When a loved one passes away without a will, those left behind often find themselves trying to wrap up a variety of loose ends, from cleaning out the garage to selling the family home. In addition to those types of logistics, survivors also encounter the challenges of navigating the legal element of handling their loved one’s estate through probate.
Jump ahead to these sections:
- Arizona’s Intestacy Laws Explained
- How Does Probate Work in Arizona If There Is No Will?
- Who Typically Inherits Assets in Arizona If There Isn’t a Will?
- Frequently Asked Questions: Dying Without a Will in Arizona
Regardless of whether someone dies with or without a will, loved ones are tasked with effecting property transfers, paying final bills, and disposing of personal belongings. The difference lies in where the guidance comes from, and for estates without wills, a person’s state of residency dictates the intestacy laws. For those who live in the Grand Canyon State, here’s what you need to know.
Arizona’s Intestacy Laws Explained
Arizona’s intestacy laws provide the framework for passing along someone’s assets when they die without a will.
The items left behind without a surviving co-owner or beneficiary comprise your probate estate when you pass away. When there is a will, the will tells those left behind how to divide and allocate all the belongings, from little knick-knacks to houses and cars.
Alternatively, when someone dies without a will, the state’s intestacy laws fill in that guidance to determine the new owner. A will can be highly detailed and particular, gifting items to many beneficiaries and divvying them up any way the decedent chooses.
The laws of intestacy are meant to be broad and one-size-fits all. They distribute the assets equally among each member of a generation, regardless of an individual’s relationship with the decedent. For example, all of a decedent’s siblings could inherit equally, even if one was estranged or the decedent disliked another.
How Does Probate Work in Arizona If There Is No Will?
To finalize the estate of someone who died without a will in Arizona, the survivors can choose from three different avenues – formal probate, informal probate, and small estate administration.
Small estate administration
Arizona allows for a straightforward small estate administration process for estates that fall under certain value thresholds. Personal property must not exceed $75,000. The small estate process can also address real estate, as long as it meets the following:
- Its value is less than $100,000
- All funeral expenses and unsecured debts have been paid
- No federal estate taxes are due
Under the small estate process, families can avoid the probate court entirely. Instead, they submit the notarized affidavit to the custodians of the decedent’s assets. For example, you can take the affidavit to the bank to collect an account or safe deposit box.
Estates that exceed the small estate limits usually fall into informal probate. When it is available, most people prefer informal probate because there is minimal contact with the probate court, and the court does not oversee the personal representative’s every act. Of course, the personal representative remains answerable to the court and must abide by the probate rules, but the court only plays an active role if needed to solve a controversy.
Most estates in Arizona tend to fall into the informal probate category.
Whereas the court takes a hands-off approach to informal probate, formal probate comes with more hearings and orders from the court. The need for formal probate arises when there is conflict surrounding the choice of a personal representative, the identification of heirs, or when a sensitive asset requires additional court orders.
Although formal probate involves increased contact with the court, formal administration differs from supervised probate. Supervised probate requires that the court oversee and approve all aspects of the estate, from approving attorneys and taking statements of creditors to authorizing individual transactions for the sale or disbursement of property.
Arizona is one of a handful of community property states in the United States. While most often community property is discussed in relation to the division of property during a divorce, it also affects the inheritance of the surviving spouse and other heirs.
In a community property state like Arizona, property owned by either spouse during the marriage is considered the joint property of both spouses. Community property assets are considered to be held equally, so when one spouse dies, the property is figuratively divided in half. The surviving spouse keeps their half, and then the deceased spouse’s half passes by will or intestacy to heirs.
Property acquired prior to marriage is separate property, and the intestacy laws distinguish between the inheritance of separate and community property.
Just like in non-community property states, Arizonans can establish end-of-life transfers that remove portions of their assets from the probate estate. One option is to title community property real estate with the right of survivorship, also known as tenancy in the entirety. Then, when one spouse dies, the other spouse becomes the 100 percent owner.
Other non-probate transfers include payable-on-death beneficiary designations, like what you find on bank accounts, retirement and investment accounts, and life insurance policies. Arizona also recognizes beneficiary deeds, which transfer real estate upon the death of the current owner.
The role of the personal representative
You ask the court to appoint a personal representative for the estate by opening a case with the probate court. The personal representative can be an heir, like a spouse or adult child, a professional fiduciary, or even a creditor of the estate.
Regardless of the personal representative’s connection to the estate, they take on the responsibility of executing the estate according to the state probate laws. Those laws address the order that creditors should be paid and how to divide the assets among any heirs.
The personal representative remains responsible to the heirs and court and may be expected to produce an accounting and inventory of the estate to establish a paper trail and document the estate’s transactions.
Some families find themselves in a power struggle over who becomes the personal representative. However, keep in mind that the personal representative position comes with a lot of work, and while they may charge a fee for their time and effort, it doesn’t entitle them to a larger inheritance.
How to file for probate in Arizona if there is no will
Arizona makes many of its probate forms available for free online, so parties without attorneys can print, fill out, and file the forms on their own. Many Arizona courts have Self-Service Centers to provide information and forms. Check with your local court to determine the forms and resources available. For example, the Maricopa County Law Library Resource Center provides extensive forms and training for people filing probate.
Who Typically Inherits Assets in Arizona If There Isn’t a Will?
In Arizona, the person or people who inherit when there is no will depends on the decedent’s family structure or next of kin. A surviving spouse and descendants tend to have priority, and are the most likely to inherit assets if there isn’t a will.
The surviving spouse inherits the entire estate when the decedent dies if the decedent had no descendants or if any descendants are also the descendants of the surviving spouse.
When the decedent has a surviving spouse and descendants who are not also descendants of that spouse, the surviving spouse only inherits half of the decedent’s separate property. The descendants inherit the other half of the separate property plus the decedent’s half of the community property.
When the decedent leaves no spouse or descendants, the decedent’s parents inherit. If the parents predeceased the decedent, then any siblings that the decedent had could inherit.
Frequently Asked Questions: Dying Without a Will in Arizona
Let’s tackle some of the most common questions around dying without a will in Arizona. Keep in mind that many families have unique circumstances that change how the intestacy rules are applied. If that’s the case for you, consider consulting an estate attorney for a customized opinion of the intestacy laws as they apply to your family.
Does property ever go to the state?
The ideas of probate and the state taking property can be synonymous, but property rarely goes to the state. Property only “escheats” (or is given) to the state of Arizona when a decedent lacks any heirs. Given that the laws of intestacy reach up and down a person’s family tree indefinitely, it’s very rare that nobody can be found.
More often, the administrator of the estate can identify an heir but not locate or contact them. In those situations, the state holds the property for the heir rather than taking it for the state itself. Arizona, like all other states, holds property in its unclaimed property fund for this purpose.
What happens when your parent dies without a will?
A child’s rights of inheritance vary greatly depending on whether their parent left a surviving spouse and whether that surviving spouse is also the children’s parent.
Children inherit the entire intestate estate if their parent was unmarried at the time of their death. On the other end of the spectrum, children inherit nothing if their parents were married to each other at the time of one parent’s death.
Blended families fall in the middle of those two extremes as the decedent’s descendants and the surviving spouse can split the estate. In families where the decedent had children with someone other than the surviving spouse, the descendants inherit half of the decedent’s community property and half of the decedent’s separate property.
What are a surviving spouse’s rights if there’s no will?
The surviving spouse can inherit the decedent’s entire intestate estate when the decedent had no descendants or if their descendants are also the descendants of the spouse – e.g., their children together.
The surviving spouse only inherits half of the community property and half of the separate property if the decedent had descendants with someone other than the surviving spouse. The descendants inherit the remainder.
What happens to bank accounts when someone dies without a will?
After someone passes away, consider letting the bank know immediately, especially if you have any concerns that someone else may have access to a debit card on the account.
From there, the account’s beneficiary should be able to collect the balance if the decedent designated a payable-on-death beneficiary. The bank might require a copy of the death certificate and the heir’s identification.
When the account lacks a beneficiary, heirs can try to collect via the small estate affidavit if applicable, and then, if unsuccessful, pursue probate through the courts. The probate court issues letters of administration, and those letters represent the personal representative’s authority to manage the account.
Who is considered next of kin in Arizona?
Next of kin depends on the decedent’s family structure. If married at the time of their death, the surviving spouse has priority. When there’s no surviving spouse, the probate court first goes down the decedent’s family tree to look for living children, grandchildren, or great-grandchildren. All members of a generation have the same priority.
In situations where the decedent had no descendants, you may want to look up the family tree for parents, siblings, and then grandparents.
Does Arizona collect estate taxes?
Arizona does not collect estate taxes, but estates in Arizona are still subject to federal estate taxes.
Plan Ahead to Avoid Dying Without a Will in Arizona
Many people assume that their spouse will inherit everything and that they don’t need a will. While the laws of intestacy try to address the majority of family situations, they frequently differ from what the decedent would have wanted.
Try to encourage relatives to make a will or to engage in other types of estate planning, especially if you suspect they would be disappointed by the results of the intestacy laws.