When a beneficiary to a will passes away after probate is opened but before the assets are distributed, the status of their inheritance will depend on the terms of the testator’s will and the state’s succession laws. In the state of Arizona, succession laws are based on the Uniform Probate Code (UPC) and Arizona Revised Statutes Title 14 (ARS 14).

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My Dad died January 2021 in Arizona and I, as executor living in Oregon, needed to settle his estate but had no knowledge of what to do. His trust officer said I would need an Arizona law firm and suggested Ryan Hodges of JacksonWhite along with several other firms. A message left on their website was answered by a phone call next day from Ryan. He emailed a "to do list" of the steps necessary and information I needed to provide. Dad’s estate was straight forward and there were no squabbles with my brother and sister as I distributed his financial assets. When necessary Ryan communicated directly with the trust officer. By July, after several more "to do lists" all was settled and within the basic fee originally quoted. After the initial phone call all communications were by email with clear, logical, step by step instructions and prompt replies. I am very pleased with the services of Mr. Hodges and recommend him.John Womackread more
John W.
15:56 29 Nov 21
Ryan Hodges was extremely helpful and friendly from start to end of the probate process. He provided contact for a realtor to help me sell my fathers home and closely advised me in working with a CPA, all while I reside in CA when the law firm is based in AZ. Even though the pandemic slowed the process Ryan kept in close contact and was readily available any time I had questions or concerns. I highly recommend Ryan Hodges and the entire Jackson & White law firm.read more
Mitch H.
06:33 01 Nov 21
I dealt with Ryan Hodges in the probate department. I have never had to deal with Wills or probate accounts before. Therefore, I had a lot of questions and was confused with what to do. And Ryan made the process run smoothly. He was a pleasure to deal with, responded right away and answered all of my questions & concerns that I had. I will be calling them to set up my own Will. I would recommend using Jackson White.read more
Kari W.
18:18 26 Oct 21
Ryan Hodges provided exactly the advice my father and I needed, on our timeline, and he did so efficiently and with a friendly demeanor. Every time we reached out, he was extremely prompt with his responses – not only did he have the knowledge immediately at hand to answer our questions, but he also got back to us more quickly than we had any reason to expect. He also asked appropriate questions and met us where we were in terms of understanding (or not understanding) the law. And he is a clear, definitive communicator over email. We will definitely use him again for any estate or probate-related needs.read more
Heather Z.
19:18 03 Aug 21
I hired Jackson White in 2015 after my mom needed services to protect her estate. Their name was given to me by a gentlemen who placed seniors in care facilities. I was introduced to Ms. Court and was extremely pleased talking with her and having the firm represent me for my mom. Through the years I had further conversations with two attorneys, Ryan Hodges and Colton Johnston who was helpful in answering any questions I may have had concerting the trust. I can say the attorneys I have encountered in this probate were extremely caring and helpful and kept me informed every step of the way inasmuch as this was the first time I experienced their expertise. I would recommend the firm the their attorneys for their kindness and expertise. They were always quick to answer my questions and we did this from afar. I live in San Diego and they in Mesa, AZ. The matter is now closed my mom having passed away in March 2021 but I feel very comfortable knowing that I was treated kindly and professionally.read more
Linda R.
19:23 04 Jul 21

 

Does the will specifically name a beneficiary?

If the testator names a beneficiary and specifically bequeaths assets to them in the will (e.g. “the house goes to my son, John Doe”), then the bequeathed assets will become part of the beneficiary’s estate.

In this example, John Doe’s estate would receive the house, and the house would then pass to John Doe’s beneficiaries according to his will. If there isn’t a will then the estate is considered “intestate,” and the house would transfer to John Doe’s legal heirs according to the state’s intestacy laws.

This practice applies if there are multiple beneficiaries, too. If the will states that the house goes “to John Doe and Jane Doe”, then both parties would have a 50% share of the inheritance. Their 50% share would transfer to their respective estates if they pass away before the inheritance is distributed.

The notable exception to this rule would be when a testator stipulates in their will that the beneficiary must be alive to receive their inheritance (e.g. “the house goes to my son, John Doe, if he is living”). In this case, the beneficiary’s estate would not be entitled to the inheritance. Instead, the inheritance would pass to the contingent beneficiary listed in the will.

In the absence of a contingent beneficiary, the inheritance would be subject to the state’s intestacy laws and would pass to the decedent’s legal heirs.

Does the will bequeath assets to a group?

While it’s usually best to explicitly name beneficiaries in your will, it’s common practice to bequeath assets (or the entire estate) to a group of people. Common examples include parents who leave the entire estate “to my children” or an uncle who leaves specific assets “to my nieces and nephews.”

These are known as class gifts. Generally speaking, class gifts require the implied beneficiaries to be alive in order to receive their inheritance. If one of the beneficiaries dies during probate, then his or her share of the inheritance would be reallocated to the surviving beneficiaries.

Is There a Survivorship Period?

In the state of Arizona, beneficiaries to a will must survive the testator by at least 120 hours (5 days) to receive their inheritance (ARS 14-2104). This is known as the survivorship period.

A testator has the right to impose a longer survivorship period in their will, usually anywhere from a week to several months. If a beneficiary passes away after the testator but during the survivorship period, the beneficiary statutorily predeceases the testator and stands to lose their inheritance.

What Happens when a Beneficiary Predeceases the Testator?

When a beneficiary listed in a will dies during the testator’s lifetime, it’s pretty easy to amend the will and replace the deceased beneficiary. That’s obviously not an option when a beneficiary passes away after the testator, and it can be problematic when the beneficiary statutorily predeceases the testator by dying during the survivorship period.

Rather than leaving cases like this to the mercy of intestacy laws that may not necessarily honor the wishes of the decedent, Arizona has adopted anti-lapse laws that allow the children of beneficiaries to claim the inheritance. Under the state’s anti-lapse laws, a child of the deceased beneficiary can claim their parent’s share of the testator’s inheritance if one of the following conditions are met:

  • The predeceasing beneficiary is the testator’s grandparent
  • The predeceasing beneficiary is a descendent of the testator’s grandparent
  • The predeceasing beneficiary is the testator’s stepchild

The intent of anti-lapse laws is to ensure that the testator’s assets end up where he or she would prefer. The assumption is that if the testator wanted a particular family member to receive an inheritance, it stands to reason that they’d want the intended beneficiary’s child to receive the inheritance in their place.

While this may not always be the case, it’s usually better than leaving assets to impartial intestate succession laws that may gift assets to family members who are legal heirs but whom the decedent didn’t get along with.

What Happens with Intestate Succession?

The ultimate fallback in probate is always intestate succession. If the will doesn’t offer clear direction, if the conditions for the anti-lapse remedy aren’t met, or if there isn’t a will at all, the assets in question will transfer to the decedent’s (not the beneficiary’s) legal heirs in the following priority:

  1. To the surviving spouse and any children from another partner (ARS 14-2102)
  2. Absent a surviving spouse, to the decedent’s children (ARS 14-2103)
  3. Absent a surviving spouse and children, to the decedent’s parents
  4. Absent a surviving spouse, children, and parents, to the decedent’s siblings (with representation)
  5. Absent a surviving spouse, children, parents, siblings, and nieces or nephews, to the decedent’s grandparents (with representation)
  6. Absent any extended family (basically any descendants of the decedent’s grandparents), the assets will transfer to the state (ARS 14-2105)

The right to representation is similar to anti-lapse laws and allows the descendent of a legal heir to claim their deceased parent’s or grandparent’s share of the inheritance. For example, the decedent’s niece can claim her deceased parent’s share of the estate if a portion of the estate goes to the decedent’s siblings.

What to Do If You Are Entitled to a Deceased Beneficiary’s Inheritance

The executor or personal representative is the individual who has been appointed by the court to manage the decedent’s estate through probate. Since most executors are family members of the deceased with little to no experience in probate, it’s not uncommon for mistakes to be made in complicated matters such as this. If you believe you are entitled to a portion of an estate due to the death of a beneficiary, you should consult with an experienced probate attorney as soon as possible.
 

Call Probate Attorney Ryan Hodges at (480)467-4365 to discuss your case today.

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