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What is the Timeline for the Probate Process in Arkansas?

This is the timeline for a probate that is uncontested. That means we have to jump through all the the probate process hoops, but the family and beneficiaries are not fighting with each other.

1 - 4 Weeks

After we are hired, we will immediately get all the information together and start drafting the documents to file for probate:

  • Week 1 – gather all information and draft legal documents
  • Weeks 1-2 – get client approval and file the probate documents
  • Weeks 2-4 – file documents with the court and wait for court approval

2-5 Weeks

Once everything is filed we have to wait on the court to sign the order.

  • Weeks 2-4 – get an order from the court appointing a personal representative
  • Weeks 3-5 – obtain a bond and get approved if required by the court
  • Weeks 4-6 – File acceptance and obtain Letters

Month 2

Once the probate is opened and a personal representative is appointed, the probate starts:

  • Run an ad in the paper notifying creditors and heirs
  • File inventory if not waived
  • Obtain Estate Tax Id Number
  • Start gathering estate assets

Months 3-9

Once the notice in the paper runs, the estate can start being closed 6 months later:

  • Gather Assets
  • Sale assets if required
  • Wait and see if any claims are filed against the estate
  • Object to improper claims

Months 9-12

Once the creditor period is over, we can begin to close the estate:

  • Compile all assets, expenses, and claims
  • Object to any improper claim
  • Start paying expenses and claims
  • Petition Court for Final Distribution
  • Make Final Distribution to heirs
  • Close Estate

 

What are the steps in the probate process?

The probate process for each estate is unique, but usually involves the following steps:

  • Filing of a petition with the proper probate court.
  • Notice to heirs under the will or to statutory heirs (if no will exists).
  • Petition to appoint Executor (in the case of a will) or Administrator for the estate.
  • Inventory and appraisal of estate assets by Executor/Administrator.
  • Payment of estate debt to rightful creditors.
  • Sale of estate assets.
  • Payment of estate taxes, if applicable.
  • Final distribution of assets to heirs.

Probate can be a little tricky as you step through the process. We have experienced probate attorneys to serve clients and help fix any legal issue. If all interest parties agree and sign probate waivers, it can speed up the process.

Other interesting blawgs on topic:

How to Avoid Probate (and Family Fights) Over a Bank Account

What happens if someone objects to the will?

A Will contest is a lawsuit that is brought to challenge the validity of a Last Will and Testament. Will contests often happen when an heir or family member believes some inequity has occurred in the Will. You cannot contest a will solely because you think the distribution is unfair. A will can be contested only in certain circumstances; there must be evidence that something is wrong with the will. The following are the situations in which a will may be contested:

Mental incapacity: You may contest a Will if you believe your loved one did not have the mental capacity to write the Will.

Undue Influence: If you believe another person exerted undue influence over your loved one and induced your loved one to change the distribution under his or her Will, you may contest the will based on undue influence. Generally, the person contesting the Will is required to prove the person exerted undue influence. However, if the person had a fiduciary relationship with your loved one, that person may have to prove that there was no undue influence. People who might have a fiduciary relationship include a child, a spouse, or someone with a power of attorney.

Fraud: Arguing your loved one was fraudulently induced into signing his or her Will is another way to contest a Will. Fraud occurred if your loved one signed a will without realizing it was a Will. It could also happen if someone gave your loved one misinformation that caused him or her to change the distribution in the Will.

Not Executed Properly: Finally, a Will may be invalid if it was not executed properly. In Arkansas the signing of the Will must be witnessed by two independent witnesses,  If the document was not witnessed properly, it may be invalid.

Who Inherits if there is no Will?

This is the question no probate lawyer wants to answer. Not because they do not know the answer, but because it always confuses people. Probate lawyers prefer you have an estate plan that spells out your wishes. It makes it easier for your attorney and everyone involved. So, here is the simple explanation (it is more complicated than this, but you need to sit down with one of the many probate lawyers in Pulaski County to figure out your specific situation):

  • Have no children and been married less than 3 years? – 1/2 goes to your spouse and 1/2 goes to your parents.
  • Have no children and been married more than 3 years? All to your spouse.
  • Have children and no spouse? All to your children evenly.
  • Have children and spouse? 1/3 to your spouse and 2/3 to your children.

For your children to qualify they just have to be your kids, either blood or adopted. It does not matter if they are minor children or adults. It does not matter if you have different children from different marriages, all your children inherit equally. So long as they are blood or adopted, stepchildren do not inherit. If you want stepchildren to inherit make sure you see an attorney and have an estate plan that does that.

Does probate administer all property of the deceased?

Probate administration is required only for property owned by an individual at death, where it is necessary to “prove” who is entitled to that property as a result of the owner’s death. For example, property transferred by an individual during life to a Revocable or Irrevocable Trust (or other estate planning devices) would not be subject to probate. Similarly, property owned jointly with someone else as tenants by the entireties property, or property owned as joint tenant with right of survivorship with another surviving individual, is not subject to probate. Property passing by a valid beneficiary designation, such as a life insurance death benefit for a policy insuring the decedent or the balance of property in an IRA or similar retirement account, will avoid probate. Finally, assets that are subject to some form of Transfer on Death or Pay on Death designation, will not be subject to probate if the designated beneficiary or beneficiaries are then living. The goal of probate is to transfer assets out of the decedent’s name and to his or her heirs. Sometimes even if there are no assets, you need to open a probate for other reasons. Like a personal injury case, this is sometimes called special administration. Your probate attorney will know when to open this type of probate.

Other interesting blawg topics:

How to Avoid Probate (and Family Fights) Over a Bank Account

How does an Arkansas Power of Attorney Work?

Do I get paid for serving as an Executor?

Yes. Executors are reimbursed for all legitimate out-of-pocket expenses incurred in the process of management and distribution of the deceased’s estate.  The Executor has to fulfill his or her fiduciary duties on behalf of the estate with the highest degree of integrity and can be held liable for mismanagement of estate assets in his or her care.  It is advised that the Executor retain an attorney and an accountant to advise and assist him with his or her duties. Here is a link to an article on Arkansas Probate Costs.

How much does probate cost? How long does it take?

The cost and duration of probate will vary depending on a number of factors. For example, the value and complexity of the estate, the existence of a Will, and where the real property owned by the estate is located. If there is a Will contest or disputes with alleged creditors it can add significant cost and delay. Common expenses of an estate include executors’ fees, attorneys’ fees, accounting fees, court fees, appraisal costs, and surety bonds.

Here is a link to an article on Arkansas Probate Costs.

What does a probate attorney do?

A probate lawyer will look at the estate plan (if there is one) and review the property owned by the decedent. Once the probate attorney has reviewed the estate assets and the probate law they will decide how to move forward with the legal representation. Most probate and estate planning situations are standard, but we like to review all the possible legal issues to provide the best legal representation.

We deal with probate matters on a regular basis and like to be prepared on all of our probate cases to make sure there are no surprises if probate litigation happens. We tried to be ready for any legal issue on all legal matters.

When a legal issue shows up in an estate administration case we try to keep it inside of the probate court. Depending on what kind of legal issues and what law applies (real estate law, estate law, property law, contract law, etc.) we may have to pursue civil litigation. This is information your probate lawyer will help guide you through.

Probate and Estate Planning – Take Care of Both While Alive?

Q: Don’t want your family fighting after you are gone?

A: Probate your estate plan while you are alive.

This process is known as ante-mortem probate. The Arkansas Ante-Mortem Probate Act was passed in 1979. Ark. Code Ann. § 28-40-201 et seq. It provides testators (the people making the Will) the right to go to court during their lifetime and have their Wills validated against challenge. The proceeding allows judicial evaluation of the testator’s capacity, intent, and freedom from undue influence or fraud during the testator’s lifetime, which has the obvious benefit of the presence of the testator at the proceedings. If you are interested in this, contact a probate attorney.

The ante-mortem probate procedure is seldom used. I think to process is going unused mostly because people are unaware they can have their Will probated before their death. It might also be that unpopular because people would rather offend family members after they are dead. It is less confrontational that way. Also, more Arkansans are using living trusts as their main estate planning tool. Wills are effective estate planning tools but must be probated to be effective. Ark. Code Ann. § 28-40-104. Trusts do not have to be probated, so they are much harder to challenge. Whatever your estate planning needs you should discuss them with an attorney.

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Brandon Haubert is an experienced probate lawyer in Arkansas.

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