People often ask, “what happens if I die without a Will?”  The answer can be complicated and varies based upon the situation and the value of assets left by the deceased person – but is often “not what you want.” In the event of an individual’s death without a will in Arizona, the estate will be distributed in accordance with the state’s intestacy laws. This implies that the assets will be allocated based on a predetermined hierarchy of heirs based upon state law, rather than the personal wishes of the deceased. Alleged statements by the decedent to loved ones stating “you will inherit X when I die” are meaningless if the decedent did not take action while they were alive to ensure those wishes were effective. Indeed, indeed such wishes are antithetical to the law and cannot be honored.

A comprehensive understanding of the basics of probate, including financial thresholds, the appointment of a personal representative, and the management of creditors and debts, is essential in navigating this process.

Testate Succession in Arizona

If someone dies without a valid will (testate), state laws control who inherits and who will be in charge of administering the Estate as personal representative. Oft times, the people who inherit are not who the decedent would have wanted, in particular in blended family and second marriage situations. Likewise, without a will, there may be litigation to determine who will be the personal representative.

Intestate Succession in Arizona

If someone dies with a valid will (intestate), that will controls who inherits and who is in charge of administering the Estate. When an individual dies without a will, they are considered to have died ‘intestate.’ In Arizona, the laws of intestate succession dictate the inheritance of the deceased individual’s property pursuant to Arizona Revised Statute §14-2102 and 2103. Generally, the estate will be transferred to the closest relatives, such as the surviving spouse and children. In the absence of close relatives, the estate may be passed to more distant relatives or, ultimately, to the state.  The following scenarios detail who would inherit in each intestate scenario, based upon the deceased individual’s family situation:

1. If the Decedent was married and had either no children or only had children from within the marriage

The surviving spouse is entitled to 100% of the property of the decedent.

2. If the Decedent was married and had one or more children from outside the marriage

The surviving spouse is 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. The children of the decedent would then split the remainder of decedent’s assets in equal shares.  If a child is deceased, their children (the decedent’s grandchildren) would stand in their stead and inherit.

3. If the Decedent was not married but had children or grandchildren

The children inherit 100% of the property of the decedent, divided equally among them. If a child is deceased, their children (the decedent’s grandchildren) would stand in their stead and inherit.  If all the children are deceased, and there are living grandchildren, the living grandchildren would inherit.

4. If the Decedent was not married and did not have children or grandchildren

If this scenario, the estate will work its way out the family tree in this order:

• 1. The Decedent’s parents; then
  2. The Decedent’s siblings (or their descendants if one or more are deceased).
  3. More distant relatives (e.g., grandparents, aunts/uncles, cousins).

4. If the Decedent had no living relatives

If no heirs can be found in the above scenarios, the estate will escheat (transfer) to the State of Arizona.

The Fundamentals of Probate

Probate is the legal process through which a deceased individual’s estate is administered and distributed in accordance with the will of the intestate scenarios indicated above. It ensures that the assets of the deceased are appropriately allocated and that any outstanding debts and taxes are paid. Probate can be a complex and protracted process, necessitating court involvement.

Financial Thresholds for Probate

In Arizona, not all estates are required to go through probate. Small estates may qualify for simplified procedures if they meet certain financial thresholds. As of January 2025, the thresholds are as follows:

• Real Property: Estates with real property (real estate) with equity valued at $100,000 or less in aggregate may qualify for a simplified procedure called a small estate affidavit to collect real property so long as it has been at least six months since the decedent has died. This affidavit to transfer the real estate to the heirs must be filed with the court in the county where the decedent lived.
• Personal Property: Estates with personal property valued at $75,000 or less in aggregate may qualify for a simplified probate procedure called a small estate affidavit to collect personal property so long as it has been at least 30 days since the decedent has died. This affidavit is prepared and is filed with the financial institution or custodian who possess the decedent’s property.
• Unless the Estate is valued at less than both of the above thresholds, probate will be required to transfer assets to the heirs.

Initiation of Probate

An intestate probate is initiated by the filing of an application in the Superior Court in the county where the decedent lived.  The application must contain the consent of all heirs who have priority to serve as personal representative under Arizona Revised Statute §14-3203.  If you are unable to obtain such consents, you must file a formal petition and hold a hearing before a judge.  If any interested party objects at the hearing, the case proceeds into full blown litigation to determine who will serve as personal representative

Appointment of a Personal Representative

Once a personal representative (more commonly known as an executor) is appointed after a successful application or petition, their job is to manage the probate process. The duties of the personal representative include gathering and inventorying the deceased’s assets, paying debts and taxes, giving notice to interested parties, and distributing the remaining assets to the rightful heirs.

Bond

Unless all heirs consent to waiving bond, the prospective personal representative must obtain and post a probate bond with the court that is equal to the value of all estate assets. A bond is a type of insurance policy required by the court (unless waived by all heirs) to protect the heirs and creditors of the estate.  It ensures that the personal representative fulfills their legal obligations and manages the estate assets responsibly.

Management of Creditors, Debts, and Costs of Administration

The personal representative is responsible for notifying creditors of the deceased’s death and managing any outstanding debts. This involves:

• Notifying Creditors: The personal representative must provide notice to known and unknown creditors, allowing them the opportunity to file claims against the estate.
• Payment of Debts and Taxes: Valid claims must be paid from the assets of the estate prior to any distribution to heirs. This includes settling debts and paying any owed taxes.
• Costs of Administration: The costs associated with administering the estate, such as court fees, attorney fees, and personal representative fees, must also be covered by the estate.

Once all debts, taxes, and administrative costs have been paid, the remaining assets can be distributed to the heirs in accordance with Arizona’s intestacy laws and the estate can be closed.

Disputes

Disputes are common in estates being administered without the help of a qualified attorney.  Disputes can range from questions over financial accounting, missing notices, questions over validity of expenses or debts, over distributions, or any number of other problems or miscommunications.  Disputes usually result in costly litigation that wastes funds, delays the distribution, and destroys relationships.

Conclusion

While dying without a will in Arizona results in the distribution of the estate according to state laws, a thorough understanding of the probate process and its requirements can facilitate a smoother administration of the estate. To avoid the uncertainties and potential complications of intestate succession, it is advisable to create a will with the help of a qualified estate planning attorney that clearly delineates your wishes for the distribution of your assets.  Or even better, create a trust too.