Wills and Probate

"Wills and Probate".  In a will, a person or "testator" expresses, in writing, what he (or she) wants done with his property after he dies.  Arkansas requires that wills be signed by the testator and witnessed by at least two people.

"Probate" is a court proceeding in which final debts are settled and legal title to property is formally passed from the deceased person or "decedent" to his heirs. Probate proceedings take place in the Probate Division of Circuit Court in the county of the decedent's legal residence at the time of his death.  If a person dies "intestate," meaning "without a will," state law determines how to distribute his property.
 
If you die "intestate"- without a will- what happens to your property ("estate") will depend on your marital status and whether or not you have children.

Married With Children

Arkansas law awards one-third (1/3) of the real estate of someone who dies without a will to the surviving spouse for her life.  It awards one-third (1/3) of the personal property (money, furniture, jewelry, and "stuff") to the surviving spouse.  The rest of the property goes to the children, regardless of their ages.


Married With No Children

Arkansas laws give only one-third (1/3) of the estate to the surviving spouse. The remainder generally goes to the deceased person's parents, or if the parents are dead, to brothers and sisters.


Single With Children

When a single person with children dies without a will, Arkansas law provides that the entire estate goes to the children.


Single Person With No Children

In this situation, Arkansas law gives the property to the deceased person's parents. If both parents are deceased, the property is divided among the brothers and sisters.


Will Basics

You definitely need a will if you have children.  Even if you don't have children, you probably need a will. Arkansas has formal requirements for preparing and signing a will.  

Generally:
    You must declare that the document you're signing is your will
    Your signature must be witnessed by at least two or three witnesses, who must sign the will in each other's presence


Types of Wills

A "holographic" will is handwritten, without witnesses.  Arkansas will recognize a  holographic will if it is witnessed by at least three credible disinterested witnesses to the handwriting and signature of the testator.

A "self-proving" will is one that has been witnessed and signed with all the formalities required by state law.  A self-proving will saves a great deal of time and effort when it turns out that one or more witnesses can't be located or are themselves deceased.


What Should My Will Include?

Your will should detail:

    That you are of sound mind as you are reading and signing the will

    The names, locations and dates of birth of your immediate family, including your spouse and all children, including adopted children. Talk with your lawyer about whether to name illegitimate children and      stepchildren to avoid claims that you have simply left them out and would have provided for them if you'd been thinking of them

    Appointment of a guardian and alternate guardian for any minor children. Your lawyer will be able to tell you whether you should have a separate guardian to manage their finances

    A list of who should inherit specific items of property. This is often handled more informally with a separate list that can be frequently updated, which is kept with the will.


Where Should I Keep My Will?

A will should be kept in a safe place such as a bank safe deposit box or fireproof safe at home, where it can be easily located after your death.  If you keep your will in a safe deposit box, you'll need to arrange for your executor to have access to the box after your death. Many states put a freeze on a safe deposit box at death, which makes it more difficult to retrieve the will.


When Should I Update My Will?

Your will should be updated whenever:

    You marry or divorce

    You give birth to or adopt a child

    When a family member or other beneficiary of your estate dies

    When someone you've named as an executor, trustee or guardian is no longer able to fulfill that role

    When you decide to change an executor, trustee or guardian

    When you want to change the way your property will be distributed

    When you move to another state

    When your net worth increases dramatically


Revising a Will

A will can be revised by:

    Making minor changes in what's called a "codicil," a formal amendment to the will

    Preparing an entirely new will revoking the prior will

    Independent events such as divorce or adoption. State laws vary as to the effect these events may have on the validity of your will.


Although making a will is a sobering experience, your loved ones and friends will thank you for being so organized and thoughtful ahead of time.

"Probate" is a court proceeding in which final debts are settled and legal title to property is formally passed from the deceased person - called the "decedent" - to his or her heirs. A probate case is filed in the county of the decedent's legal residence at the time of his or her death.

"Probate Court" is a division of Circuit Court in Arkansas.  Circuit Judges hear various matters, including probate.

"Small Estates"  There are procedures set up to handle the settlement of small estates, or even larger uncomplicated ones.  In Arkansas, an Affidavit for Collection of Small Estates is used.  Your attorney will discuss this option with you.

Details of the probate process vary greatly depending upon the facts and circumstances of each decedent.  However, the process usually goes as follows:

    Usually, the first step is taken by the "executor" - the person named by the decedent in his or her will to process the estate - or another interested person who has the original will. This person files a "Petition for Probate of Will and Appointment of Executor" or something similar.

    If there is no will, somebody must come forward and ask the court to be appointed as "administrator" instead of an executor.  Most often, this is the surviving spouse or an adult child, although it might also be another interested person.  The "probate estate" simply refers to any property that's subject to the authority of the probate court. Assets disposed of outside the probate process are part of the "non-probate estate."

    After the court decides that the will is genuine and valid, the court issues an order "admitting the will to probate" or some similar proclamation. The Clerk then records the will. Arkansas law then requires public notice of the probate proceeding by the publication of newspaper ads.

    Occasionally, however, there might be an objection.  For example, somebody might claim that the document being offered to the court is actually a forgery. Or, more commonly, someone claims that the document being objected to was revoked in a later Will.  Whatever the objection or claim, it must be brought to the judge's attention.

    The judge's order also formally appoints an executor.  This appointment gives him or her full authority to handle the decedent's accounts.  The Executor is given a certified court document that will be recognized by financial institutions and others, often called "Letters of Administration" or "Letters Testamentary."

    A will is a public record, and so is the final settlement and inventory of estate property. As such, these papers may be viewed by anyone.


An executor or administrator:

    Collects, inventories and appraises all assets that are subject to probate

    Pays taxes and creditors

    Pays funeral expenses

    Pays the costs of administration, such as for a lawyer and appraisers

    Formally transfers the estate property according to the will, or by the state laws of "intestate succession" if there is no will

What remains of the estate after these payments are made is available for distribution to heirs and beneficiaries.


Will My Heirs Have to Pay Taxes on What I Leave Them?

In the near future, more people won't have to pay estate or death taxes. Congress changed the Federal Tax Code to gradually limit federal estate taxes.  If you die in 2008, you won't pay federal estate taxes unless your estate is worth more than $2,000,000.  Beginning in 2009, the estate will have to be worth more than $3,500,000 before there is an estate tax issue.

In determining the size of your estate for federal tax purposes, you'll include the value of:

    Property
    Personal possessions
    Cash
    Pensions and retirement accounts
    Life Insurance
    Any other assets
    State Taxes