4.04.25 Decedent's Estates

Does your state use terminology different from that provided in Section 4:04.1 of the Underwriting Manual? If so, please identify and define such terms. Provide statutory citations.

Definitions for decedent's estates are set forth in Arizona Revised Statutes (A.R.S.) §14-1201. The Statute contains 59 definitions and most of the terminology is different than as contained in Section 4:04.1 of the Underwriting Manual. A copy of the Statute is as follows:

ARTICLE 2. DEFINITIONS

§14-1201. Definitions

In this title unless the context otherwise requires:

  • "Agent" includes an attorney-in-fact under a durable or nondurable power of attorney, as person who is authorized to make decisions concerning another person's health care and a person who is authorized to make decisions for another person under a natural death act.

  • "Application" means a written request to the registrar for an order of informal probate or appointment under chapter 3, article 3 of this title.

  • "Beneficiary", as it relates to a trust beneficiary, includes a person who has any present or future interest, vested or contingent, and also includes the owner of an interest by assignment or other transfer. As it relates to a charitable trust, beneficiary includes any person entitled to enforce the trust. As it relates to a beneficiary of a beneficiary designation, beneficiary refers to a beneficiary of an insurance or annuity policy, an account with pay on death designation, a security registered in beneficiary form or a pension, profit sharing, retirement or similar benefit plan, or any other nonprobate transfer at death. As it relates to a beneficiary designated in a governing instrument, beneficiary includes a grantee of a deed, a devisee, a trust beneficiary, a beneficiary of a beneficiary designation, a donee, appointee or taker in default of a power of appointment and a person in whose favor a power of attorney or a power held in any person, fiduciary or representative capacity is exercised.

  • "Beneficiary designation" refers to a governing instrument naming a beneficiary of an insurance or annuity policy, of an account with pay on death designation, of a security registered in beneficiary form or of a pension, profit sharing, retirement or similar benefit plan, or any other nonprobate transfer at death.

  • "Child" includes a person who is entitled to take as a child under this title by intestate succession from the parent whose relationship is involved. Child excludes a person who is only a stepchild, a foster child, a grandchild or a more remote descendant.

  • "Claims", in respect to estates of decedents and protected persons, includes liabilities of the decedent or the protected person, whether arising in contract, in tort or otherwise, and liabilities of the estate that arise at or after the death of the decedent or after the appointment of a conservator, including funeral expenses and expenses of administration. Claims does not include estate or inheritance taxes or demands of disputes regarding title of a decedent or a protected person to specific assets alleged to be included in the estate.

  • "Community property" means that property of a husband and wife that is acquired during the marriage and that is community property as prescribed in §25-211.

  • "Conservator" means a person who is appointed by a court to manage the estate of a protected person.

  • "Court" means the superior court.

  • "Dependent child" means a minor child who the decedent was obligated to support or an adult child who was in fact being supported by the decedent at the time of the decedent's death.

  • "Descendant" means all of the decedent's descendants of all generations, with the relationship of parent and child at each generation.

  • "Devise", when used as a noun, means a testamentary disposition of real or personal property and, when used as a verb, means to dispose of real or personal property by will.

  • "Devisee" means a person designated in a will to receive a devise. For the purposes of chapter 3 of this title, in the case of a devise to an existing trust or trustee, or to a trustee on trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees.

  • "Disability" means cause for a protective order as described in §14-5401.

  • "Distributee" means any person who has received property of a decedent from that person's personal representative other than as a creditor or purchaser. Distributee includes a testamentary trustee only to the extent of distributed assets or increment that remains in that person's hands. A beneficiary of a testamentary trust to whom the trustee has distributed property received from a personal representative is a distributee of the personal representative. For the purposes of this paragraph, "testamentary trustee" includes a trustee to whom assets are transferred by will, to the extent of the devised assets.

  • "Estate" includes the property of the decedent, trust or other person whose affairs are subject to this title as originally constituted and as it exists from time to time during administration. As it relates to a spouse, the estate includes only the separate property and the share of the community property belonging to the decedent or person whose affairs are subject to this title.

  • "Exempt property" means that property of a decedent's estate that is described in §14-2403.

  • "Fiduciary" includes a personal representative, guardian, conservator and trustee.

  • "Foreign personal representative" means a personal representative appointed by another jurisdiction.

  • "Formal proceedings" means proceedings conducted before a judge with notice to interested persons.

  • "Governing instrument" means a deed, will, trust, insurance or annuity policy, account with pay on death designation, security registered in beneficiary form, pension, profit sharing, retirement or similar benefit plan, instrument creating or exercising a power of appointment or a power of attorney or a dispositive, appointive or nominative instrument of any similar type.

  • "Guardian" means a person who has qualified as guardian of a minor or incapacitated person pursuant to testamentary or court appointment but excludes a person who is merely a guardian ad litem.

  • "Heirs", except as controlled by §14-1711, means persons, including the surviving spouse and the state, who are entitled under the statutes of intestate succession to the property of a decedent.

  • "Incapacitated person" has the same meaning as prescribed in §14-5101.

  • "Informal proceedings" means those proceedings conducted without notice to interested persons by an officer of the court acting as a registrar for probate of a will or appointment of a personal representative.

  • "Interested person" includes any heir, devisee, child, spouse, creditor, beneficiary and other person who has a property right in or claim against a trust estate or the estate of a decedent, ward or protected person. Interested person also includes a person who has priority for appointment as personal representative and other fiduciaries representing interested persons. Interested person, as the term relates to particular persons, may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding.

  • "Issue" of a person means descendant as defined in above section "Descendant".

  • "Joint tenants with the right of survivorship" and "community property with the right of survivorship" includes co-owners of property held under circumstances that entitle one or more to the whole of the property on the death of the other or others but excludes forms of co-ownership registration in which the underlying ownership of each party is in proportion to that party's contribution.

  • "Lease" includes any oil, gas or other mineral lease.

  • "Letters" includes letters testamentary, letters of guardianship, letters of administration and letters of conservatorship.

  • "Minor" means a person who is under eighteen years of age.

  • "Mortgage" means any conveyance, agreement or arrangement in which property is encumbered or used as security.

  • "Nonresident decedent" means a decedent who was domiciled in another jurisdiction at the time of the decedent's death.

  • "Organization" means a corporation, business trust, estate, trust, partnership, joint venture, association, government or governmental subdivision or agency or any other legal or commercial entity.

  • "Parent" includes any person entitled to take, or who would be entitled to take if the child died without a will, as a parent under this title by intestate succession from the child whose relationship is in question and excludes any person who is only a stepparent, foster parent or grandparent.

  • "Payor" means a trustee, insurer, business entity, employer, government, governmental agency or subdivision or any other person who is authorized or obligated by law or a governing instrument to make payments.

  • "Person" means a person or an organization.

  • "Personal representative" includes executor, administrator, successor personal representative, special administrator and persons who perform substantially the same function under the law governing their status. A general personal representative excludes a special administrator.

  • "Petition" means a written request to the court for an order after notice.

  • "Proceeding" includes action at law and suit in equity.

  • "Property" includes both real and personal property or any interest in real and personal property and means anything that may be the subject of ownership.

  • "Protected person" has the same meaning as prescribed in §14-5101.

  • "Protective proceeding" has the same meaning as prescribed in §14-5101.

  • "Registrar" means the official of the court designated to perform the functions of registrar as provided in §14-1307.

  • "Security" includes any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in an oil, gas or mining title or lease or in payments out of production under that title or lease, collateral trust certificate, transferable share, voting trust certificate and, in general, includes any interest or instrument commonly known as a security, or any certificate of interest or participation, any temporary or interim certificate, receipt or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of these securities.

  • "Separate property" means that property of a husband or wife which is his or her separate property as defined in §25-213.

  • "Settlement", in reference to a decedent's estate, includes the full process of administration, distribution and closing.

  • "Special administrator" means a personal representative as described by §§14-3614 through 14-3618.

  • "State" means a state, district, territory, possession or commonwealth of the United States.

  • "Successor personal representative" means a personal representative, other than a special administrator, who is appointed to succeed a previously appointed personal representative.

  • "Successors" means persons, other than creditors, who are entitled to property of a decedent under a will or this title.

  • "Supervised administration" refers to the proceedings described in chapter 3, article 5 of this title.

  • "Survive" means that a person has neither predeceased an event, including the death of another person, nor is deemed to have predeceased an event under §14-2104 or 14-2702.

  • "Testacy proceeding" means a proceeding to establish a will or determine intestacy.

  • "Testator" includes a person of either sex.

  • "Trust" includes an express trust, private or charitable, with any additions, wherever and however created. Trust also includes a trust created or determined by judgment or decree under which the trust is to be administered in the manner of an express trust. Trust excludes other constructive trusts and excludes resulting trusts, conservatorship, personal representatives, trust accounts, custodial arrangements pursuant to chapter 7, article 7 of this title, business trusts providing for certificates to be issued to beneficiaries, common trust funds, voting trusts, security arrangements, liquidation trusts and trusts for the primary purpose of payment debts, dividends, interest, salaries, wages, profits, pensions or employee benefits of any kind and any arrangement under which a person is nominee or escrowee for another.

  • "Trustee" includes an original, additional or successor trustee, whether or not appointed or confirmed by court.

  • "Ward" has the same meaning as prescribed in §14-5101.

  • "Will" includes codicil and any testamentary instrument that merely appoints an executor, revokes or revises another will, nominates a guardian ore expressly excludes or limits the right of an individual or class to succeed to property of the decent passing by intestate succession.

Does the disposition of property under the laws of intestacy depend upon any of the following classifications of property or rights in property: Community, separate, tenancy by the entirety, dower, curtesy, etc.? If so, summarize. Provide statutory citations.

Disposition of an intestate estate may be dependent upon whether the estate consists of community property, as well as separate property. The intestate share and community property share of a surviving spouse is set forth in A.R.S. §14-2102.

Does your state recognize joint tenancies? If so, describe the procedure necessary to pass title held in joint tenancy upon the death of a joint tenant. Provide statutory citations.

Arizona recognizes a joint tenancy estate with right of survivorship. It also recognizes an estate in community property with right of survivorship, as set forth in A.R.S. §33-431. No procedure is necessary to pass title. Owners in either form of ownership are considered co-owners and entitle the survivor or survivors to the whole property on the death of other or others. A.R.S. §14-1201.

Does your state provide for any special benefits to a surviving spouse or family that allow them to take property contrary to will provisions? Provide statutory citations.

Special benefits are available to a surviving spouse and family which may be contrary to will provisions. A decedent's surviving spouse may be entitled to a homestead allowance of $18,000 per A.R.S. §14-2402. In addition, the surviving spouse may be entitled to exempt property of not more than $7,000, as set forth in A.R.S. §14-2403. A family allowance entitlement for no longer than one year is provided in A.R.S. §14-2404.

Summarize the steps required for a testate administration. Provide statutory citations.

Both formal testacy proceedings and appointment proceedings for intestate estates are governed by the requirements as set forth in A.R.S. §14-3401 et. seq.. Administration in either type of estate is begun by the filing of a petition in accordance with the requirements of A.R.S. §14-3402, and require a judicial order after notice and hearing.

Notice shall be given in the manner prescribed by A.R.S. §14-1401.

The term "Personal Representative" also includes the administrator of an intestate estate. The appointment and control of a personal representative are as set forth in A.R.S. §14-360l et. seq. and the duties and powers of a personal representative are as prescribed in A.R.S. §14-3701.

Transactions authorized for personal representatives are as shown in A.R.S. §14-3715, including a power of sale of real property unless otherwise provided by a will or an order in a formal proceeding.

Distribution of an estate should be in accordance with A.R.S. §14-3901, and closing an estate in the manner prescribed in A.R.S. §14-3931.

Summarize the steps required for an intestate administration. Provide statutory citations.

Both formal testacy proceedings and appointment proceedings for intestate estates are governed by the requirements as set forth in A.R.S. §14-3401 et. seq.. Administration in either type of estate is begun by the filing of a petition in accordance with the requirements of A.R.S. §14-3402, and require a judicial order after notice and hearing.

Notice shall be given in the manner prescribed by A.R.S. §14-1401.

The term "Personal Representative" also includes the administrator of an intestate estate. The appointment and control of a personal representative are as set forth in A.R.S. §14-360l et. seq. and the duties and powers of a personal representative are as prescribed in A.R.S. §14-3701.

Transactions authorized for personal representatives are as shown in A.R.S. §14-3715, including a power of sale of real property unless otherwise provided by a will or an order in a formal proceeding.

Distribution of an estate should be in accordance with A.R.S. §14-3901, and closing an estate in the manner prescribed in A.R.S. §14-3931.

Is there a procedure or documentation customarily accepted by the bar to indicate heirship which is not based on a statute or cases? (e.g. Affidavits of Heirship) If so, describe the procedure and furnish a sample of any forms.

No standard procedure or forms are used in the State to indicate heirship which is not based on a statute or cases.

Are there any short or abbreviated probate procedures provided for by statute? If so, summarize. Provide statutory citations.

A transfer of title to real and personal property may be done by an Affidavit and summary administration procedure as set forth in A.R.S. §14-3971. The equity value of all real estate cannot exceed $50,000.

Are there any other probate or alternative probate procedures available in your state that haven't been described? If so, summarize. Provide statutory citations.

Arizona also provides for supervised administration in a single in rem proceeding to secure complete administration and settlement of a decedent's estate, pursuant to A.R.S. §14-3501 et seq.

Does your state statutes provide for an ?inheritance" tax? If so, is it based on (a) an heir's share of the estate or (b) is it an estate tax on the total value of the estate, or (c) on another basis? When must the inheritance tax return be filed? Provide statutory citations.

Arizona has an estate tax on residents' estates. A tax in the amount of the federal credit is imposed on the transfer of the gross estate of every resident. A.R.S. §42-1521. The tax is imposed on any estate which must file a return for federal estate taxes. A.R.S. §42-1502. The tax return is due on or before the date the federal estate tax is required to be filed.

Does your statutes provide for an inheritance tax lien? If so, summarize, e.g. What are the requirements for (a) attachment, (b) perfection; and (c) enforcement of the inheritance tax lien? Is there a statute of limitations for the inheritance tax lien? If so, specify. Provide statutory citations.

An estate tax becomes a lien from the time of death of the decedent until paid, A.R.S. §45-1511. It remains a lien until the issuance of a waiver of tax lien issued by the Estate Tax Unit of the Arizona Department of Revenue.

There is no statute of limitations for the inheritance tax lien. If any tax is not paid within five years after the due date, the sheriff shall collect the tax by levy and sale in like manner as execution sales. A.R.S. §42-1507.

Summarize the steps of the procedure for the sale of real property during the tendency of an intestate administration. Provide statutory citations.

Sale of real property for an intestate estate can be done by the appointed personal representative as set forth in the above referenced manner. A.R.S. §14-3715.

Can a personal representative for a testate administration sell real property of the estate without obtaining a court order? If so, please identify any requirements? Any limitations? Provide statutory citations.

Sale of real property for a testacy estate can be done by the appointed personal representative as set forth in the above referenced manner. A.R.S. §14-3715.

When, if ever, must a personal representative of a testate administration obtain a court order to sell real property of the estate? Summarize the steps of such procedure. Provide statutory citations.

A personal representative must obtain a court order to sell property of the estate if the sale is to the personal representative, his spouse, agent or attorney, or any corporation or trust in which he has a beneficial interest, unless the will or a contract entered into by the decedent authorized the transaction. A.R.S. §14-3713.

Does your state statutes provide for the probate of foreign wills (wills of testators not domiciled in your state)? If so, summarize the provisions and procedures. Provide statutory citations.

A foreign will may be probated in Arizona if a final order of a court of another state has determined the testacy and validity of the will. A.R.S. §14-3408 et seq. Once a foreign will has been admitted after proper notice and hearing, the estate is administered following the same procedures as other estates.

NOTE: MOST OF THE ARIZONA PROBATE CODE IS SIMILAR TO THE UNIFORM PROBATE CODE.