The Basic Rule: Property Goes Where the Will Directs
This statute sets the foundation for probate law. At death, a person's separate property and their share of community property pass to the people named in their will. If there is no will, the property passes to heirs under intestate succession rules.
This applies to all types of property in the estate. Real estate, bank accounts, retirement accounts, life insurance proceeds payable to the estate, and personal property all follow these rules. The transfer is subject to creditor claims, family allowances, and the administration process.
Upon the death of a person, his separate property and his share of community property devolves to the persons to whom the property is devised by his last will, or to those indicated as substitutes for them in cases involving lapse, renunciation or other circumstances affecting the devolution of testate estates, or in the absence of testamentary disposition to his heirs.
A.R.S. § 14-3101(A)One detail that surprises many families: the surviving spouse's share of community property is also subject to administration until the deadline for creditor claims has passed. After that window closes, the surviving spouse's community property is only subject to administration if needed to pay community debts.
When Both Spouses Die
The statute also addresses the difficult situation where a husband and wife both pass away. If the administration of one estate has not been completed before the other begins, the two estates may be combined into a single proceeding with one personal representative.
If a husband and wife both die, and the administration of one of their estates is not completed prior to commencement of administration of the other, their estates may be combined in a single administration with the same personal representative, if feasible.
A.R.S. § 14-3101(B)Families can choose between formal probate or informal probate depending on whether disputes exist. Informal probate is simpler and works well for straightforward estates. Formal probate involves court hearings and is used when there are disagreements.
How This Affects Families in Practice
For most families, this statute determines who gets the house, the bank accounts, and other real property. If someone dies without a will, the property goes to their closest relatives under state law. A surviving spouse typically receives the largest share.
If the estate is small enough, families may be able to use a small estate affidavit instead of opening a full probate case. For families with a properly funded living trust, most or all of this process can be avoided entirely. Assets held in trust do not go through probate administration.