This is a general explanation of the primary steps of analysis of a standard Arkansas probate. This process can vary greatly depending upon many factors and your circumstances may be different, but generally, this is the process you can expect. This explanation will not address the process if a Trust is in place because a Trust will generally allow the estate to avoid probate thereby making this explanation a moot point. Certain Arkansas probate terms have been defined in A Summary of Certain Arkansas Probate Related Terms.
Step 1 – Determining if there are Probate Assets and if there is a Will: The first step of the Arkansas probate analysis is to decide if the decedent individually owned any probate assets. If the decedent did not own any probate assets, then there is likely no need for probate. If the decedent did own probate assets, then the question becomes, did the decedent leave behind a Last Will and Testament or a Trust.
If the decedent left behind a Last Will and Testament, then the Last Will and Testament will likely determine who will receive what assets and property and who is to be appointed as the Executor or Executrix of the Last Will and Testament.
If the decedent did not leave behind a Last Will and Testament or a Trust, then the court and Arkansas laws of intestacy will determine who will receive what assets.
If the decedent left behind a Trust, then the process of administering and distributing the assets and property generally does not require court intervention and does not require the probate process.
Step 2 – Determining Assets and Liabilities: After determining if there are probate assets and determining whether or not the decedent left behind a Last Will and Testament, the second step of the Arkansas probate analysis is to do an initial assessment of the estate and to determine what all assets and what all liabilities (debts) does the estate entail. This process generally consists of obtaining an initial inventory and rough valuation of all assets owned and all debts owed by the deceased individual. It is important to learn what the estate is comprised of, the total value of the estate, and the total debts of the estate.
Step 3 – Determining Personal Representative, Executor, or Executrix: After assessing the assets and liabilities of the estate, the next step in the Arkansas probate analysis is to determine who will serve as the person in charge of administering the estate on behalf of the estate of the deceased individual. This person is either referred to as the Personal Representative or Administrator (if there is no Will), the Executor (if the person to administer the estate is male and there is a Will), or the Executrix (if the person to administer the estate is female and there is a Will). If there is a Last Will and Testament in place, it will generally name who is to serve as the Executor or Executrix. If there is not a Last Will and Testament, then the court will decide who will be the Personal Representative or Administrator which can be a family member or other interested party. This is often a contentious point of Arkansas probate when there are multiple parties who wish to serve as the Personal Representative. In determining who should have the right to serve as the Personal Representative, the Court will look at provided evidence and testimony to determine who is best qualified and best suited to be the Personal Representative.
Step 4 – Petition for Probate: After completing the above-described steps of analysis of an Arkansas probate, the next step is to file a Petition to Open Probate and Appoint an Administrator/Executor/Executrix with the probate court to open the probate case, to tell the court if there is or is not a Last Will and Testament, to provide the Last Will and Testament to the court if one exists, to ask the court to declare the Last Will and Testament’s existence and validity, to identify the heirs and interested parties, and to nominate a specific person to serve as the personal representative, the executor, or the executrix (as the case may be). This Petition to Open Probate is often times contended among the heirs or family members because of disagreements on various points of the petition and how best to probate the estate. When the Petition to Open Probate is filed with the court, the other heirs and beneficiaries are entitled to a notice of this filing, a notice to any related court proceedings, and they are generally entitled to a copy of the Last Will and Testament. Various points of estate litigation often arise at this time for various reasons such as if someone has taken control of the estate, the Will, or the assets without properly filing the necessary Petition and documentation with the court, or if someone has taken it upon themselves to distribute the assets of the estate with court approval, or if someone is excluding the rightful beneficiaries from the process.
Step 5 – Letters of Administration (Testamentary): After the court determines who will serve as the Personal Representative/Executor/Executrix (as the case may be), the court will then issue Letters of Administration (also referred to as Letters of Testamentary) which is the legal document officially declaring and authorizing that person to serve as the Personal Representative/Executor/Executrix. The Letters of Administration (Testamentary) is the document by which third-parties (banks, financial institutions, insurance institutions, etc.) must acknowledge and recognize as being a lawful and valid document granting the Personal Representative/Executor/Executrix the legal authority to act and to receive information on behalf of the estate of the deceased individual. Effectively, the Letters of Administration is the key that will unlock the door to speaking with and obtaining information from any third-party with regard to the estate of the deceased individual.
Step 6 – Notice of Publication: After opening probate and obtaining Letters of Administration or Letters Testamentary, the Personal Representative/Executor/Executrix must then notify any known creditors of the deceased individual and to publish a notice of probate in the local newspaper which must run once a week for two consecutive weeks. This first date of publication will trigger what is known as the six-month claim period. The Personal Representative/Executor/Executrix must also notify the Department of Human Services (Medicaid) of the opening of the estate in order to determine if the Department of Human Services has a claim against the estate.
Step 7 – Six-Month Claim Period: Under Arkansas law, there is a mandatory six-month period by which creditors have the ability to bring any valid claim or debt against the decedent or the estate. Effectively, the first date of publication of the notice of probate triggers a six-month clock and for six months after the first date of publication, a creditor or claimant can file a claim against the estate for any debt owed by the deceased individual. If a creditor does not properly file their claim for the debt allegedly owed by the deceased individual within the six-month claim period, then that claim is forever barred and the estate is not liable for that debt with that creditor. After the end of the six-month claim period, the estate will then ascertain what claims have been filed against the estate and it will settle any valid, duly filed claims.
Step 8 – Accounting, Inventory, and Taxes: Within sixty (60) days of opening probate, the Personal Representative/Executor/Executrix must file a true and correct inventory of the assets of the estate. The estate will need to do a final accounting of all assets, disbursements, expenses, and liabilities of the estate. The estate will also need to determine if a final individual or estate tax return must be filed and if so, it will need to have said tax return filed with the IRS and the state of Arkansas.
Step 9 – Sale of Real Property or Personal Property: During the six-month statutory claim period, or even after the expiration of the six-month statutory claim period, the estate may petition the court to allow the estate to sell some or all of the real property or personal property of the estate. The court may allow the sale the real property or personal property if the heirs all agree to the sale or if the court determines that the sale of the property is in the best interests of the heirs and the estate. Often times the sale of real property or personal property is necessary to preserve the value of the property and to generate liquid funds necessary to pay any debts of the estate.
Step 10 – Petition for Accountings and Distributions: After the end of the six-month statutory claim period and after the estate has completed the necessary accountings of the estate, filed the necessary taxes of the estate, and paid all necessary debts and claims of the estate, the estate is then ready to file a petition for accountings and distribution of the remaining assets of the estate. The petition for accountings and distribution serves the purpose of showing the court that the estate has properly managed the assets, it has properly paid all debts, claims, and taxes of the estate, that is has followed Arkansas law on probate administration, and that it is now ready to sell or distribute the remaining property of the estate. At this point, the court will determine if all proper and necessary steps and requirements of probate have been met. Upon the court’s approval, the accountings will be settled and the estate will be ready to sell or distribute the assets and property of the estate (probate assets) to the heirs of the estate either according to the terms of the Last Will and Testament, if one exists, or according to the Arkansas laws of intestacy if there is no Will.
Step 11 – Close Out the Estate and Discharge the Personal Representative, Executor, or Executrix: After the estate has met all necessary requirements of probate under Arkansas law, all of the probate assets of the estate have been distributed, the accountings have been settled, and all debts and claims have been paid, the estate will then file a petition to close the estate and discharge the personal representative, executor, or executrix. This is the final step of probate and this serves to close out the probate estate.
Located in Batesville, Melbourne, and Heber Springs, Arkansas, and serving all of Arkansas, Reeves Law Firm stands ready to handle any civil, estate, family law, guardianship, personal injury, probate, or any other litigation matters that may arise.
Reeves Law Firm primarily serves Independence County (Batesville), Jackson County (Newport), Sharp County (Ash Flat, Highland, Cherokee Village), Lawrence County (Walnut Ridge), Cleburne County (Heber Springs, Greers Ferry, Fairfield Bay), Izard County (Melbourne), Stone County (Mountain View), White County (Searcy), and Baxter County (Mountain Home).
Give us a call in Batesville, Arkansas, at (870) 793-0021
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