In this post, I discuss ways that you can avoid probate in Arkansas. Potential solutions range from the very simple to the quite complex.
For many, the hassles and expenses of probate are something they wish to spare their heirs. The best way to avoid probate is usually to formulate a comprehensive estate plan utilizing a living trust. If, however, you want to avoid utilizing an attorney’s assistance, there are a number of methods available to avoid probate that you can set up on your own. While not as comprehensive or reliable as an attorney-provided estate plan, these methods provide inexpensive ways to keep specific aspects of your estate out of probate.
Bank Accounts Can Avoid Probate
There are two main ways to keep your bank accounts out of probate: utilizing joint bank accounts and designating your accounts as payable on death. As the name suggests, all joint owners jointly own the account. In non-marital situations, however, this is generally undesirable. All joint owners have access to the account, and all joint owners must share in the liabilities of the account—such as liability incurred if one owner overdrafts the account. In addition, if you have a large estate, placing a joint owner on your account may incur gift tax liabilities when funds are withdrawn.
For non-marital situations, designating your accounts as payable on death is a good solution. The beneficiaries have no rights to the account during your life, and you can even name contingent beneficiaries.
Keeping your bank accounts out of probate is a good way to ensure that your beneficiaries have immediate access to the funds at your death, avoiding the significant delays that can accompany probate distributions.
For those desiring to avoid probate, securities accounts function similarly to bank accounts. The best method to avoid probate is to use payable on death designations.
In Arkansas, it is usually very easy for your cars to avoid probate, even where the car is included in the will. The beneficiary must only take the death certificate and a copy of the will to the DMV, which will then change the ownership. (This method may not be available in every situation.) While automobiles can be jointly registered, as with bank accounts, this is generally not advisable in non-marital situations.
Retirement Accounts and Life Insurance Proceeds
Retirement accounts and life insurance proceeds are designed to go directly to the named beneficiaries and therefore avoid probate. It is important to name contingent beneficiaries, less the proceeds be payable to your estate and be forced to go through the probate process.
Real estate held as joint tenants or tenants by the entirety bypasses probate. As I discussed in an earlier post, however, real estate held by multiple people is assumed to be a tenancy in common—unless the cotenants are married—and therefore subject to probate. So, if the property is titled to more than one person, it must specifically state that it includes a right of survivorship.
As with jointly held bank accounts, however, if you have a large estate, you should take care to ensure there will be no adverse gift tax consequences to your adding a joint tenant to your property, as it is considered a gift at the time the joint tenancy is created. This method of avoiding probate should generally be avoided, however, except in marital situations, as it could result in your losing a large portion of your property should the other joint owner demand a partition.
The beneficiary deed, also known as a transfer on death deed, is generally the better way to avoid probate. This is a deed that becomes effective upon your death. It is filed with the county clerk like any other deed and essentially becomes a general warranty deed when you die.
As with payable on death designations for bank accounts, a beneficiary deed ensures that you remain in control of the property during your life and there are no adverse gift tax consequences. In addition, it is a revocable instrument—meaning that you can revoke it at any time—and it does not cause issues with Medicaid planning.
Comprehensive Plan to Avoid Probate
As stated above, these methods are piecemeal approaches to avoiding probate. If you desire a more comprehensive—and often simpler—plan to avoid probate, you should consider a living trust.