Do I Need a Will?

This post seeks to answer the common question, Do I need a will?

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That depends. The question, Do I need a will? often substitutes for the alternative question, What happens if I die without a will?

To die without a will—or to die intestate—is to die without letting your desires known. (It doesn’t matter whether you’ve actually failed to make your desires known. As far as Arkansas is concerned, if you don’t have a will, you haven’t expressed your wishes.)

Consequently, the State of Arkansas will decide how to distribute your property. The state uses a standard formula to do so. It gives no regard to what your desires may have been. For example, if you die without a will, your surviving spouse might not be first in line to inherit.

Do I Need a Will? Under Arkansas Law

Do I need a will? is a personal question heavily dependent on your individual circumstances and desires. Determining whether you need a will requires an understanding of Arkansas law. You mainly need to understand the process by which property passes after death.

Probate is the process by which the state distributes your property after your death. Probate applies whether or not you die without a will.

Some property, however, does not go through probate. This type of property passes automatically at death. It is known as non-probate property.

Non-probate property includes life insurance proceeds, money held in joint bank accounts, retirement accounts, and property held in trust. It also includes real estate held in joint tenancy or tenancy by the entirety. (If you have purchased a home with your spouse, you likely own it in one of these forms.) An Arkansas estate planning attorney may utilize any or all of these non-probate transfers to increase the ease by which your property passes after your death.

If you die without a will, however, property passing through probate will be distributed according to the multi-step process below. (Please note, this is Arkansas law. Each state has its own scheme.)

1. Homestead and statutory allowances.
2. Dower or curtesy.
3. Intestate succession.

Homestead and Statutory Allowances

The homestead allowance entitles your spouse and minor children to the income and profits from the homestead. It applies regardless of whether you have a will. This usually means your family will receive the right to occupy your primary place of residence. This right takes priority over all of your debts, generally excepting the home’s mortgage.

Also, your surviving spouse is entitled to a small allowance for subsistence and whatever furnishings are reasonably necessary for the occupancy of the home. As a practical matter, the exercise of this right can be relatively complicated. You should, therefore, speak with an Arkansas estate planning attorney if you have questions about how this could apply to your specific circumstances.

Dower and Curtesy

Dower—which refers to the rights of a surviving wife—and curtesy—which refers to the rights of a surviving husband—entitle your surviving spouse to a portion of your property. This right takes precedence over your creditors and other heirs. It can also override your will.

You generally cannot completely disinherit your spouse in Arkansas.

If you have children, your spouse is entitled to a life estate in one-third of your real estate and one-third of your other property outright. If you do not have any children, your surviving spouse is entitled to one-half of all your property. Your creditors, however, may reduce this to as little as one-third.

Your individual circumstances and preferences will largely determine whether you need a will. Again, an Arkansas estate planning attorney should be able to explain the practical effects of dower or curtesy on your particular circumstances. An understanding of dower and curtesy can help you answer the question, Do I need a will?

Intestate Succession

Your remaining property is then subject to the claims of your creditors. The state will distribute any property remaining after paying your debts according to the scheme below.

1. To your surviving children. So, if you have any surviving descendants, your spouse will inherit nothing else.
2. To your surviving spouse. If, however, you have been married less than three years, your surviving spouse will only inherit half.
3. To your surviving parents.
4. Then to your surviving brothers and sisters.
5. To your grandparents, uncles, and aunts.
6. To your great-grandparents, great-uncles, and great-aunts.
7. Then to your surviving spouse of a marriage less than three years. So, if have been married less than three years, your spouse will only inherit everything if you have no descendants and not one of your great-grandparents, whether deceased or alive, has any surviving descendants.
8. The county where you resided at the time of your death. (Note that very rarely will the government inherit if you don’t have a will.)

Usually, if a potential heir predeceases you, their descendants will inherit in their place. So, for example, if a child predeceases you, your grandchild, if applicable, would inherit.

Conclusion

When clients ask me, Do I need a will? the answer is almost always yes. Unless you would like your property distributed as described above without any room for flexibility or allowances for your family’s individual circumstances, you need a will.

If you would like to leave everything to your spouse, as many people do, you should consider a will. Contact an Arkansas estate planning attorney to discuss your need for a last will and testament as part of your estate plan.

So, Do I Need a Will? Yes, and you probably do too.

See Also:

Parents Dying Without a Will
The Holographic Will