transfer of property after death without will

2021-10-12

Real Estate and Death Without a Will

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If you recently lost a parent who did not set up a living trust, you likely have a lot of questions about what happens next. One of the main questions that come up after a parent dies without a will is “who gets the house?” The professional estate planners at Phelps LaClair are here to answer all of your questions regarding the transfer of real estate property after death without a will. 

Transfer of Property Process After Death Without a Will

When someone dies without a will, otherwise known as dying intestate, the deceased person’s estate goes to a court of probate in the county where they lived. Probate is the legal process where the court determines the transferral of the deceased’s assets based on the state’s intestate laws. 

You must file probate within the first two years after a person’s death along with a list of their potential heirs. The court will then determine the heir based on the state’s intestate succession laws. If the assets include real estate, then who the property transfers to depends on how the deceased person, legally known as the decedent, owned the property. 

Is Probate Required?

In Arizona, settling an estate requires probate when a person dies without setting up a living trust or listing the beneficiaries for automatic transfer of all assets. If the decedent has a living trust that does not include property, it may be subject to probate. However, probate isn’t always necessary. If the decedent held the property title in joint ownership with a spouse or other co-owner, probate is not required. The spouse or co-owner may transfer the property by submitting a copy of the death certificate to the title company.

Types of Property Ownership

  • Sole Ownership: If the decedent held the title of the property alone, the property goes to the heir determined by intestate succession laws.
  • Joint Tenancy: If the decedent owned the property with someone else in joint tenancy, the property goes to that surviving co-owner.
  • Tenancy by Entirety: If the decedent owned the property with their spouse, the surviving spouse becomes the sole owner of the property.   
  • Tenancy in Common: In cases of joint tenancy and tenancy by entirety, the co-owners share equal ownership interests and hold rights of survivorship. With tenancy in common, the co-owners hold differing percentages of interest based on how they contributed to the property’s purchase. Because there are no rights of survivorship with tenancy in common, the decedent’s share of the property belongs to their estate and passes to the heir determined by intestate succession laws.   

Intestate Succession Laws

If someone dies without a will and has no surviving heirs, the property passes to the State of Arizona. Otherwise, if the decedent held sole ownership or tenancy in common, the property title or interest transfers as follows:

  • To Their Spouse: If the decedent has no surviving descendants or if all of their surviving descendants belong to the decedent and their spouse, then the property passes to the spouse
  • To Their Children: If the decedent has surviving descendants but no surviving spouse, then the property goes to the surviving descendants. If some or all of the surviving descendants do not belong to the surviving spouse, then the descendants may be entitled to half of the property. 
  • To Their Parents: If the decedent does not have a surviving spouse nor descendants, then the property transfers to the surviving parents. 
  • To Their Siblings: If the decedent does not have a surviving spouse, descendants, nor parents, then the property passes to their brothers and sisters. 

Avoid Probate Court with a Living Trust

Settling an estate in probate can cost you valuable time and money. With forty years of experience, the expert team at Phelps LaClair can help you create an estate plan that will keep you out of Arizona probate court. Setting up a revocable living trust will give you and your family members peace of mind for the future. Call 480-892-2488 today for estate planning in Chandler, Mesa, Phoenix, Scottsdale, and Glendale, Arizona. 

Images used under creative commons license – commercial use (10/12/2021).  Photo by Tierra Mallorca on Unsplash

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