Probate in Arkansas

Arkansas Army National Guard

Office of Legal Assistance

Building 7300, Camp Joseph T. Robinson

North Little Rock, Arkansas

Phone: 501-212-5040

Legal Assistance Website: https://arkansas.nationalguard.mil/Home/JAG-Legal/

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Probate in Arkansas

Probate is the legal process that takes place after someone dies. Whether dictated by

a will or in cases where there is no will, the process is governed by state law.

Terms to know:

A. Intestate – to die without a will.

B. Testator – decedent who writes/executes a will.

C. Power of appointment – the holder, can appoint someone to benefit from a

trust.

D. Executor – the person who directs the operation of an estate if there is a will.

E. Administrator – the person who directs the operation of an estate if there is no

will.

F. Devise – a share of the inheritance.

G. Estate – all the money and property owned by a person at death.

H. Decedent – the person who died.

The General Process (if there is a will)

Step One – The Petition

The process starts with a petition to the court in the county where the decedent lived

at the time of death. The petition, also known as an application, is filed with the will

and the death certificate. Every petition must contain certain information, including

the date of death, names of surviving family members, and names of beneficiaries

named in the will. (Often courts have pre-made forms that can be filled out). The

petition also requests that the court admit the will and appoint an executor. Usually

the will specifies who the decedent wants the executor to be.

*It is common for the person who submits the petition to request to be the executor.*

Step Two – The (First) Hearing

The court will schedule a hearing, to give all interested parties a chance to object to

the appointment of the executor. The person seeking to be the executor MUST send

formal legal notice of the hearing to beneficiaries named in the will and to heirs under

the law (those who would inherit if there is no will) BEFORE the hearing.

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The person requesting to be the executor MUST also send notices to known creditors,

and publish a legal notice in a local newspaper to alert unknown creditors.

Step Three – The Accounting

After the executor is appointed, he or she must take a full accounting of all of the

decedent’s probate property; including real property, stocks, bonds, business

interests, etc.

This is also the step where creditors not identified and notified in step two MUST

have written notice sent to them. Any creditor that wants to make a claim against

the probate estate must do so within a limited amount of time.

Step Four – The Will’s Validity

A will submitted to the court must be proven as valid. Typically, statements of the

witnesses are enough if the statements are notarized, sworn, or in court testimony.

Step Five – Managing the Estate and Paying Debts

While the probate case is pending it is common for the executor to gather assets and

open a bank account to pay creditors. Probate cases must stay open for several

months to give creditors a chance to come forward.

The executor determines which creditors’ claims are legitimate and pays those and

other final bills from the estate, including final tax return(s), funeral expenses, and

estate expenses. Occasionally, the administrator needs court approval to pay

creditors.

Step Six – Property to Beneficiaries

Typically, the executor petitions the court for authority to transfer the remaining

assets to the beneficiaries as directed in the will once all claims and disputes are

resolved. Beneficiaries may petition the court for an accounting of how the assets

were managed by the executor during the probate process.

Once the petition to transfer is granted, the executor may draw up new deeds and

transfer the property to the appropriate beneficiaries. Then the executor petitions to

close the estate. Once this is done, the executor is released from his or her duties as

executor.

August 31, 2022

The General Process (if there is no will)

Step One – The Petition

The process starts with a petition to the court in the county where the decedent lived

at the time of death. The petition, also known as an application, asks the court to

appoint an administrator. This is usually done by the person who wants to be the

administrator.

Generally, notice of the court hearing regarding the petition MUST be provided to all

the decedent's heirs, or people who would inherit under the law. If an heir objects to

the petition, he or she can do so in court. Also, a notice of the hearing is typically

published in a local newspaper. This is to notify others, such as unknown creditors of

the decedent, of the beginning of the proceedings.

Step Two – The (First) Hearing

The court will schedule a hearing to give all interested parties a chance to object to

the appointment of the administrator. Before the hearing, the person seeking to be

the administrator sends formal legal notice to known creditors of the decedent.

Step Three – The Accounting

After the administrator is appointed, he or she must take a full accounting of all of

the decedent’s probate property; including real property, stocks, bonds, business

interests, etc.

This is also the step where creditors not identified and notified in step two MUST

have written notice sent to them. Any creditor that wants to make a claim against

the probate estate must do so within a limited amount of time.

Step Four – Managing the Estate and Paying Debts

It is common for the administrator to gather assets and open a bank account to pay

creditors while the probate case is pending. Probate cases stay open for several

months to give creditors a chance to come forward.

The administrator determines which creditors’ claims are legitimate and pays those

and other final bills from the estate, including final tax return(s), funeral expenses,

and estate expenses. Occasionally, the administrator needs court approval to pay

creditors.

Step Five – Property to Heirs

Typically, the administrator petitions the court for authority to transfer the

remaining assets to the heirs as directed by state intestacy laws after all claims and

disputes are resolved. Heirs may petition the court for an accounting of how the assets

were managed by the administrator during the probate process.

August 31, 2022

Once the petition to transfer is granted, the administrator may draw up new deeds

and transfer the property to the appropriate heirs. Then the administrator petitions

to close the estate. Once this is done, the administrator is released from his or her

duties as administrator.

FAQ

Property that is owned that is not the residence is still a part of the overall estate. If

there is no will, then the non-residential property is distributed through the

allocations dictated by state law.

Generally, a final tax return for the deceased needs to be filed for the fiscal year in

which he or she died. This is usually handled by the administrator or the executor.

If the deceased spouse was in debt and the surviving spouse is also listed on the

accounts, the surviving spouse will still be liable for the debts accrued by the deceased

spouse. If the deceased spouse has debt in only his or her name, then there will be

certain property that is exempt from the creditor's ability to claim. This does not

always apply, and it is difficult to predict the exact amount exempt from creditors

without an attorney.

The executor or the administrator is responsible for notifying creditors. A creditor

has a specific amount of time to file a claim against the estate.

If there is a will and the spouse is unhappy with the amount he or she is allotted, an

action to “take against” the will may be filed. This means that he or she can have the

statutorily allotted amount that a spouse receives rather than the amount listed in

the will.

Things that are not a part of the probate estate include property owned jointly by the

spouses, beneficiary deeds, transfer upon death accounts, pensions, life insurance

benefits, etc.

In Arkansas, boats and other vehicles are not considered part of the property that

passes through probate.

This handout is distributed by the Arkansas Office of the Staff Judge Advocate, Office of Legal

Assistance as a preventive law service. This document and other helpful information on similar

personal legal affairs topics can be found on the office’s website located at

https://arkansas.nationalguard.mil/Home/JAG-Legal/

For more information on this topic or to consult with a legal assistance attorney contact the

Arkansas National Guard Office of Legal Assistance at 501-212-5040 to establish eligibility and

appointment times.