Arizona law provides a “default will” for those people that die without a will that meets Arizona's statutory requirements. The statutes, ARS § 14-2101, et seq, which set forth the “default will” are often called intestacy statutes.
If there is a surviving spouse, ARS § 14-2102 provides:
The following part of the intestate estate, as to both separate property and the one-half of community property that belongs to the decedent, passes to the surviving spouse:
- If there is no surviving issue or if there are surviving issue all of whom are issue of the surviving spouse also, the entire intestate estate.
- If there are surviving issue one or more of whom are not issue of the surviving spouse, one-half of the intestate separate property and no interest in the one-half of the community property that belonged to the decedent.
So, what does this mean? In general, it means that if the children of the person who died — called the decedent — are also children of the decedent’s spouse, then the decedent’s entire probate estate goes to the decedent’s spouse. If, however, the decedent had issue — biological or adopted children — who are not issue of the decedent’s surviving spouse, then the surviving spouse is only entitled to one-half of the intestate separate property and no interest in the one-half of the community property that belonged to the decedent.
Please note that a decedent’s probate estate often does not include assets and property that are governed by federal law and have beneficiary designations, such as IRAs.
If there is no surviving spouse, ARS § 14-2103 provides:
Any part of the intestate estate not passing to the decedent's surviving spouse under section 14-2102 or the entire intestate estate if there is no surviving spouse passes in the following order to the following persons who survive the decedent:
- To the decedent's descendants by representation.
- If there is no surviving descendant, to 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.
- If there is no surviving descendant, parent or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents, half of the 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.
So, what does this mean? In general, it means that if the decedent was unmarried or the decedent’s spouse predeceased the decedent and all of the decedent’s biological or legally adopted children are living, then the entirety of the decedent’s estate goes to those children. If, however, any of the decedent’s children predeceased the decedent but have children who are still living, the deceased child’s share of the decedent’s probate estate will be divided among the deceased children’s biological or legally adopted children.
If the decedent, however, had no living descendants, the decedent’s probate estate goes to the decedent’s parent’s — if still living — but if they are not living, then to the decedent’s siblings — if still living — but if the decedent’s parents had no living children, then the decedent’s probate estate would go to the decedent’s grandparents — if living — but if there are no living grandparent’s then to the descendant’s of the decedent’s grandparents.
Regardless of whether there is a will, however, the estate will generally need to be probated.
When a person in Arizona dies and, inter alia, the estate is in excess of an amount set forth in ARS § 14-3971, the estate must go through a judicially monitored process called probate in order to distribute the assets of the decedent. In Arizona there are three different types of probate proceedings and which type of proceeding is required will depend upon, inter alia, the age and/or competency of the heirs.
This brief overview of some important considerations associated with intestacy in Arizona is by no means comprehensive. Always seek the advice of a competent professional when making important financial and legal decisions.