§ 14-2702 — Devisees; surviving of testator; requirement; exception

Arizona § 14-2702

• Jurisdiction: Arizona
• Title 14: Arizona Revised Statutes
• Ch. 2: INTESTATE SUCCESSION AND WILLS
• Art. 7: Governing Instruments

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A. For the purposes of this article, except as provided in subsection D of this section, a person who is not established by clear and convincing evidence to have survived an event, including the death of another person, by one hundred twenty hours is deemed to have predeceased the event.

B. Except as provided in subsection D of this section, for purposes of a provision of a governing instrument that relates to a person surviving an event, including the death of another person, a person who is not established by clear and convincing evidence to have survived the event by one hundred twenty hours is deemed to have predeceased the event.

C. Except as provided in subsection D of this section, if it is not established by clear and convincing evidence that one of two co-owners with right of survivorship survived the other co-owner by one hundred twenty hours, one-half of the property passes as if one had survived by one hundred twenty hours and one-half as if the other had survived by one hundred twenty hours, and if there are more than two co-owners and it is not established by clear and convincing evidence that at least one of them survived the others by one hundred twenty hours, the property passes in the proportion that one bears to the whole number of co-owners. For the purposes of this subsection, "co-owners with right of survivorship" includes joint tenants, tenants by the entireties and other co-owners of property or accounts held under circumstances that entitle one or more to the whole of the property or account on the death of the other or others.

D. The survival requirements of this section do not apply if:

1. The governing instrument contains language that deals explicitly with simultaneous deaths or deaths in a common disaster and that language is operable under the facts of the case.

2. The governing instrument expressly indicates that a person is not required to survive an event, including the death of another person, by any specified period or expressly requires the person to survive the event by a specified period. However, survival of the event or the specified period must be established by clear and convincing evidence.

3. The imposition of a one hundred twenty hour requirement of survival would cause a nonvested property interest or a power of appointment to fail to qualify for validity, or to become invalid under section 14-2901, subsection A, B or C. However, survival must be established by clear and convincing evidence.

4. The application of a one hundred twenty hour requirement of survival to multiple governing instruments would result in an unintended failure or duplication of a disposition. However, survival must be established by clear and convincing evidence.

E. A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument who is not entitled to the payment or item of property or for having taken any other action in good faith reliance on the beneficiary's apparent entitlement under the terms of the governing instrument, before the payor or other third party received written notice of a claimed lack of entitlement under this section. A payor or other third party is liable for a payment made or any other action taken after the payor or other third party received written notice of a claimed lack of entitlement under this section.

F. Written notice of a claimed lack of entitlement under subsection E of this section must be mailed to the payor's or other third party's main office or home by certified mail, return receipt requested, or served on the payor or other third party in the same manner as a summons in a civil action. On receipt of written notice of a claimed lack of entitlement under this section, a payor or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent's estate or, if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence. The court shall hold the monies or item of property and, on making its determination under this section, shall order disbursement in accordance with the determination. Payments, transfers or deposits made to or with the court discharge the payor or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.

G. A person who purchases property for value and without notice or who receives any payment or other item of property in partial or full satisfaction of a legally enforceable obligation is neither obligated to return the payment, item of property or benefit nor is liable for the amount of the payment or the value of the item of property or benefit. However, a person who, not for value, receives a payment, an item of property or any other benefit to which the person is not entitled is obligated to return the payment, item of property or benefit or is personally liable for the amount of the payment or the value of the item of property or benefit to the person who is entitled to it.