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What If a Last Will and Testament Can’t Be Found?

Posted by Zach Dana on August 23, 2016

Last Will and Testament Papers

What If a Last Will and Testament Can’t Be Found

A last will and testament is one of the most important tools available to people today to leave behind specific directions about what should happen to their estate, or assets, after death. Having a will is ideal, but many people do not go through with the process of establishing one or, if they do, they may not inform loved ones of where that will might be. If your loved one or friend has died, and a will is not easily accessible, you may be wondering what happens to his or her estate.

Arizona’s Laws for Last Will and Testament Matters

Under Arizona’s probate laws, there are three things that can happen after a person dies whether there is or is not a will. It can be done informally, formally, or through supervised probate. Under the state’s laws, most types of assets do not have to go through probate. Rather, the assets pass through to their owners automatically after an individual dies. This includes:

  • Property that is held in joint tenancy, or property owned by more than one person such as a bank account or a home
  • Property considered community property with a right to survivorship, which explains that a married couple may add the right to survivorship, or ownership, to any type of community-owned property
  • Contracts such as life insurance policies or annuities, which payout to the named beneficiary
  • Retirement accounts, which also pay out to the named beneficiary

Informal probate in Arizona requires a personal representative from the family, such as a spouse or heir, to represent the paying of debt and distribution of the individual’s assets. If a last will and testament is present, the representative follows the directions there. If there is no will available, the individual makes the decisions about who gets what. As long as no one challenges the representative, who is appointed by the court, there is no further decision process.

In a formal probate process, legal issues are resolved as a part of the process. This may happen if there is a claim to the existence of a last will and testament or a dispute over the representative. The final option is a supervised probate process in which the court oversees the entire process. The personal representative must go to court before making any decision. The court may appoint this probate process when there is a need to protect a creditor, inheritor, or another interested party.

How Does the Process Get Started?

If no will is left behind or available at the time of an individual’s death, the court will appoint a person to serve as a personal representative. Under Arizona law, the first person named is a spouse. From there, children and parents are appointed. However, the court will consider appointing someone for the process who volunteers to do so. From here, the following occurs:

  • The court will acknowledge the named personal representative and the lack of an available will.
  • Then, the personal representative will notify those who are inheritors within 30 days.
  • A notice is sent by the representative to all known creditors who have four months to make a claim after the publication of that notice to file a claim.
  • The assets for the estate are gathered.
  • Creditors are paid from the value of the estate.
  • Assets are then distributed to the heirs based on the decisions of the representative. Since there is no will, this individual generally maintains the decision making process.
  • The representative then petitions for closing the case with the court.

When there is a disagreement over any component of the deceased individual’s property, the probate court will settle the matter based on the facts of the case.

If you believe a will exists or you are considering becoming a personal representative, are an heir, or another person with claims to the individual’s estate, it is best to work with an experienced attorney. He or she will be able to provide you with the support necessary to ensure your loved ones assets and debts are dealt with properly if a will can’t be found.

At Dana Law Group, we serve clients throughout the state of Arizona. Whether you are in charge of distributing someone’s estate or looking for an attorney to guide you through the process of creating your own estate plan, we can help. Contact us today at 1-800-381-8132 or submit an inquiry online and one of our experienced attorneys will be in touch shortly.