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Can You Contest an Estate If There’s No Will?

By Zachary Mushkatel on

Senior woman writing her last will and testament.

Losing a loved one can be an emotional and challenging experience. In addition to the grief and heartache that accompanies a loved one’s death, though, disputes may arise between family members regarding what the deceased would have wanted when it comes to a funeral and burial and distribution of assets. Often, a simple reading of the decedent’s will can resolve these issues.

What happens when no Will exists? If this is the case, family members may speculate about what the deceased would have wanted, and that confusion may lead to more disputes and hurt feelings. However, as it pertains to the distribution of property in Arizona, the law is clear: If there is no Will, then the state’s intestacy laws will apply.

At the law offices of Mushkatel, Robbins & Becker, PLLC, our estate lawyers can help you to understand intestacy laws, what happens if a loved one dies without a Will, and the probate process. Contact us today if you have lost a loved one and want to learn more about this process.

Who Is in Charge of the Estate?

If the decedent had a Will, then the person who was named as the personal representative of the estate will be responsible for managing the affairs of the estate at the time of the decedent’s death. If no Will exists, then the court will appoint a personal representative based in part on the priority for appointment established by A.R.S. § 14-3203. A person who wishes to be the personal representative of a deceased person’s estate will initiate the process by filing a petition or application which requests to serve in this role. A spouse or another surviving family member typically takes on this role.

What Is Intestate Succession?

In the event a person passes away without a will, the personal representative must divide the estate in accordance with the rules of intestate succession as set forth in A.R.S. § 14-2101 et seq. Intestacy laws in Arizona require the following:

  • If the Decedent was married at the time of his death and did not have surviving issue or descendants from a prior relationship, the entire estate will pass to the surviving spouse.
  • If the Decedent was married at the time of his death and he had surviving issue or descendants from a prior relationship, one-half of the Decedent’s separate property will pass to the surviving spouse and one-half of the Decedent’s separate property and all of the Decedent’s interest in community property will pass to the surviving issue or descendants from the prior relationship(s).
  • If the Decedent was not married at the time of his death, the entire estate will pass to the surviving issue by representation.
  • If the Decedent was not married at the time of his death and he did not have surviving issue, the entire estate will pass to the Decedent’s surviving parents.
  • If the Decedent was not married at the time of his death, he did not have surviving issue and he was not survived by his parents, the entire estate will pass to the Decedent’s surviving siblings and the surviving descendants of deceased siblings.
  • If the Decedent did not have a surviving spouse, surviving issue, surviving parents, surviving siblings or surviving nieces and nephews, the entire estate will pass to the surviving common descendants of the Decedent’s grandparents by representation.

If the Decedent has no surviving family members that descend from common grandparents (spouse, children, grandchildren, parents, siblings, nieces/nephews, aunt/uncles, cousins, etc.), then the estate will “escheat” to the State of Arizona. However, this situation is rare. Most people have at least one living relative, and the law is designed to ensure that the property is distributed to family.

What is “By Representation?”

A.R.S. § 14-2106 sets forth how an intestate estate is divided among the surviving descendants.  The estate is divided into as many equal shares as there are surviving descendants, and any deceased descendants that left surviving descendants of their own in the generation closest to the starting point.  Each surviving descendant in the closest generation receives a share. The remaining share(s) are divided in a similar manner among the deceased descendant’s surviving issue.

Example:  Decedent and his late wife had six children.  Three (3) of the children, A, B, and C, each had two (2) children of their own, Decedent’s grandchildren, and three (3) of the children, D, E, and F, did not have children.  Prior to Decedent’s death, A, B, F, and A’s eldest child died.

After Decedent’s death without a will, his estate will be first be divided into five (5) shares – one (1) share for the three (3) surviving children, C, D, and E, and two (2) shares for the deceased children that left surviving grandchildren, A and B.  The three (3) surviving children, C, D, and E, will each receive a full share. The remaining two (2) shares will be divided into three (3) shares for the three (3) surviving grandchildren.

As a result of the intestate succession, Decedent’s Estate is distributed as follows:

  • C receives 1/5 or 20%;
  • D receives 1/5 or 20%;
  • E receives 1/5 or 20%;
  • A’s surviving child receives 2/15 or 13.3333%;
  • B’s oldest child receives 2/15 or 13.3333%; and
  • B’s youngest child receives 2/15 or 13.3333%.

Providing Care to a Minor After Parents’ Deaths

Few things are more tragic than losing your parents before reaching adulthood. When this occurs, the parents’ wills will guide the Court as to who should be appointed as guardian and/or conservator.

If the will is silent to the issue of guardian, then the interested parties can petition the court for guardianship of for Phoenix Lawyer is ready to help his client determine which type of Power of Attorney she will need with regards to her Elderly Mother.the child. The Court will ultimately appoint a person who will serve the child’s best interests.

In addition to the issue of guardianship, there is also the management of the minor’s inheritance to consider. Until a child is eighteen (18) years of age, the child control or manage his or her inheritance. The property may be held in a trust, in a custodial account, or managed by the child’s conservator until the child reaches age eighteen (18).

How Our Phoenix Estate Lawyers Can Help

At Mushkatel, Robbins & Becker, PLLC, we know how heartbreaking it is to lose a loved one. We also know that the probate process can be difficult to navigate as administering a decedent’s estate can be a complicated job. We also understand that these issues can be contentious for family members who feel as though they have been left out of a will or who believe they are entitled to a share of the decedent’s estate.

When you work with our lawyers, we will calmly guide you through the process and help you to make sense of Arizona’s laws regarding probate and intestacy. Will or no will, we are here to represent you and handle all of the logistics of dividing and distributing an estate.

To learn more about probate and intestate succession laws in Arizona, please call our experienced and compassionate estate lawyers today or reach us online to request more information. We are here to serve you in Glendale, Peoria, Sun City, Surprise, and the greater Phoenix area.