Creating a last will and testament is crucial in planning the distribution of your estate (assets including real and personal property) after your death. Arkansas wills give the testator, the person writing the will, the opportunity to ensure that a spouse, children, other loved ones, and even pets are taken care of after his death. You may also choose to leave property or make other gifts to charitable organizations through your Arkansas will.
In contrast to a last will and testament, a living will dictates instructions to be followed should you become incapacitated and incapable of making decisions regarding your health and medical care. A living will, one of two types of advance directives for health care under Arkansas law, would take effect during a person’s life if necessary, while a last will and testament does not take effect until after the testator’s death.
Do you need a last will and testament?
Although a last will and testament are not legally required, without a will, state laws (called laws of intestacy) will determine the distribution of the deceased’s assets. The outcome may not coincide with the decedent's (the person who passed away) wishes, however, which means it is generally advisable to create a will.
One of the greatest benefits of having a last will and testament is that it allows the testator to choose the personal representative of the estate, the person who will be responsible for carrying out the wishes contained in the will; in the absence of a will, the courts would make the decision for you.
A testator can use a will for various purposes, but the most important is to express how assets such as homes, vehicles, business holdings, jewelry, and other personal property, should be divided upon the testator’s death. An Arkansas last will and testament can also allow you to name someone as the legal guardian of your children.
Moreover, in addition to testamentary trusts (trusts that provide a benefit for people), Arkansas law specifically allows for the creation of a trust for the care of animals alive during the settlor’s lifetime (“pet trust”). Such a trust terminates upon the death of the last animal covered by the trust. An Arkansas will gives you the option of caring for your animals after your death in this manner.
Before the terms of a will can be accepted, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person. Once the will is proven valid in probate court, the executor can then pay off any debts and taxes owed by the estate and then distribute the testator’s property according to the will.
In Arkansas, if an estate’s value is less than $50,000 (excluding the homestead and other allowances to a surviving spouse and children) and the estate has no claims made against it, any beneficiary of an Arkansas will can petition the court to forego probate proceedings.
Otherwise, a will’s executor must submit a petition to the court to admit the will to probate after which a notice of the proceedings is published in the newspaper. Anyone with claims against the estate must notify the court within three months (within six months for personal injury claims).
Intestacy: Dying without a will
Someone who dies without a will is called “intestate,” which invokes the laws of intestacy. In Arkansas in the absence of a will, a surviving spouse is entitled to the entire estate if there are no children or other descendants and the couple was married for at least three years. If married for less than three years and there are no children, the surviving spouse is entitled to half of the estate, and the decedent’s parents, siblings, or other relatives inherit the other half.
The spouse’s share in Arkansas is based on a doctrine called “dower and curtesy,” which provides that when there are also children or other descendants, the spouse has the right to use for life one third of the estate and inherits one third of the decedent’s property outright.
As you can see, if you would like to have control over the distribution of your assets and avoid the application of intestacy laws, it is crucial that you have a valid Arkansas will.
Exceptions to ability to distribute property
Not all property you own can be distributed through a Arkansas will. For example, property that is owned in joint tenancy with the right of survivorship cannot be devised by will. The beneficiary of a life insurance policy may also not be changed through a will.
Note that even if a spouse is excluded from an Arkansas will, a surviving spouse is entitled to a portion of a decedent’s estate.
Form a last will in Arkansas
The basic requirements for an Arkansas last will and testament include the following:
- Age: The testator must be at least 18 years old.
- Capacity: The testator must be of sound mind.
- Signature: The will must be signed or signed by mark by the testator (“his or her name being written near it and witnessed by a person who writes his or her name as a witness to the signature”) or by someone else at the direction and in the presence of the testator.
- Witnesses: At least two witnesses must sign a Arkansas last will and testament in order for it to be valid. The witnesses must sign after the testator has done so as described above and acknowledged his or her signature on the document.
- Writing: Arkansas wills must be written to be valid.
- Beneficiaries: An Arkansas will may dispose of property to any beneficiary.
Other recognized last wills in Arkansas
In addition to written wills, Arkansas recognizes holographic wills, whether or not they are witnessed so long as they are entirely in the handwriting of and signed by the testator.
Changing a Arkansas last will and testament
An Arkansas last will and testament may be changed at any time before the testator’s death through a new will or a codicil, which is an addition or amendment that must be executed with the same formalities as a will in order for it to be valid.
Revoking a Arkansas last will and testament
An Arkansas will may be revoked at any time by the testator in the following ways:
(1) By a subsequent will which revokes the prior will or part expressly or by inconsistency; or
(2) By being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in the testator's presence and by the testator's direction.
Note that in Arkansas, if the testator gets divorced or if his or her marriage is annulled, the provisions in the will in favor of the ex-spouse are automatically revoked.
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