Both Parties are deceased before Probate starts


If the deaths were at the same time, for example, where the two were in the same accident, or both passed away within a very short time period, it is generally treated as if that person predeceased the other for probate and other purposes.  The statutory rule in Arizona is that a person must survive the death of another person by 120 hours before they can inherit any property as an heir or devisee.  This rule has very broad application, covering not only Wills, but also trusts, joint tenancies, annuities, insurance  policies, and any other similar documents governing the transfer of property, whether testamentary or not.  However, this general rule can be altered by the instrument governing the distribution – the Will for probate assets, or the trust document or insurance policy for other assets.

If a spouse fails to survive the other by the requisite amount of time, either 120 hours or as otherwise specified, the presumption that they predeceased their spouse applies to the application of the Will or governing document, as well as any statutory allowances available to the decedent, with the exception of the family allowance.  These rules will not apply, however, if there are no other existing heirs for the property and it would instead go to the state.  In that case, the assets will go to the spouse’s estate as if they had survived the decedent.

These rules apply not only to the spouse, but also to any heirs or devisees of the decedent.  So when interpreting the Will or determining legal heirs, it will be treated as though that person passed away before the decedent.  The treatment of an devise or bequest will then be treated according to the terms of the Will or the statutory distribution rules in the case where the Will is silent on the matter.   Contact a Tucson Probate Attorney who can help you sort out the proper disposition of property in this situation.


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