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Losing a loved one is never easy. There are so many things to do that you may not even know where to start. Let us help you.
What is Probate?
Probate is the legal process admitting the will. Then following the instructions in the Will under court supervision. Administration is when the Courts decide what will be done with our property after we pass. Since we cannot sign away our property anymore, the Court has to sign for us. The law has a way to transfer our property and pay off any valid debts we have left behind.
Intestate succession is the process when there is no will or trust (or an unfunded trust). And the court must supervise every little step. In this case, the State has laws that determine who gets what and how much. (This article will refer to both processes as probate for ease of reading).
Two Kinds of Probate
In Arkansas, there are two basic types of probate:
Small Estate Probate For Estates Under $100,000
If an estate qualifies, then a formal Court proceeding is avoided. This form of probate is simpler, quicker, and easier than the other proceeding.
- Everything we leave behind must be worth less than (or equal to ) $100,000. This includes bank accounts, savings, checking, cars, personal and most real estate.
- No debts can be left behind or must be paid off. I.e. Creditors are settled with.
- Medicaid has to be paid up and settled with.
- 45 days must have passed since death
- Real estate is risky – many title companies won’t issue title insurance for small estate affidavits
If you believe your loved one’s estate qualifies, then I will be happy to meet with you to discuss the situation. We can talk about it and decide on the steps that need to be taken.
Regular Probate For Estates Over $100,000
When an estate is worth even a penny over $100,000, the process is more complex. When you need a regular probate, please come in and talk to me as soon as possible. I can help you through the process and make it as easy as possible.
First, somebody has to petition (ask) the court to start probate. The Court will read the petition and appoint a personal representative to work the steps of probate. The personal representative (executor/executrix) will work closely with their attorney. Once approved, the court will issue Letters Testamentary (testate) or Letters of Administration (intestate). You should keep these in a safe place and only bring out the original if some place will not accept a copy. The Letters are proof that you are the authorized agent to make decisions on behalf of the estate.
The Complex Process
Next, you will work closely with your attorney to get through the complex process of probate. Many steps must be done in the correct order and at the right time. If you forget a step, it could invalidate, or open the process to challenge. The deadlines must be met. The waiting periods must be honored. The proper newspaper advertisements have to be made.
All known creditors of the estate must be notified. A newspaper advertisement will have to be ran to notify any other creditors. Fortunately, the creditors must file their claims before the deadline for creditors. This keeps probate from stretching out any further than it has to. Any and all claims that are proper and correct will be paid out before any property is distributed to the heirs.
All the heirs of the estate must be notified. If there is a Will, you know who to notify. If there is not a Will (intestate), then you must look to the laws to decide who to notify. A good probate attorney will know who and who not to notify in your case.
Appraisals and Valuations
The property must be appraised by a qualified appraiser. Tax returns, both income and estate tax, must be filed in a timely manner.
Along the way, you must keep the court informed and notified of the steps that have been taken and what the results are.
Finally, waivers can be filed to simplify the process somewhat. But the rest of the steps must be done.
How Long Will It Take?
Expect 6 months or more. (I have personally worked a probate that was open for 21 years. Not the fault of anyone in particular, but one attorney moved away and left the process hanging. The next attorney just didn’t work the case…). It takes so long because:
- Mandatory waiting periods are built in. For example, you have to wait for the creditors deadline.
- Sometimes probate is challenged and lawsuits result
- Courts are backed up with cases and you have to wait for hearings
Finally, everything has been done. Your attorney will file the final papers with the Court. The attorney will ask the court for a final distribution of the property. Then, finally, the attorney will ask for probate to be closed.
It’s Okay to Ask for Help
As you can see, Probate is a complex process and it’s easy to miss a step and cost weeks if not months of effort. It’s okay to seek out help from an experienced Probate Lawyer like Gary DeWitt to steer you in the right direction and avoid the potholes along the way.