The Transfer of Property
After someone has passed away, all of their assets are distributed either automatically or through the probate process. If the deceased has set up his or her assets to transfer automatically to designated heirs, then probate is not necessary. For example, if the deceased has a life insurance policy with a named beneficiary this asset will transfer automatically to the named heir. Trust property and retirement accounts also often have named beneficiaries and these assets have an automatic transfer and need not be part of probate. Any assets without automatic transfer are legally required to go through the probate process to complete the legal passing of title and determine who the proper heirs are.
Controlling the Distribution of Probate Assets
A person's legal will directs the distribution of probate properly. If there is no will or perhaps the deceased assets are not completely accounted for in the will, the state has statutory intestate succession rules that will control the allocation of assets. In Arizona, the laws state that the deceased's estate will be directed to the "heirs at law." These heirs are those deemed as heirs on the actual date of the decedent's passing. The heirs also are subject to a survival requirement. The surviving spouse and children are first in line to inherit the estate; this includes both biological and adopted children. If the spouse also is deceased, Arizona law states that the shares of the estate will be divided equally among the children. If any or all of the children also are deceased, the assets will be divided among the next generational level and so on. If the deceased has no living relatives and no will, then the assets will go to the state.
Exceptions That Can Override The Direction Of A Will
The distribution of a will and the state's rules of succession can be overridden in certain circumstances. For example, a spouse might sign a waiver or a legal agreement giving up rights to inheritance that generally would be given under Arizona state law. Also, if the will was constructed prior to a marriage, then Arizona law has an entitlement that provides a share equal to what would be distributed had the deceased died without a will or trust. Children, who are omitted in the will, also can be included in the distribution although with some exceptions. Other Arizona laws provide for a $12,000 family allowance for a surviving spouse and children, an $18,000 homestead allowance and $7,000 of exempt property. However, these rights can be lost in the case of a divorce or in event that the heir murdered the decedent. In addition, an heir can volunteer to be excluded from the estate.
Distribution of Property Not Clearly Directed by Terms of Will:
Sometimes, not all property is devised under a will or not all devises can be fulfilled. When this happens, Arizona probate law provides default rule for how such property is to be handled. Occasionally, specific property is devised to a particular person, but that heir or devisee cannot be found. When this happens, their share is to be held either in a conservatorship or a state fund, to be claimed by that person when they when are located. If property listed in a will has been sold or lost prior to the death, then there are statutory provisions to address these issues. In addition, a will also can be made with directives to cover issues such as sold or lost property and assets.
The Priority Of Estate Distribution
Before property can be distributed, any debts against the estate must be settled. The heirs or devisees cannot collect the estate until creditors have been paid. If after, the payment of debts there are not enough assets to distribute to each devisee, then the assets will be directed in a certain order. This order will be dictated by the will, but if there is no will then Arizona code applies. The order of devisees is as follows: the first is the residuary devisee, then general devisees then specific devisees. Default rules also control which property will be used to fulfill each debt.
The Final Distribution Of The Probate
After all the creditors have been paid and all charges against the estate have been known and settled, then the personal representative will send out a notice of the distribution to all interested parties. This gives them a chance to object to any distributions of assets. If there are no challenges, then the final distributions begin and after all the estate has been distributed, then the estate will be closed.
After someone has passed away, all of their assets are distributed either automatically or through the probate process. If the deceased has set up his or her assets to transfer automatically to designated heirs, then probate is not necessary. For example, if the deceased has a life insurance policy with a named beneficiary this asset will transfer automatically to the named heir. Trust property and retirement accounts also often have named beneficiaries and these assets have an automatic transfer and need not be part of probate. Any assets without automatic transfer are legally required to go through the probate process to complete the legal passing of title and determine who the proper heirs are.
Controlling the Distribution of Probate Assets
A person's legal will directs the distribution of probate properly. If there is no will or perhaps the deceased assets are not completely accounted for in the will, the state has statutory intestate succession rules that will control the allocation of assets. In Arizona, the laws state that the deceased's estate will be directed to the "heirs at law." These heirs are those deemed as heirs on the actual date of the decedent's passing. The heirs also are subject to a survival requirement. The surviving spouse and children are first in line to inherit the estate; this includes both biological and adopted children. If the spouse also is deceased, Arizona law states that the shares of the estate will be divided equally among the children. If any or all of the children also are deceased, the assets will be divided among the next generational level and so on. If the deceased has no living relatives and no will, then the assets will go to the state.
Exceptions That Can Override The Direction Of A Will
The distribution of a will and the state's rules of succession can be overridden in certain circumstances. For example, a spouse might sign a waiver or a legal agreement giving up rights to inheritance that generally would be given under Arizona state law. Also, if the will was constructed prior to a marriage, then Arizona law has an entitlement that provides a share equal to what would be distributed had the deceased died without a will or trust. Children, who are omitted in the will, also can be included in the distribution although with some exceptions. Other Arizona laws provide for a $12,000 family allowance for a surviving spouse and children, an $18,000 homestead allowance and $7,000 of exempt property. However, these rights can be lost in the case of a divorce or in event that the heir murdered the decedent. In addition, an heir can volunteer to be excluded from the estate.
Distribution of Property Not Clearly Directed by Terms of Will:
Sometimes, not all property is devised under a will or not all devises can be fulfilled. When this happens, Arizona probate law provides default rule for how such property is to be handled. Occasionally, specific property is devised to a particular person, but that heir or devisee cannot be found. When this happens, their share is to be held either in a conservatorship or a state fund, to be claimed by that person when they when are located. If property listed in a will has been sold or lost prior to the death, then there are statutory provisions to address these issues. In addition, a will also can be made with directives to cover issues such as sold or lost property and assets.
The Priority Of Estate Distribution
Before property can be distributed, any debts against the estate must be settled. The heirs or devisees cannot collect the estate until creditors have been paid. If after, the payment of debts there are not enough assets to distribute to each devisee, then the assets will be directed in a certain order. This order will be dictated by the will, but if there is no will then Arizona code applies. The order of devisees is as follows: the first is the residuary devisee, then general devisees then specific devisees. Default rules also control which property will be used to fulfill each debt.
The Final Distribution Of The Probate
After all the creditors have been paid and all charges against the estate have been known and settled, then the personal representative will send out a notice of the distribution to all interested parties. This gives them a chance to object to any distributions of assets. If there are no challenges, then the final distributions begin and after all the estate has been distributed, then the estate will be closed.
About the Author:
Emely Peight likes writing about legal issues. For more information regarding Mesa paralegal service, or if you require a Mesa AZ paralegal, please check out these sites now.
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