What Does a Will Do? (and do I need one?)
Most everyone has heard of a Last Will and Testament. When thinking of a Will, most of us probably have mental images of aged paper with fancy writing on it being read out loud by a stuffy looking lawyer in front of a crowd of bereaved (and usually greedy) loved ones. Hollywood dramatization aside, a Will does serve an important purpose. A Last Will and Testament lets your loved ones, and the World, know your final wishes, including how you want your assets disposed of after you die. Your Will can also name the executor of your estate and set out funeral and burial wishes. Further, if you have minor children or a disabled adult child, you can appoint a guardian or successor guardian for them in your Will.
This article covers what a Will is, what it is not, and what happens to your property when you die with or without a Will. This article will focus on Arkansas law. It is not intended as legal advice, but general information. It is always best to consult with an attorney in the state where you live for legal advice, as each state’s laws differ, and a qualified attorney can answer your specific legal questions.
There is a common misconception that if you have a Will your family will avoid having to go to probate court to transfer your property after you die. That is not the case in Arkansas (or likely any other state). A Will by itself does not prevent the need to probate your probate estate. However, there are ways to avoid probate, including setting up a trust, owning property jointly and/or having pay on death (POD) and beneficiary designations on real estate, financial accounts, and life insurance policies. For a more in depth discussion on avoiding probate, check out our article Avoiding Probate Court in Arkansas .
There is a further misconception, again thanks to Hollywood, that a Will controls how all of your property is disposed of upon your death. However, a Will only directs how your probate estate is to be distributed. Your probate estate is only that property and the assets that you own individually and that does not have a pay on death or beneficiary designation attached to it. For instance, if you have life insurance and your daughter is the named beneficiary of your insurance policy, she will get your life insurance when you die without having to be named in your Will and without the need to go to probate for the life insurance benefits.
So, what happens if you don’t have a Will? If you die without having first made a Last Will and Testament any property in your probate estate will go to your heirs at law and surviving spouse, per the laws of the state in which you lived or where your property is located. In Arkansas, your closest heirs are your children and they will inherit your property equally (i.e. if you have two children, they will each inherit 50% of your estate). If you die leaving a surviving spouse, your widow or widower is entitled to ⅓ of the personal property (any assets other than real estate) in your probate estate and also entitled to a ⅓ life estate in real estate and to a homestead interest in the home where the two of you lived.
If you are interested in drafting a Will or if you would like to discuss probate or estate planning further, feel free to contact our offices for a free phone consultation. We are conveniently located in Fayetteville and Little Rock and are happy to assist Arkansans across the state.