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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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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