Clients often visit my office and request trusts to avoid probate. When pushed, very few can define probate and its requirements. Probate is a division of the circuit court where judges handle cases concerning wills (among other things).
When someone dies, the will does not automatically become effective. A will is only a piece of paper until a probate judge rules that the paper was the last will that the decedent (the person who died) wrote. The only property that will be part of the probate estate and pass by the will is the property owned only by the decedent with no beneficiary.
When there is property that must be transferred by will, the will must be admitted to probate court. Currently, the filing fee is $165.
After admittance, the executor (the person appointed to manage the estate) publishes a notice in a local newspaper and sends letters to known creditors. Creditors have six months from the date of the publication of the notice to file any claims against the estate. During the six months, the decedent’s assets are gathered, tax returns prepared, and plans are made for paying claims and making distributions.
In general, the probate process for a simple estate takes nine months to a year with costs of $300. The attorney’s fee can be based on the percentages as set out in the Arkansas laws, hourly, or some combination of the two. The percentages average around 3% of the assets that pass through probate and include real property.
Often people seek to avoid probate because of the fees and costs, the documents that are public, or the time the process takes. Whatever the reason to avoid it, the probate process is an option that is more reasonable in Arkansas than in many other states.