4.04.25 Decedent's Estates

Does your state use terminology different from that provided in 4:04.1 of the Underwriting Manual? If so, please identify and define such terms. Provide statutory citations.

No information is available at this time.

Is there a statutory time limit for (a) probating a decedent's will, or (b) opening administration of an intestate's estate? Is so, specify for both situations. Provide statutory citations.

Arkansas Code Annotated § 28-40-103 provides:

  • No will shall be admitted to probate and no administration shall be granted unless application is made to the court for admission to probate within five (5) years from the death of the decedent, subject only to the exceptions stated in this section.

  • This section shall not affect the availability of appropriate equitable relief against a person who has fraudulently concealed or participated in the concealment of a will.

  • Insofar only as it relates to real property in Arkansas, or any interest in real property, the will of a nonresident which has been admitted to probate in another appropriate jurisdiction may be admitted to probate in this state without regard to the time limit imposed by this section.

Does the disposition of property under the laws of intestacy depend on any of the following classifications of property or rights in property: Community, separate, tenancy by the entirety, dower, curtesy, etc.? If so, summarize. Provide statutory citations.

The disposition of property under the laws of intestacy regarding "separate" property depends on the nature of the property. Property acquired during a marriage is presumed to be owned in tenancy by the entirety unless otherwise designated. Property acquired prior to a marriage or inherited does not become marital property and are distributed according to the laws of intestacy on the owner's death. The wife of the decedent has a dower interest in the decedent's real property (a surviving husband's interest is a curtesy interest) if the decedent owned the property separately from the spouse. A. C. A. § 28-11-301. The dower (or curtesy) interest is extinguished if the property was disposed of by the decedent more than seven year before the decedent's death. A. C. A. § 28-11-203.

Does your state recognize joint tenancies? If so, describe the procedure necessary to pass title held in joint tenancy upon the death of a joint tenant. Provide statutory citations.

Arkansas law recognizes two forms of joint tenancies: Joint tenancies with rights of survivorship and tenants in common. When two or more persons are granted property, the interest conveyed is considered a tenancy in common unless expressly declared to be a joint tenancy with rights of survivorship. A. C. A. § 18-12-603. A decedent's property owned in tenancy in common is distributed according to the laws of intestacy. The survivor(s) of a decedent owning property in joint tenancy with rights of survivorship become vested with title by operation of law and the decedent's interest extinguishes upon his/her death and does not become part of his estate. A. C. A. § 28-9-207.

Does your state provide for any special benefits to a surviving spouse or family that allow them to take property contrary to will provisions? Provide statutory citations.

Yes: Allowances to Family, A. C. A. § 28-39-101 et seq.; Homestead Rights, A. C. A. § 28-39-201 et seq.; Assignment of Dower and Curtesy, A. C. A. § 28-39-301 et seq.; and Taking Against the Will, A. C. A. 28-39-401 et seq.

Summarize the steps required for a testate administration. Provide statutory citations.

The procedures are codified at A. C. A. § 28-40-101 et seq. In general, a petition if filed in the probate court along with the decedent's will. All heirs and devisees are served notice of the proceedings. A notice to creditors is published in a newspaper. The appointed personal representative files an inventory, yearly accountings, and a final accounting unless all devisees waive these requirements (not uncommon). If needed, the personal representative files petitions to sell property, pay creditors, make partial distributions, or any other necessary actions. After the time for filing claims has passed and all other matters are concluded by the personal representative, he files a petition for final distribution and closes the estate.

Summarize the steps required for an intestate administrations. Provide statutory citations.

The procedures for an intestate administration are the same as those for a testate administration as summarized above. The only difference is that there is no will to file with the original petition.

Is there a procedure or documentation customarily accepted by the bar to indicate heirship which is not based on a statute or cases? (e.g. Affidavits of Heirship) If so, describe the procedure and furnish a sample of any forms.

Neither the Arkansas Form Book nor the Arkansas Probate System contain customarily accepted documents that would indicate heirship. These form books contain most forms of documentation that the bar accepts for any purpose.

Are there any short or abbreviated probate procedures provided for by statute? If so, summarize. Provide statutory citations.

Yes, A.C.A. § 28-41-101 provides for the collection of small estates by distributees (estates with value not exceeding $50,000.00).

Are there any other probate or alternative probate procedures available in your state that haven't been described? If so, summarize. Provide statutory citations.

There are no other probate or alternative probate procedures available in Arkansas that have not been described. "Living trusts" have become a popular form of avoiding probate but the property transferred into a trust is no longer owned by the settlor and therefore the probate laws do not apply.

Do your state provide for an "inheritance" tax? If so, is it based on (a) an heir's share of the estate or (b) is it an estate tax on the total value of the estate, or (c) on another basis? When must the inheritance tax return be filed? Provide statutory citations.

A. C. A. § 26-51-406 provides that a beneficiary of an estate must include the share of income or loss of the estate received by him during the income year on that year's regular state income tax return.

Does your state provide for an inheritance tax lien? If so, summarize, e.g., what are the requirements for (a) attachment, (b) perfection; and (c) enforcement of the inheritance tax lien. Is there a statute of limitations for the inheritance tax lien? If so, specify.

There are no specific inheritance tax lien provisions in the Arkansas statutes.

Summarize the steps of the procedure for the sale of real property during the pendency of an intestate administration. Provide statutory citations.

The procedures for the sale of real property of an estate are located at A. C. A. § 28-51-301 et seq. Basically, a petition for authority to sell is filed, the property is appraised by three disinterested persons, and an order authorizing the sale for the appraised value is presented to the probate court for approval. A report of the sale is filed with the court and an order confirming the sale is presented to the court for approval.

Can a personal representative for a testate administration sell real property of the estate without obtaining a court order? If so, please identify any requirements? Any limitations? Provide statutory citations.

Yes, A. C. A. § 28-51-102 allows the personal representative for a testate administration to sell real property without obtaining a court order when the power to do so is given to him/her under the terms of a will. There are no other requirements or limitations.

When, if ever, must a personal representative of a testate administration obtain a court order to sell real property of the estate? Summarize the steps of such procedure. Provide statutory citations.

The personal representative of a testate administration must obtain a court order to sell real property of the estate unless the power to sell without court approval has been granted as described above. A. C. A. § 28-51-103. The procedure is the same as described above for an intestate administration.

Does your state provide for the probate of foreign wills (wills of testators not domiciled in your state)? Is so, summarize the provisions and procedures. Provide statutory citations.

The ancillary administration procedures are found at A. C. A. §§ 28-42-101 through 28-41-111. The procedures are basically the same as for any other administration except that an authenticated copy of a foreign personal representative's domiciliary letters must accompany the petition if he/she is the petitioner. Any interested person may open an administration in Arkansas in the county "wherein is situated the greater part, in value, of the property of the decedent located in this State." A.C.A. § 28-40-102(a)(2). The administration would then be the same as for other estates probated in Arkansas.