The probate process helps to finalize the arrangements regarding a person's assets and liabilities upon his death.
In Arkansas when a person dies, his estate goes through a process called probate. This is where the individual's assets are accounted for and divided out according to the deceased’s will, if there is one. All debts are paid out at this time. If there is no will, the assets pass according to state rules that dictate how, to whom, and at what percentage the assets are passed to heirs -- called the laws of intestacy.
In Arkansas, as well as in many other states, the personal representative takes responsibility for making sure that the probate process is performed. The deceased might name a personal representative in his will. If there is no personal representative, a person interested in the role can petition the probate court in the county where the deceased resided to serve in that role.
Once the court appoints the personal representative, he receives letters testamentary -- legal documents that state he can legally act on the estate's behalf.
The personal representative receives the legal title to all of the decedent's personal property. The personal representative also has control over the real property but not the legal title to it. He is the person who submits the will for probate.
The personal representative must take an inventory of the property of the estate and its value, including:
- all interest in real estate and associated encumbrances, such as a mortgage or lien
- value of the Homestead
- household goods
- interest in a business
- financial accounts
- debts owed to the estate
The Arkansas Judiciary posts probate forms on its website.
The personal representative also is responsible for providing interested parties with notice of the decedent's death and the time period in which a claim can be made against the estate. Probate attorney Garrett Hamm states that if there is a will, heirs who would have inherited under the laws of intestacy must be notified, even if they are not mentioned in the will. Creditors usually have up to six months to make a claim against the estate.
The personal representative is responsible for publishing notice of the decedent's death and his appointment as personal representative in a local newspaper. This notice must run for at least two weeks. The time limit to file a claim starts with the first publication. The personal representative must also provide a letter of notice to any known creditors.
The personal representative pays debts as notice of the debts is sent to him. He also pays any estate tax or other taxes owed. The estate is required to file an estate tax return. The personal representative then distributes the remaining property in accordance with the will or the laws of intestacy. The personal representative completes a final accounting of the estate and submits it to probate court for its approval.
Individuals sometimes attempt to avoid the probate process altogether in order to save their loved ones from the cost, time and confusion of the process. There are a number of ways to achieve this goal. For example, all property can be transferred to a trust. If that happens, when the decedent dies he does not own anything, so there is no reason for the probate process. Similarly, individuals may acquire property in a way that immediately transfers ownership rights, such as by owning property as joint tenants with the right of survivorship.
Arkansas also provides a shortcut to the beneficiaries of a small estate, meaning that the estate's assets equal less than $100,000. A beneficiary can file a small estate affidavit with the probate court for approval, and then submit this form to financial institutions and other entities to receive the decedent's property in its possession.