Only assets that pass through probate are affected by intestate succession laws. Many valuable assets don't go through probate, and therefore aren't affected by intestate succession laws. Here are some examples:
These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will. However, if you don’t have a will and none of the named beneficiaries are alive to take the property, then the property could end up being transferred according to intestate succession.
To learn more about these types of assets, go to the How to Avoid Probate section of Nolo.com or read about Avoiding Probate in Arkansas.
Under intestate succession, who gets what depends on whether or not you have living children, parents, or other close relatives when you die. Here’s a quick overview:
If you die with: |
here’s what happens: |
children or other descendants but no spouse | children and descendants inherit all intestate property |
spouse of at least three years, no children | spouse inherits everything |
spouse and children | spouse gets 1/3 of real property in the form of a life estate and 1/3 of the personal property children inherit all of the real property less the life estate and 2/3 of the personal property. |
spouse of less than three years, no children | spouse inherits 50% of intestate property parents, siblings, or other relatives inherit remaining 50% of intestate property |
parents but no children or spouse | parents inherit everything |
siblings but no children, spouse, or parents | siblings inherit everything |
(Ark. Code §§ 28-9-214; 28-11-301; 28-11-305 (2023).)
In Arkansas, whether or not you have a will when you die, your spouse will inherit property from you under a doctrine called “dower and curtesy.” Briefly, this is how it works:
If you have children or other descendants. Your spouse has the right to use, for life, 1/3 of your real estate. After you die, your children or other descendants inherit the property outright. In addition, your spouse inherits 1/3 of your personal property outright. (Ark. Code §§ 28-11-301; 28-11-305 (2023).)
If you don’t have children or other descendants. In most cases, your spouse freely inherits 1/2 of your real estate and 1/2 of your personal property. (Ark. Code § 28-11-307 (2023).)
In addition to the protections of dower and curtesy, if you are married and you die without a will, your spouse may receive some of your intestate property. (Remember, that’s only the property that would have passed under a will if you had made one, and not in any other way—for example by dower and curtesy or any of the other methods mentioned at the beginning of this article.) How much your spouse inherits depends on whether or not you have living children or other descendants, and on how long you were married.
If you have children or other descendants. If you have children, grandchildren, or great grandchildren, they will inherit all of your intestate property. (Ark. Code §§ 28-9-214 (2023).)
If you were married at least three years. If you were married for at least three years and you have no descendants, your spouse inherits all of your intestate property. (Ark. Code §§ 28-9-214 (2023).)
If you were married less than three years. If you were married for less than three years and you have no descendants, your spouse inherits 50% of your intestate property. The rest goes to other surviving relatives in the order established by Arkansas law. (Ark. Code §§ 28-9-214 (2023).)
These rules can quickly become complicated. Following is a simple example of how they might work.
Example: Paul and Joan were married for seven years, and Paul has two children from a previous marriage. Paul and Joan own a house in joint tenancy. Paul also owns a substantial amount of personal property, including several boats and some very valuable antiques. When Paul dies without a will, the house passes automatically to Joan. In addition, she inherits 1/3 of Paul’s personal property under the rules of dower and curtesy. The remaining 2/3 of Paul’s personal property passes to his kids.
If you have any concerns about this area of the law, see an experienced attorney for help.
If you die without a will in Arkansas, your children will receive an “intestate share” of your property. The size of each child’s share depends on how many children you have and whether or not you are married. (See the table above.)
For children to inherit from you under the laws of intestacy, the state of Arkansas must consider them your children, legally. For many families, this is not a confusing issue. But it’s not always clear. Here are some things to keep in mind.
This can be a tricky area of the law, so if you have questions about your relationship to your parent or child, get help from an experienced attorney.
If you die without a will and don’t have any family, your property will “escheat” into the state’s coffers. However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won’t go to the state if you leave a spouse, children, siblings, parents, grandparents, great grandparents, aunts or uncles, great uncles or aunts, nieces or nephews, cousins of any degree, or the children, parents, or siblings of a spouse who dies before you do. (Ark. Code §§ 28-9-214 and 28-9-215 (2023).)
Here are a few other things to know about Arkansas intestacy laws.
Here are a few more resources to explore:
You can make several different types of POAs in Arkansas. In particular, many estate plans include two POAs:
In most estate plans, these POAs are what are known as "durable" POAs, which means that they retain their effectiveness even after you're incapacitated. It's a good idea for most people to create these two documents, as they help plan for the unexpected.
To learn about other types of POAs, including non-durable (limited) and springing POAs, see What Is a Power of Attorney. Below, learn how to create a durable financial POA that is valid in Arkansas.
For your POA to be valid in Arkansas, it must meet these requirements.
The person making a power of attorney must be of sound mind. The exact contours of this mental capacity requirement are open to interpretation by Arkansas courts. If you're helping someone make a POA and you're unsure whether they have the required mental capacity, consult an estate planning attorney.
While Arkansas does not technically require you to get your POA notarized, notarization is very strongly recommended. Under Arkansas law, when you sign your POA in the presence of a notary public, your signature is presumed to be genuine—meaning your POA is more ironclad. In addition, many financial institutions will require a POA to be notarized (even if state law doesn't require it) before they accept it.
Arkansas offers a statutory form (a form drafted by the state legislature) with blanks that you can fill out to create your POA. However, statutory forms are often full of legalese, and it's not always apparent how to fill them out. For a more user-friendly experience, you can try a software program like WillMaker, which guides you through a series of questions to arrive at a POA that meets your specific aims and is valid in your state. You can also hire an Arkansas lawyer to create a POA for you. Many lawyers will include durable POAs as part of a more comprehensive estate plan alongside a will or living trust.
Whatever method you choose, the process of making the POA will include either granting your agent comprehensive powers or selecting (initialing), from a list, each specific power you want your agent to have. For example, you might choose to grant your agent the power to act for you with respect to these subject areas:
In Arkansas, your POA is durable (effective even after incapacitation) unless it explicitly states that it terminates when you become incapacitated.
As mentioned above, in Arkansas, you should have your POA notarized.
Once you have completed the POA, store the original in a safe place that your loved ones can easily access, and let them know where to find it. (It won't do much good locked away in a safe that no one can get into.) If you become incapacitated, your attorney-in-fact might need the original POA to act on your behalf.
You should also give a copy of the power of attorney to your agent so that your agent is familiar with the contents of the document and can use it when needed.
If you initialed "real property," giving your agent the power to conduct transactions with real estate, you should also file a copy of your POA in the land records office in the county where you own real estate or expect to deal with real estate in the future. In Arkansas, this office is part of the circuit clerk's office. If you put your POA on file, the circuit clerk's office will be able to recognize your agent's authority if your agent ever needs to sell, mortgage, or transfer real estate for you.
You can also give copies of your durable financial POA to banks or other institutions that your agent might need to deal with in the future. This step might eliminate some hassles for your agent if your agent ever needs to use the POA. Banks can sometimes be finicky about accepting POAs; see Can Banks Refuse a Power of Attorney? for more details.
Legally speaking, you can name any competent adult to serve as your agent. But you'll want to take into account certain practical considerations, such as the person's trustworthiness and geographical location. For more on choosing agents, see What Is a Power of Attorney.
Arkansas allows you to appoint co-agents who are authorized to act at the same time, but it's usually advisable to stick to just one agent to minimize potential conflicts. However, naming a "successor" agent—an alternate who will become your agent if your first choice is unavailable for any reason—is always a good idea, as it creates a backup plan.
Your POA is effective immediately unless it explicitly states that it takes effect at a future date.
It's possible to create a condition that must be satisfied before the POA becomes effective—such as a doctor declaring that you are incapacitated—but there are many reasons why this type of "springing" power of attorney is not usually advised.
Any power of attorney automatically ends at your death. A durable POA also ends if:
Additionally, in Arkansas, if your spouse is named as your agent in your POA, that designation automatically ends if you or your spouse files for divorce. To be clear, your ex-spouse's authority to act as your agent ends, but your POA is still intact. So if you named a successor agent, that person would become your agent instead.
For more on Arkansas planning issues, see our section on Arkansas Estate Planning.
]]>Here’s a quick checklist for making a will in Arkansas:
A will, also called a "last will and testament," can help you protect your family and your property. You can use a will to:
In Arkansas, if you die without a will, your property will be distributed according to state "intestacy" laws. Arkansas's intestacy law gives your property to your closest relatives, beginning with your spouse and children. If you have neither a spouse nor children, your grandchildren or your parents will get your property. This list continues with increasingly distant relatives, including siblings, grandparents, aunts and uncles, cousins, and your spouse's relatives. If the court exhausts this list to find that you have no living relatives by blood or marriage, the state will take your property.
No. You can make your own will in Arkansas, using Nolo's Quicken WillMaker & Trust. However, you may want to consult a lawyer in some situations. For example, if you think that your will might be contested or you have especially complicated goals, you should talk with an attorney. See Do I Need an Attorney to Make My Estate Plan?
To make a will in Arkansas, you must:
You must make your will on paper, not on audio, video, or any other digital file. (Although, see “Can I Make a Digital or Electronic Will?,” below.) Type and print your will using a computer or typewriter. Arkansas does permit handwritten wills (Ark. Code Ann. § 28-25-104), but they are usually not a good idea.
To finalize your will in Arkansas, you must:
Your witnesses should be “disinterested,” meaning that you have not given them anything in the will. If an “interested” witness signs the will, the witness could lose the gifts you left to them through the will. Ark. Code Ann. § 28-25-102.
Holographic (handwritten) wills in Arkansas do not require witnesses to see you sign your will. However, the entire body of the will and your signature must be in your handwriting, and three credible, disinterested witnesses must be able to establish that it is your handwriting and signature. Ark. Code Ann. § 28-25-104.
No, in Arkansas, you do not need to notarize your will to make it legal.
However, Arkansas allows you to make your will "self-proving" and you'll need to go to a notary if you want to do that. A self-proving will speeds up probate because the court can accept the will without contacting the witnesses who signed it.
To make your will self-proving, you and your witnesses will go to the notary and sign an affidavit that proves who you are and that each of you knew you were signing the will. Ark. Code Ann. § 28-25-106.
Yes. In Arkansas, you can use your will to name an executor who will ensure that the provisions in your will are carried out after your death. Nolo's Quicken WillMaker & Trust produces a letter to your executor that generally explains what the job requires. If you don't name an executor, the probate court will appoint someone to take on the job of winding up your estate.
In Arkansas, you may revoke or change your will at any time. You revoke your will by:
If you and your spouse divorce or your marriage is annulled, all provisions in favor of your spouse are automatically revoked. Ark. Code Ann. § 28-25-109.
If you need to make changes to your will, it’s best to revoke it and make a new one. However, if you have only very simple changes to make, you could add an amendment to your existing will -- this is called a codicil. In either case, you will need to finalize your changes with the same formalities you used to make your original will (see above).
In a handful of states, you can make a legal will digitally—that is, you can make the will, sign it, and have it witnessed without ever printing it out. Although such electronic wills are currently available in only a minority of states, many other states are considering making electronic wills legal. Arkansas currently doesn't allow e-wills, but that may change in the future.
You can find Arkansas’ laws about making wills here: Arkansas Code Annotated Title 28 Wills, Estates, and Fiduciary Relationships Subtitle 3 Wills.
]]>In all states, it is legal to have your loved one’s body at home after they die. Arkansas does not require you to involve a licensed funeral director in the final arrangements. For example, Arkansas Code § 20-18-601(b) allows “the funeral director or person acting as the funeral director” to file the death certificate. And Arkansas Code § 20-17-303 allows a coroner to deliver a body to the relatives or friends of the deceased person for burial.
Arkansas law determines who has the right to make final decisions about a person’s body and funeral services. This right and responsibility goes to the following people, in order:
(Arkansas Code § 20-17-102(d)(1).)
Making your own declaration form. To make a valid declaration appointing your representative, you need only write down what you want and sign your document in front of two adult witnesses or a notary. (Arkansas Code § 20-17-202(a)(3).)
Making a durable power of attorney for health care. One smart way to name your representative is to make a durable power of attorney for health care. In your document, you can give your health care agent explicit power to carry out your final arrangements. (You must make this authority clear in your durable power of attorney document; otherwise your agent’s decision-making power ends upon your death.) This saves the trouble of making separate documents for health care decisions and final wishes.
For information about making a declaration or durable power of attorney for health care, see Living Wills & Durable Powers of Attorney. With Quicken WillMaker & Trust, you can make a declaration and durable power of attorney that document your wishes and give your representative the power to carry out your final arrangements.
If you are in the military, you may name the person who will carry out your final wishes in the Record of Emergency Data provided by the Department of Defense.
Who pays for your funeral arrangements? You can either pay for your plans before you die, or you can set aside money for your survivors to use for this purpose. If you don’t do either of these things, and there’s not enough money in your estate to pay for funeral goods and services, your survivors must cover the costs.
Embalming is rarely required. Arkansas law requires a body to be embalmed or refrigerated if final disposition does not occur within 24 hours, unless cremation is planned. For cremation, the allowed waiting period is 48 hours. (Arkansas Health Department Regulations § 8.1.) Additionally, a body must be embalmed if it is to be transported by common carrier, such as an airplane or train. If embalming is not possible, the body may be shipped "only after enclosure in an air-tight container." (Arkansas Health Department Vital Records Regulations § 8.0(c).)
Refrigeration or dry ice can usually preserve a body for a short time. There are resources available to help you learn to prepare a body at home for burial or cremation. The website of the National Home Funeral Alliance is a good place to start.
If the person died of a contagious disease, you should consult a doctor.
If you will not be using a funeral director, you must complete and file the death certificate yourself. Arkansas law requires you to file the death certificate with the local or state vital records office within ten days of the death. (Arkansas Code § 20-18-601.)
The deceased person’s doctor, a medical examiner, or another approved medical provider must complete the medical certification portion of the death certificate within two business days. (Arkansas Code § 20-18-601.) The medical certification contains such information as the date, time, and cause of death.
Arkansas instituted an electronic system for registering deaths. You will go to the local registrar or health department to initiate the death certificate process. For help obtaining or filing a death certificate, contact the Arkansas Vital Records Office.
You will need certified copies of the death certificate to carry out other tasks after the death, such as arranging for the disposition of the body and transferring the deceased person’s property to inheritors. You may be able to file the death certificate with the local registrar and get certified copies on the same day. If not, you will have to make a return trip to pick up the copies. Be prepared to pay a small fee for each copy.
Unlike many other states, you do not need a special permit to move a body within the state of Arkansas. You do, however, need permission from a doctor, state medical examiner, or county coroner if you want to bring a body home from the place of death to prepare it for final disposition. (See Arkansas Code § 20-18-604.)
In Arkansas, a body must be buried in an established cemetery. (Arkansas Code § 20-17-902.) However, you may be permitted to establish a family graveyard if you live in a rural area. Contact the local health department and check local zoning laws before you proceed.
You must register a family graveyard with the county clerk before holding a burial. (See Arkansas Code § 20-17-901, requiring all cemeteries to be registered with the county.)
Unfortunately, in Arkansas, crematories may not enter into contracts with members of the public. (See Arkansas Funeral Board Rule IV(4).) This means you will have to go through a funeral director to arrange cremation.
For more information about cremation, including information on scattering ashes, see Burial & Cremation Laws in Arkansas.
Even the most staunch home funeral advocates know that learning to care for one’s own dead can be difficult, especially during a time of grief. If you need help, there are people available to coach you through this process. You can find local guides, consultants, and other resources by visiting the website of the National Home Funeral Alliance. The book Final Rights, by Joshua Slocum and Lisa Carlson, also offers extensive information on the subject.
For more information about final arrangements and documenting your final wishes in advance, see Nolo’s section on Getting Your Affairs in Order.
]]>How do I get a death certificate in Arkansas?
Who can order a death certificate in Arkansas?
Is embalming required in Arkansas?
In Arkansas, is a casket necessary for burial or cremation?
In Arkansas, do I have to buy a casket from the funeral home?
Where can bodies be buried in Arkansas?
Where can we store or scatter ashes after cremation in Arkansas?
Filing the death certificate. In Arkansas, a death must be registered with the local or state vital records office within 10 days. (Arkansas Code § 20-18-601.) Typically, the funeral home, mortuary, cremation organization, or other person in charge of the deceased person’s remains will prepare and file the death certificate.
The funeral director sends the death certificate to the physician who was caring for the deceased person for the illness or condition that caused the death. The physician completes the medical certification portion of the death certificate and returns it within three days. If the cause of death cannot be determined within three days after death, final disposition of the body cannot be made until the state medical examiner, attending physician, or county coroner authorizes it.
Getting copies of the death certificate. You may need to obtain copies of a death certificate for a number of reasons. You might simply want a copy for your personal records or, if you are in charge of wrapping up the deceased person’s affairs, you may require multiple, official copies to carry out your job. You will need to submit a certified copy of the death certificate each time you claim property or benefits that belonged to the deceased person, including life insurance proceeds, Social Security benefits, payable on death accounts, veterans benefits, and many others.
The easiest way to get copies of a death certificate is to ask the person or organization that files the certificate (often a funeral home) to order them for you at the time of the death. If you are the executor of the estate, you should ask for at least 10 certified copies.
If you need to order copies of a death certificate after the time of death has passed, contact the health department in the county where the death occurred or visit the Arkansas Department of Health online. From the ADH website, you can download a mail-in order form or order death certificates online.
In Arkansas, the following individuals or organizations are permitted to apply for a certified copy of a death certificate:
In addition, death certificates can be issued when needed for research activities that are approved by the state registrar, or upon receipt of a court order. For more details, read Arkansas Code § 20-18-305.
Embalming is a process in which blood is drained from the body and replaced with fluids that delay disintegration. Though it is still a common procedure, embalming is rarely necessary; refrigeration serves the same purpose.
In Arkansas, any body not buried within 48 hours of death must be either embalmed or refrigerated. Similarly, a body being cremated need not be embalmed or refrigerated for a 48-hour period after death unless a health problem dictates otherwise. (Arkansas Health Department Vital Records Regulations § 8.1.)
Additionally, a body must be embalmed if it is to be transported by common carrier, such as an airplane or train. (Arkansas Health Department Vital Records Regulations § 8.0(c).)
A casket is often the single greatest expense incurred after a death. The average cost of a casket is more than $2,000, and the price can run into the $10,000-$20,000 range for more elaborate designs and expensive materials. Whether due to the cost or for other reasons, some people prefer to forgo a casket altogether.
Burial. No law requires a casket for burial. However, you should check with the cemetery; it may have rules requiring a certain type of container.
Cremation. No law requires a casket for cremation. On the contrary, federal law requires a funeral home or crematory to inform you that you may use an alternative container, and to make such containers available to you. You can find Arkansas’s regulations for cremation containers in Rule I, Section 16 of the Arkansas Embalmers & Funeral Directors Rules.
No. Federal law requires funeral homes to accept caskets that consumers have purchased from other sources, such as an online retailer. You may also build your own casket, if you prefer.
In Arkansas, a body must be buried in an established cemetery. (Arkansas Code § 20-17-902.) The sexton may require that you obtain a burial permit first.
If you want to bury a body on private land, you may be permitted to establish a family graveyard. Contact the local health department and check town and county zoning laws before you proceed. You must register a family graveyard with the county clerk before holding a burial. (See Arkansas Code § 20-17-901, requiring all cemeteries to be registered with the county.)
In Arkansas, there are few limits on where you may keep or scatter ashes. Ashes may be stored in a crypt, niche, grave, or container at home. If you wish to scatter ashes, you have many options. Generally, use common sense and refrain from scattering ashes in places where they would be obvious to others.
Scattering ashes in an established scattering garden. Many cemeteries provide gardens for scattering ashes. If you’re interested, ask the cemetery for more information.
Scattering ashes on private land. You are allowed to scatter ashes on your own private property. In Arkansas, if you want to scatter ashes on someone else’s private land, you must get written permission from the landowner. You can find this requirement in Rule IV, Section 4(E)(3) of the Arkansas Embalmers & Funeral Directors Rules.
Scattering ashes on public land. You may wish to check both city and county regulations and zoning rules before scattering ashes on local public land, such as in a city park. However, many people simply proceed as they wish, letting their best judgment be their guide.
Scattering ashes on federal land. Officially, you should request permission before scattering ashes on federal land. As with local or state land, however, you will probably encounter no resistance if you conduct the scattering ceremony quietly and keep the ashes well away from trails, roads, facilities, developed areas, campgrounds, and waterways. You can find guidelines for scattering ashes on the websites for some national parks. For more information, begin your search at the website of the National Park Service.
Scattering ashes at sea. The federal Clean Water Act requires that cremated remains be scattered at least three nautical miles from land. If the container will not easily decompose, you must dispose of it separately. The EPA does not permit scattering at beaches or in wading pools by the sea. Finally, you must notify the EPA within 30 days of scattering ashes at sea.
The Clean Water Act also governs scattering in inland waters such as rivers or lakes. For inland water burial, you may be legally required to obtain a permit from the state agency that manages the waterway.
For more information, including the contact information for the regional EPA representative for Arkansas, see Burial at Sea on the EPA website.
Scattering ashes by air. While there are no state laws on the matter, federal aviation laws do prohibit dropping any objects that might cause harm to people or property. The U.S. government does not consider cremains to be hazardous material; all should be well so long as you remove the ashes from their container before scattering.
Important note. If you don't scatter the ashes within 60 days after cremation or provide instructions on how the ashes should be scattered, the person with the ashes can dispose of them in any way allowed by law. (See Rule IV, Section 4(E)(2) of the Arkansas Embalmers & Funeral Directors Rules.
To read the rules governing funeral services providers in Arkansas, visit the website of the Arkansas Board of Embalmers & Funeral Directors. To learn about the federal rule on funerals, which protects consumers in all states, visit the FTC's Funeral Rule page.
For more information about funeral laws in Arkansas, see Arkansas Home Funeral Laws.
To find out more about funerals and other final arrangements, see Nolo's section on Getting Your Affairs in Order.
Get It Together, by Melanie Cullen (Nolo), helps you gather and organize the essential details of your life for yourself and your family.
]]>Arkansas offers a procedure that allows inheritors to skip probate altogether. This procedure is called "small estate distribution" or "distribution without administration." To qualify, the estate (the property you own at death) must meet these requirements:
Ark. Code Ann. § 28-41-101. When calculating the total value of the property, you can exclude allowances for the spouse or children under Arkansas law, as well as the deceased person's "homestead," which is typically the primary residence, if owned by the deceased person.
If your estate meets the requirements listed above, all the inheritor or estate representative has to do is sign a simple document, called an affidavit, and file it with the local probate court. The Affidavit for Collection of Small Estate by Distributee (Form 23) contains:
After signing the document and having it notarized, the representative files the affidavit in the local probate court for a small fee. The clerk of the court certifies the affidavit. The representative can then presents the certified affidavit to the person or institution holding the property—for example, a bank where the deceased person had an account. The representative will usually also need to provide a certified copy of the death certificate. After that, the person or institution transfers the property.
If the deceased person owned real estate, there's an extra step: within 30 days after filing the affidavit, the representative must publish a notice of the death and the filing of the affidavit. The notice must say that any creditors must make claims against the estate within three months from the date of publishing the notice. Ark. Code Ann. § 28-41-101(b)(2).
For more help handling an estate in general, see The Executor's Guide, by Mary Randolph (Nolo). For an introduction to how you can plan your estate to help your survivors, try Estate Planning Basics, by Denis Clifford (Nolo).
For more on Arkansas estate planning issues, see our section on Arkansas Estate Planning.
]]>A "living" trust (also called an "inter vivos" trust) is simply a trust you create while you're alive. The beneficiaries you name in your living trust receive the trust property when you die. You could instead use a will, but wills must go through probate—the court process that oversees the transfer of your property to your beneficiaries.
Many people create a revocable living trust as part of their estate plan. These trusts can be modified or revoked at any time. Typically, you'll name yourself as the "trustee" of your trust. This means that while you are alive, you retain control of the trust and its property. In your trust document, you will also name a "successor trustee" to take over and manage the trust (distribute your property) after you die. (If you create a shared living trust, as is often done by spouses, then your successor trustee would assume control after both spouses have died.)
In contrast, irrevocable trusts cannot be revoked or modified after they are signed. Irrevocable trusts can be useful tools for specific goals, like reducing taxes, but they require giving up ownership and control of trust property.
When you set up a living trust to transfer your property to your loved ones after your death, you can potentially save them a lot of time, hassle, and probably money. Property left through a will (rather than a living trust) might be tied up for months or even years in probate court, and could involve significant court costs and lawyers' fees. By contrast, property left through a trust can be distributed to your beneficiaries almost immediately, and often without the need for an attorney.
Some states have fully adopted a model law called the Uniform Probate Code, which streamlines the probate process, but unfortunately Arkansas is not one of these states. However, Arkansas does offer simplified probate processes for "small" estates:
If your estate qualifies for these probate shortcuts, the probate process will be quick, straightforward, and relatively inexpensive, so you might not need to worry about making a living trust just to avoid probate.
Additionally, in Arkansas, you can transfer real property using a transfer-on-death deed; this can keep your home out of probate without using a living trust. But if you have other significant assets you'd like to keep out of probate, a living trust can be a good solution.
Yes, you'll still need a will. This might seem confusing—isn't the point of a living trust to avoid needing a will? Yes, it is, and your will might never be used. But you should still write one, for one or both of the following reasons:
If you don't have a will, any property that isn't transferred by your living trust or other method (such as joint tenancy) will go to your closest relatives as determined by Arkansas state law.
Probably not. Most people do not need to worry about federal estate taxes because the federal estate tax is levied only on estates worth close to $12 million. Arkansas does not have its own estate tax.
That said, if you have an estate worth close to $12 million (or you and your spouse or partner have a combined estate of close to $24 million), you might be able to use a more complicated trust (such as an AB trust) to reduce or avoid estate taxes.
To make a living trust in Arkansas, you:
You can use WillMaker & Trust to make a living trust using your computer. It has a simple interview format that allows you to complete the trust at your own pace, and it gives you lots of legal and practical help along the way. Based on your responses, the program produces a living trust document customized for you and your situation. With WillMaker & Trust, you can also make a will, powers of attorney, health care directives, and many other useful documents. Use it just for yourself or for your entire family.
For more on Arkansas estate planning issues, see Arkansas Estate Planning.
]]>In Arkansas, you can make a living trust to avoid probate for virtually any asset you own—real estate, bank accounts, vehicles, and so on. You need to create a trust document (it's similar to a will), naming someone to take over as trustee after your death (called a successor trustee). Then—and this is crucial—you must transfer ownership of your property to yourself as the trustee of the trust. Once all that's done, the property will be controlled by the terms of the trust. At your death, your successor trustee will be able to transfer it to the trust beneficiaries without probate court proceedings.
If you own property jointly with someone else, and this ownership includes the "right of survivorship," then the surviving owner automatically owns the property when the other owner dies. No probate will be necessary to transfer the property, although of course it will take some paperwork to show that title to the property is held solely by the surviving owner.
In Arkansas, these forms of joint ownership are available:
In Arkansas, you can add a "payable-on-death" (POD) designation to bank accounts such as savings accounts or certificates of deposit. You still control all the money in the account—your POD beneficiary has no rights to the money, and you can spend it all if you want. At your death, the beneficiary can claim the money directly from the bank, without probate court proceedings.
Arkansas lets you register stocks and bonds in transfer-on-death (TOD) form. People commonly hold brokerage accounts this way. If you register an account in TOD (also called beneficiary) form, the beneficiary you name will inherit the account automatically at your death. No probate court proceedings will be necessary; the beneficiary will deal directly with the brokerage company to transfer the account.
Arkansas allows you to leave real estate with transfer-on-death deeds. These deeds are also called beneficiary deeds. You sign and record the deed now, but it doesn't take effect until your death. You can revoke the deed or sell the property at any time; the beneficiary you name on the deed has no rights until your death. Ark. Code Ann. § 18-12-608.
Arkansas allows transfer-on-death registration of vehicles. If you register your vehicle this way, the beneficiary you name will automatically inherit the vehicle after your death. No probate court proceeding will be necessary. You can only name one beneficiary on each title with this method.
Even if you don't do any planning to avoid probate, your estate may qualify for Arkansas's simplified "small estate" probate procedures. For more details, see Probate Shortcuts in Arkansas. For more on avoiding probate, see 8 Ways to Avoid Probate, by Mary Randolph (Nolo).
]]>The catalyst for greater national attention to this issue was 29-year-old Brittany Maynard, a woman diagnosed with terminal brain cancer who moved from California to Oregon to end her life in 2014. Maynard chose Oregon because California had not yet passed its aid-in-dying law, and Oregon is one of just a few other states to allow terminally ill patients to legally end their lives.
Spurred by Maynard’s decision and the passage of aid-in-dying laws in other states since then, Arkansas lawmakers introduced a death with dignity bill for the first time in 2019. The bill, called the Compassionate Care End-of-Life Option Act (HB1536), died in the House Public Health Committee after legislators failed to bring it up for a vote. If it had passed, the law would have functioned much like Oregon’s Death With Dignity Act, allowing terminally ill patients who met certain requirements to request and use life-ending medication.
Before 2019 Arkansas had never officially considered adopting a death with dignity law. The state has, in fact, taken an opposing path, declaring it a crime for a health care professional to knowingly prescribe medication intended to cause death. (Ark. Code § 5-10-106 (2024).) (The proposed bill, however, would have made exceptions for physicians who prescribe aid-in-dying medication under the Compassionate Care End-of-Life Option Act. (See HB1536, Section 1(a)(2).))
Citizen groups are continuing to work to legalize aid in dying in Arkansas. If choice at the end of life is important to you, here are some things you can do:
“Death with dignity” and "medical aid in dying" are two of the most commonly accepted phrases describing the process by which a terminally ill person ingests prescribed medication to hasten death. You may also see the phrase “right to die” used in place of either of these terms. However, “right to die” is more accurately used in the context of directing one’s own medical care—that is, refusing life-sustaining treatment such as a respirator or feeding tubes when permanently unconscious or close to death. In Arkansas or any other state, you have a right to provide such directions or give any other health care instructions by completing an advance health care directive.
For information about appointing a health care agent and making known your wishes for medical care at the end of life, see the Living Wills & Medical Powers of Attorney section of Nolo.com.
To find out more about the history and current status of death with dignity laws in the United States, visit the website of the Death With Dignity National Center.
Updated February 29, 2024
Every state has some rules about who may serve as the executor of an estate that goes through probate. Here are the requirements in Arkansas.
Your executor must be:
Arkansas lowered the required age from 21 to 18 in 2016.
Many states prohibit people who have felony convictions from serving as executor. In Arkansas, your executor cannot be a “convicted and unpardoned felon” under any federal or state law.
(Ark. Code Ann. § 28-48-101.)
In addition to the restrictions above, an Arkansas probate court will reject a potential executor found to be unsuitable. It’s highly unlikely, but if a question arises about the qualifications of the person you’ve named as your executor, the court will hold a hearing in front of all “interested persons” -- such as your spouse, heirs, creditors, and other potential executors. At the hearing, a judge will determine who is best suited to serve as executor and terminate any appointment found to be improper.
Furthermore, while you can name a corporation as your executor, it must be authorized to act as fiduciary in Arkansas. That said, think carefully before appointing a bank or trust company to represent your estate. It’s almost always best to name an individual; consider an institution only if you don’t know anyone you trust enough to serve or your estate is very large and complex.
(Ark. Code Ann. § § 28-48-101, 28-48-105.)
For practical reasons, it’s smart to name an executor who lives near you. Your executor may have to handle day-to-day matters for weeks, months, or sometimes longer. If you must appoint an executor who lives far away, you should know the requirements your state imposes on out-of-state representatives.
In Arkansas, a nonresident executor must appoint someone who lives in the county where the estate is being probated to act as an agent. Your executor’s in-state agent will accept any legal papers related to your estate.
(Ark. Code Ann. § 28-48-101.)
If you want to know more about an executor’s duties and responsibilities in Arkansas, the Arkansas Bar Association offers a Handbook for Personal Representatives.
For more information about choosing your executor and making your will, see the Wills section of Nolo.com.
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