate assets are life insurance policies with one or more named beneficiaries, retirement or financial accounts with one or more named payable upon death (POD) beneficiaries, and joint accounts with rights of survivorship. The disposition of these types of assets are governed by the terms of the contract or instrument under which they were created, and are not subject to the disposition of one’s probate estate pursuant to a will.
Another unintended potential problem that can arise when someone dies without a will is that their assets could end up in the hands of a family member that the deceased person would never have wanted to receive ANYTHING. Arizona law allows anyone to exclude or limit the rights of any person through a will. However, when no will exists, the intestacy laws control. If you want to be in control of what happens with your probate estate, prepare a will!
Transfer of Title to Small Estates by Affidavit
There are many different probate scenarios, but for smaller, less complicated estates, a beneficiary can take advantage of one of the probate shortcuts known as the small estate affidavit.
A beneficiary may use a Small Estate Affidavit for personal property (things other than real estate) if the following criteria are met:
- If the value of personal property in the estate is less than $75,000
- If it has been at least thirty (30) days since death
- If the estate is not being administered through a probate proceeding
A beneficiary may use a Small Claim Affidavit for Real Estate if the following criteria are met:
- Where the total value of the estate’s real estate is less than $100,000
- When you have waited at least six (6) months after the death
- When no personal representative has been appointed by the court
- When all unsecured debts are paid, AND
- When no estate tax is due
Navigating these statutes can be confusing for the novice trying to figure everything out after a loved one has passed. An experienced probate attorney can be invaluable in sorting out all the various rules and distinctions, and represent you and provide guidance through an emotional and trying time.