Probate is a legal process where Courts address what is to happen with our property after we die. Since we are no longer around to sign the title to our car or the deed to our home, the law provides for a way to transfer our property and to pay any valid debts we leave behind. This process is called Probate.
In Arkansas there are basically two types of probate—Small Estate and all others.
For those that qualify, this type of probate is faster and easier. It is available when the total value of all assets in the estate—personal property, all bank accounts, all real estate, etc.—is less than $100,000. It still requires a Judge’s signature, but does not require appointment of a personal representative. Forty five days must have passed since the death and all creditors must have been satisfied. If you think that a Small Estate might apply to your situation, our attorneys are happy to meet with you to help you determine the first steps to begin this process.
Probate for Estates valued over $100,000
Probate is more complex when the estate is valued over $100,000. If this describes your situation, come talk to our probate attorneys as soon as possible after the death of your loved one. The help of an experienced attorney is invaluable in the probate process. When you are working with an attorney through probate, the attorney represents the estate.
When you have a will at the time of death, it is called testate; without a will at the time of death is called intestate. If your probate involves a valid will, the Court will ultimately use the probate to divide the assets according to the terms of the will. If there is not a valid will, the Court will divide the property according to Arkansas laws that state who has a share in the assets. See our wills page for more information about wills.
Some property is not part of the estate and passes directly to the joint owner or beneficiary outside of probate—such as life insurance proceeds, money in a joint bank account, retirement accounts and property held in trust. Real property is also not part of the estate if the title was held in joint tenancy or tenancy by the entirety. If you bought your home with your spouse, it is likely that your home is titled in one of these forms of ownership.
The Court must first appoint a personal representative or administrator. This is similar to an executor of a will and is the person that will work closely with the attorney for the estate. Once you have been appointed by the Court, the clerk will sign Letters Testamentary and your attorney will recommend that these crucial papers be kept in a safety deposit box. They are proof of your authority to act on behalf of the estate.
Now you are the personal representative, what next? The attorney for the estate will work with you through this complex process. The law spells out many different tasks that have to be done and there are specific and different deadlines for each one. All possible heirs of the estate must be notified. All known creditors must be individually given notice of the probate and a separate, general notice will be published in the newspaper over a set period of time to notify other creditors. All creditors will have a deadline for submitting their claims and valid claims will be paid out of the estate before any assets are distributed.
The attorney for the estate will also guide you in other tasks that will have to be done—taking inventory of personal property, obtaining a valid appraisal of all real property, organizing an auction to sell property, filing tax returns for the estate, and many other tasks that might be required. And each step of the way the Court requires that pleadings and motions be filed informing them of the progress of the probate or asking the Courts permission for the next step.
Length of time for probate of estates over $100,000 can vary greatly. Because of required notice to creditors and length of time allowed for a response, the absolute minimum of time would be 7-8 months and some cases can last for years. All will eventually reach a conclusion, however, and the attorney for the estate will file a final accounting with the Court and ask for permission for final distribution of assets and closing of the estate. Once you finally reach the day the final order is entered, the probate is closed. It can later be reopened if another problem arises, but this is not common.
When we die, the real and personal property we owned at the time of death becomes our estate. An executor is known as a personal representative or administrator at this point and is the person named in a will to be in charge of seeing that all the terms of the will are fulfilled under… Read More