Probate is the court process of estate administration by which property is devised by will or distributed through laws of intestacy to the decedent’s rightful heirs. The estate administration process varies from case to case, depending on such factors as the way the decedent held title to property and whether he left a will. When a property owner dies in Arkansas, any real estate not held in a survivorship tenancy, trust, or included in a beneficiary deed is subject to the probate process.
Administration of the estate takes place in the circuit court’s probate division. The venue for probate is set forth in the statutes in the following order: the decedent’s county of residence at time of death; the county where the highest amount of value of property the decedent owned in the state is located, if decedent did not reside in Arkansas; and finally, the county in which the decedent died, if he had no in-state property but died in-state (§ 28-40-102).
Once the will is proved (if a valid will exists) and the petition is approved in the circuit court, the court grants letters to a personal representative, the fiduciary in charge of the decedent’s estate. Though anyone may petition for probate, granting of letters is prioritized in the following order: the executor named in the will; the surviving spouse; a distributee entitled to a share of the decedent’s estate; and finally, any other qualified person (§ 28-48-101).
In some cases, the personal representative may be referred to as an executor (generally used when the decedent died with a will naming a personal representative) or an administrator (used when the decedent died intestate or when the will fails to name an executor). Regardless, the personal representative’s duties are the same, but the probate process may require more oversight from the circuit court, depending on the situation.
For decedents departing without a will (intestate), A.C.A. § 28-9-214 outlines the order of descent for intestate succession. Rightful heirs may inherit a decedent’s property not disposed of through a will by equal or unequal degrees, depending on their relation to the decedent and to one another. When real or personal property is transmitted by inheritance to two or more persons of the same class, they vest as tenants in common (§ 28-9-207).
The personal representative executes a deed to distribute, devise, or sell real property, as authorized by the decedent’s will or the court. The personal representative’s deed is a type of fiduciary deed, named for the capacity of the grantor rather than the warranty of title the grantee is receiving.Personal representative’s deeds in Arkansas “do not warrant title to a subsequent grantee, and any subsequent grantee may not assert or claim any warranty of title deriving from” them, though a grantor may customize the deed to include a title warranty through “express use of warranty language” (§15-12-605).
The deed includes information regarding the probate case, the decedent, and the personal representative’s power to sell, in addition to the typical requirements for conveyances of real property in Arkansas, which include appropriate grantee and vesting information, legal description of the property, derivation of title, and documentary stamp certificate. Before the deed can be recorded in the office of the county clerk, the personal representative and two witnesses must sign in the presence of a notary public.
The length and extent of the probate process is dependent on many factors, and can vary greatly from case to case. Consult a probate lawyer with questions about estate administration in Arkansas.