Is it Mandatory to Probate a Will?

The short answer is YES, though there are some exceptions.

Before we dive into the details of why, let’s first look into what Probate is exactly.

What is the Probate Process?

Probate is the legal process or procedure filed with the Circuit Probate Court which governs how a deceased person’s property is distributed.

This procedure must be followed to formally pass assets from the deceased person’s estate to his or her heirs or beneficiaries.

Whether probate is needed depends on the type of property, how it is titled/owned, and taking into consideration other state laws.

Probate usually still needs to be filed if there is not a Will, but it is especially important to start the probate process when there is a Last Will and Testament.

What are the Probate Laws?

Arkansas law states that no Last Will and Testament shall be in effect for the purpose of proving title to or the right to possess any real or personal property of someone that has passed away until the Will has been admitted to probate.

For a Will to be effective to prove the transfer of any property or to nominate an executor, a Will must be declared valid by an order from the court. In simple terms, without officially probating a will, you do not fully legally own property that was left to you in a Will.

Also, whoever is nominated as the Executor of the Will does not officially have the authority to act on behalf of the estate until the court enters an order legally appointing them and issuing letters testamentary.

How Do I Access Bank Accounts?

You will need the probate documents to be able to access bank accounts again, speak with the bank and other creditors, and to legally be able to sell or transfer estate property. This is especially important when you are dealing with a home or other real property. Probate is required to formally and legally transfer the deed to the property from the estate to the beneficiary.

In addition to proving the right to own certain property, admitting the will to go through probate also helps protect the parties involved from false claims of wrongdoing or converting estate assets and triggers some very important timelines.

What Happens Once the Will is Admitted?

After a Will is admitted to probate notice must be given to all heirs of the decedent and all parties that receive anything under the will. Admitting the Will to probate and providing notice also starts the clock running to contest the validity of the Will.

Additionally, there is a notice to creditors required that starts a six (6) month claims period. By admitting the Will to probate and giving proper notices, the nominated Executor shields themselves from personal liability and false claims of misusing estate assets.

If you were to use estate property without officially opening probate, a creditor or other person entitled to property could file a lawsuit against you to collect that property and could possibly even file criminal charges.

How Long Do I Have to Admit the Will?

In Arkansas there is a five (5) year time limit on admitting the Will to probate from the date of death.

If a Will is not admitted to probate in this timeframe, then it is deemed invalid and will not transfer property to the beneficiaries listed.

What Happens If the Will Doesn’t Hold Up?

If the Will is invalidated then the passing of all the assets and estate property reverts back to the laws of intestacy (no Will) and property passes to the blood heirs in equal shares depending on if there is a spouse, children, or other close family of the deceased person.

This becomes a major issue if the Will excluded certain family from inheriting property; that person could then inherit remaining assets against the wishes of the decedent. This may also cause a problem if someone is living in a home because it was conveyed to them in a Will.

What Happens If I Don’t Go Through Probate?

If the Will is not probated the home could now pass to other heirs and could be sold out from under the person who would have received it otherwise under the Will.

The main exception to probating a will is when there is no property that belongs to the estate and is actually subject to the Will.

How property is owned/titled may affect how the remaining property itself is transferred and whether it is property of the estate. As a general rule, jointly owned property usually is not part of the probate estate.

For example, if a bank account, vehicle, or real property has another joint owner on the title, account, or deed with right of survivorship, then that property automatically passes to the other co-owner at the death of the decedent.

How Can I Help Avoid Probate?

Other things that keep property out of probate are payable on death (POD), transfer on death (TOD), or other types of beneficiary designations.

Life insurance policies and retirement accounts are also typically transferred by beneficiary designation outside of probate.

Does a Trust Help Avoid Probate Court?

Another very popular way of avoiding the probate law, is a revocable living trust. It is very important to determine how property is owned to decide if probate is needed or not.

If you are unsure of if a Will is valid and needs to be probated, please do not hesitate to reach out to our firm so that we can address your unique situation and give you the best advice possible.

Don’t wait until it’s too late or more problems are created because you did not take the appropriate actions! Probate may seem complicated and scary, but with the right information and assistance, it can actually be a very simple process.