Does a Will Have to Be Recorded in Arkansas?
A will plays a vital role in the distribution of assets and property after someone passes. Many wonder whether a will needs to be recorded to be valid. At Bond Law Office, our experienced attorney can walk you through the legal obligations surrounding wills in Arkansas and explain the requirements for recording them.
Located in Fort Smith and Fayetteville, Arkansas, we strive to assist families in understanding and managing their estates. Reach out to use today to schedule a consultation.
Wills Don’t Have to Be Recorded While the Testator Is Alive
In Arkansas, a will doesn’t need to be recorded while the testator—the person who created the will—is still alive. The will becomes important after the person’s death when it needs to be filed with the appropriate probate court.
This filing is necessary to begin the probate process, which confirms the proper distribution of the deceased’s assets according to their wishes.
While some people may choose to keep their will in a safe or with an estate planning attorney during their lifetime, the law in Arkansas doesn’t require the will to be made public or filed before death. The probate court becomes involved only after the individual has passed away, at which point the executor of the estate must take action to file the will.
The Role of Probate in Arkansas
Probate is the legal process through which a will is validated and the deceased’s estate is settled. In Arkansas, this process involves several steps. First, the court reviews the will to confirm that it complies with state laws.
Once the court determines that the will is valid, the appointed executor or personal representative can begin distributing assets, paying debts, and managing any legal matters related to the estate.
The probate court in Arkansas oversees the entire process, confirming that the executor is fulfilling their duties and that the assets are being handled properly. It’s important to understand that while the probate process can take several months or even longer, the recording of the will with the court is a key step in getting things started.
Steps for Filing a Will in Arkansas
After a person passes away, the will must be filed with the probate court in the county where the deceased lived. This is the first step in the probate process. Filing the will allows the court to begin its review and to confirm whether the document meets the legal requirements set forth by Arkansas law.
The person responsible for filing the will is usually the executor named in the document. If there’s no named executor, the court may appoint someone to take on this role. Once the will is filed, the court reviews it to confirm that it’s the most recent version, properly signed and witnessed according to Arkansas law. The basic steps for filing a will in Arkansas include:
Locate the Will: After the testator's death, the executor or family members should locate the original copy of the will. This document is required to file probate with the court. Copies are generally not acceptable unless the original has been lost, and even then, additional legal steps may be required.
File with Probate Court: The executor must file the will with the probate court in the county where the deceased resided. Filing the will is what officially starts the probate process. Without this step, the estate can’t be distributed as outlined in the will.
Begin Probate Proceedings: Once the will is filed, the court will open probate proceedings. The executor will then follow the legal process of managing and distributing the estate, paying debts, and addressing any disputes that may arise.
Does Every Will Go Through Probate?
While most wills do need to go through probate, there are exceptions. Arkansas law provides for a simplified process in certain situations, which reduces the time and cost of handling a small estate.
According to Arkansas Law Help, if the estate is valued at less than $100,000 and there are no debts, the executor may be able to avoid full probate by filing a small estate affidavit.
This is a quicker way to distribute assets without going through the full probate process. However, if there are significant assets, disputes over the will, or debts that need to be paid, probate is usually required. Even in simplified cases, the will still needs to be filed with the probate court to confirm the legal wishes of the deceased.
What Happens If a Will Isn’t Filed?
Failing to file a will after the testator’s death can lead to serious legal consequences. Arkansas law requires the will to be filed within a reasonable amount of time after the person has passed away. If the will isn’t filed, the executor could face penalties, and the estate may not be distributed according to the deceased’s wishes.
Additionally, if a will isn’t filed, the estate could be treated as if the person died without a will (intestate). In that case, Arkansas’s intestacy laws will determine how the estate is divided, and these laws may not align with what the deceased intended.
Intestacy rules distribute assets to surviving family members based on a strict hierarchy, starting with the spouse and children. If no will is filed, these rules override the testator’s desires.
Storing a Will Safely
Even though a will doesn’t need to be recorded while the testator is alive, it’s crucial to store it safely. Many people choose to keep their will in a safe deposit box, a fireproof safe at home, or with an experienced estate planning attorney. The key is to make sure that trusted family members or the executor know where to find the will when the time comes.
If a will is lost or destroyed, it could cause complications after the person’s death. While a copy might be accepted in some cases, proving its authenticity could be challenging and may delay probate. Properly storing the original will and informing someone of its location can prevent these issues.
Key Requirements for a Valid Will in Arkansas
To be valid under Arkansas law, a will must meet certain legal requirements. Failing to meet these standards can result in the will being contested or deemed invalid by the probate court. Here are the basic requirements:
The Testator Must Be 18 or Older: The person creating the will (the testator) must be at least 18 years old. This means that the testator is legally able to make sound decisions about their estate.
Sound Mind: The testator must be of sound mind when creating the will. This means they must understand what they’re doing, the extent of their assets, and who will inherit those assets.
Proper Signing and Witnessing: The will must be signed by the testator and witnessed by at least two people. These witnesses must also sign the document in the presence of the testator, and they should be individuals who don’t stand to benefit from the will.
Making sure these requirements are met is critical for the will to be accepted by the probate court after the testator’s death.
Contested Wills in Arkansas
Even when a will is properly filed and meets all legal requirements, it may still be contested by someone who believes the document doesn’t reflect the true intentions of the testator. Common reasons for contesting a will include allegations of fraud, forgery, or undue influence.
In Arkansas, anyone with a valid legal interest in the estate, such as an heir or beneficiary, can contest a will. If a will is contested, the probate court will review the evidence and make a determination. Contesting a will can delay the probate process, so it’s important to work with legal counsel if you believe there are valid grounds for a challenge.
Call Us If You Have Estate-Related Needs
At our office, we help families in Arkansas manage the probate process and understand the legal obligations surrounding wills. With locations in Fayetteville, Arkansas and Fort Smith, Arkansas, we serve clients from the Arkansas River Valley, Harrison, Eureka Springs, Clarksville, Waldron, Mena, and Van Buren. Call us at Bond Law Office with questions about probate or estate planning.