{"id":303,"date":"2019-03-22T08:40:55","date_gmt":"2019-03-22T15:40:55","guid":{"rendered":"https:\/\/www.jacksonwhitelaw.com\/probate\/?p=303"},"modified":"2022-11-14T13:05:49","modified_gmt":"2022-11-14T20:05:49","slug":"undisposed-assets-in-probate","status":"publish","type":"post","link":"https:\/\/www.jacksonwhitelaw.com\/probate\/blog\/undisposed-assets-in-probate\/","title":{"rendered":"What Does Undisposed Mean in Probate?"},"content":{"rendered":"

Introduction<\/h2>\n

The term \u201cundisposed\u201d can have several meanings in probate cases depending on the context. \u201cUndisposed assets\u201d typically refer to estate property that wasn\u2019t bequeathed in the decedent\u2019s will, while an \u201cundisposed estate\u201d usually means an estate that hasn\u2019t been probated.<\/p>\n

In both cases, the term \u201cundisposed\u201d isn\u2019t necessarily a bad thing. Undisposed assets that aren\u2019t covered in the will may pass to the decedent\u2019s legal heirs according to the state\u2019s intestacy laws. Assets that aren\u2019t subject to probate can transfer to beneficiaries outside of probate. Undisposed estates that qualify for the state\u2019s small estate exemption may settle the estate outside of probate, and estates that are comprised entirely of non-probate assets can transfer the estate\u2019s assets without opening probate.<\/p>\n

Intestate Succession<\/h4>\n

When you pass away without a will, you die \u201cintestate<\/a>,\u201d and your property will be distributed through probate according to the state\u2019s intestacy laws. These laws also apply to estates where the decedent left a will, but there are some undisposed assets that were not covered by the will. In such cases, only the undisposed assets would be subject to intestate succession laws.<\/p>\n

In the state of Arizona, intestacy laws favor the decedent\u2019s surviving spouse and children. If the decedent had a spouse and only had children with that spouse, then all undisposed assets would transfer to the surviving spouse. If the decedent had a spouse but had children with another partner, then the surviving spouse would receive half of the undisposed assets, with the other half split between the children from separate relationships (ARS 14-2102<\/a>).<\/p>\n

When the decedent doesn\u2019t have a surviving spouse, Arizona law (ARS 14-2103<\/a>) dictates the following order of succession:<\/p>\n

    \n
  1. To the decedent\u2019s descendants by representation (children, grandchildren, etc.)<\/li>\n
  2. If there are no surviving descendants, to the decedent\u2019s parents<\/li>\n
  3. If there are no surviving descendants or parents, to the decedent\u2019s siblings by representation (includes nieces and nephews if the decedent\u2019s sibling is deceased)<\/li>\n
  4. If there are no surviving descendants, parents, siblings, nieces, or nephews, to the decedent\u2019s grandparents by representation (includes aunts, uncles, and cousins if the grandparents are deceased)<\/li>\n
  5. If there are no surviving family members, the undisposed assets will transfer to the state<\/li>\n<\/ol>\n

    Again, intestacy laws only apply to undisposed assets that can only be transferred through probate but are not covered in a will. Assets that aren\u2019t subject to probate are permitted to transfer to designated beneficiaries outside of probate regardless of whether or not they are covered in a will. As such, it\u2019s important to distinguish between assets that require probate, and assets that are not subject to probate.<\/p>\n

    Probate Assets<\/h4>\n

    Generally speaking, individually-titled assets can only be transferred through probate. That includes individually-owned bank accounts, brokerage accounts, real estate, and personal possessions like vehicles, boats, ATVs, art, jewelry, and collectibles. Real estate that\u2019s owned as tenants in common is also subject to probate, as the decedent\u2019s share of ownership will need to pass to a beneficiary or legal heir. If any of these assets are undisposed by will, they\u2019ll be subject to intestate succession.<\/p>\n

    Non-Probate Assets<\/h4>\n

    Assets that have a designated beneficiary listed on the account are permitted to transfer ownership outside of probate. These assets are commonly referred to as non-probate assets, and they shouldn\u2019t be disposed of by will. In fact, if non-probate assets are mentioned in the will, the designated beneficiary that\u2019s listed on the account will trump the beneficiary listed in the will. As such, it\u2019s best to leave non-probate assets out of your will to avoid unnecessary legal battles between competing beneficiaries.<\/p>\n

    The following assets are considered non-probate assets:<\/p>\n