In this post, I discuss the various steps in the Arkansas probate process. For more detailed information, please see my book, The Simple Guide to Estate Planning: A Look at Wills, Trusts, and Taxes.
Probate is the process by which the courts settle a person’s estate after death. It is the means by which courts distribute property to the deceased’s heirs. (Non-probate property, however, generally bypasses this process entirely.)
Below is a general description of the Arkansas probate process. Please note that it is just a general overview. The process can be very straightforward, incredibly complex, or anything in between. Individual circumstances will vary.
Important Documents for Arkansas Probate
There are several necessary documents associated with the Arkansas probate process. These should be readily available to the court. These documents include:
- The will, if one exists.
- The decedent’s death certificate.
- Deeds to the decedent’s real property.
- Information on the decedent’s other property and bank accounts.
- A complete list of the decedent’s assets, including life insurance policies.
The Role of the Arkansas Probate Attorney
Attorneys can play a valuable role during the probate process. An attorney can represent the estate itself, the executor of the estate, or the beneficiaries of the estate. (Who the attorney represents depends on the circumstances.)
The Arkansas probate attorney will need to know a variety of information associated with this decedent. At the very least, the attorney will require the following pieces of information.
- Date of death.
- Date and place of birth.
- The decedent’s last known address.
- The decedent’s social security number.
In addition, the attorney will need the decedent’s will, if there is one. If there is a will, it must be attested or holographic. If there is no self-proving affidavit, the court will also require the witnesses to the will signing to testify. The executor should also search for any will codicils—or amendments.
The estate must have a personal representative through the process. This individual is known as the executor. (Technically, this term is only appropriate where the decedent names the estate’s representative in a will.)
If there is no will naming an executor, then the court will appoint a representative. This person is called the administrator. An administrator nonetheless enjoys similar powers to an executor. In fact, the two terms are often interchangeable. Usually, an Arkansas probate court will name a next of kin as the administrator.
Whether the court names an executor or an administrator, both function as the estate’s representative.
The attorney involved may also petition the court to have a personal representative appointed. After filing the petition with the Arkansas probate court, the attorney can file a testament of acceptance. The attorney files this on behalf of the desired personal representative.
The court will then sign an order appointing the representative. After this, the clerk of the court should sign letters testamentary. Letters testamentary provide the representative with the authority to act on behalf of the estate.
These are vital documents and should be kept in a safe place. Some companies require the originals before accepting the authority of the estate’s representative to act.
In a previous post, I discussed dower and curtesy rights. A particular circumstance arises where a will does not provide the spouse with the minimum the law requires.
A surviving spouse is entitled to a minimum inheritance by law. A testator cannot, therefore, disinherit a surviving spouse without that spouse’s consent.
In such circumstances, an Arkansas probate court will allow the spouse to elect against the will. That is, the spouse may choose to accept the provisions of the will or to take the statutory minimum. (This is frequently what the surviving spouse would have inherited had the decedent died without a will. This, however, is not always the case.)
The representative must notify the surviving spouse of a statutory right to the estate. The representative must do this within one month of the court’s issuing letters testamentary. A surviving spouse is entitled to whatever dower and curtesy rights provide. It does not matter if the will provides for less.
Notice, Heirs, and Beneficiaries
The representative must notify heirs at law when probate begins, even if they are not beneficiaries under the will. (Heirs at law are generally those who inherit under the intestacy statute.) The representative must notify all will beneficiaries as well.
While the heirs at law and beneficiaries are often the same people, such is not always the case. Beneficiaries have the right to an accounting and to appear in court, though they may waive this right, should they so choose. Waivers must be sent with proof of service and filed with the court.
The representative must publish notice of the impending Arkansas probate process in the newspaper. This publication serves to notify creditors and potential heirs.
Arkansas requires a six-month credit-claim period. This means that creditors have six months to file claims against the estate. The clock begins to run with the publication of the newspaper ads.
The representative must publish this notice for two weeks in a row. The representative must also provide the court with proof of the publication.
Once the six-month period has ended, the representative must file a petition with the court to finalize the payment of claims. The representative can distribute assets to heirs only after paying creditors. (Some rights of heirs, however, take priority over creditors.) When the representative distributes assets, he or she must also provide receipts evidencing the distribution.
Estate Tax Returns
Like the income tax, the estate tax requires the filing of its own tax return. The representative must file this within nine months of the decedent’s death. This may delay all or some distribution of assets.
The representative must sign the estate tax return and is personally liable for the payment of estate taxes. He or she should, therefore, take great care not to distribute too many assets early. This could leave the estate with insufficient funds to satisfy the tax liability due.
It is therefore usually advisable to wait until receiving the closing letter from the IRS before distributing assets. (The closing letter is the letter indicating the IRS has accepted the estate tax return.)
Completing the Arkansas Probate Process
After receiving the closing letter, the representative can file a report of distribution with the court. The court may then issue an order of approval for the distribution. Finally, the court may dismiss the representative.
An interested party may later petition the court to reopen the estate should another issue arise. There are, however, fees associated with doing so. Courts also generally disfavor doing this.
For more detailed information, please see my book, The Simple Guide to Estate Planning: A Look at Wills, Trusts, and Taxes.
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