Probate is the court process of estate administration by\nwhich property is devised by will or distributed through laws of intestacy to\nthe decedent\u2019s rightful heirs. The estate administration process varies from\ncase to case, depending on such factors as the way the decedent held title to\nproperty and whether he left a will. When a property owner dies in Arkansas,\nany real estate not held in a survivorship tenancy, trust, or included in a\nbeneficiary deed is subject to the probate process. <\/p>\n\n\n\n\n\n\n\n
Administration of the estate takes place in the circuit court\u2019s\nprobate division. The venue for probate is set forth in the statutes in the\nfollowing order: the decedent\u2019s county of residence at time of death; the\ncounty where the highest amount of value of property the decedent owned in the\nstate is located, if decedent did not reside in Arkansas; and finally, the\ncounty in which the decedent died, if he had no in-state property but died in-state\n(\u00a7 28-40-102).<\/p>\n\n\n\n
Once the will is proved (if a valid will exists) and the petition\nis approved in the circuit court, the court grants letters to a personal\nrepresentative, the fiduciary in charge of the decedent\u2019s estate. Though anyone\nmay petition for probate, granting of letters is prioritized in the following\norder: the executor named in the will; the surviving spouse; a distributee\nentitled to a share of the decedent\u2019s estate; and finally, any other qualified\nperson (\u00a7 28-48-101).<\/p>\n\n\n\n
In some cases, the personal representative may be referred\nto as an executor (generally used when the decedent died with a will naming a\npersonal representative) or an administrator (used when the decedent died\nintestate or when the will fails to name an executor). Regardless, the personal\nrepresentative\u2019s duties are the same, but the probate process may require more\noversight from the circuit court, depending on the situation.<\/p>\n\n\n\n
For decedents departing without a will (intestate), A.C.A. \u00a7\n28-9-214 outlines the order of descent for intestate succession. Rightful heirs\nmay inherit a decedent\u2019s property not disposed of through a will by equal or\nunequal degrees, depending on their relation to the decedent and to one\nanother. When real or personal property is transmitted by inheritance to two or\nmore persons of the same class, they vest as tenants in common (\u00a7 28-9-207).<\/p>\n\n\n\n
The personal representative executes a deed to distribute, devise, or sell real property, as authorized by the decedent\u2019s will or the court. The personal representative\u2019s 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\u2019s deeds in Arkansas \u201cdo not warrant title to a subsequent grantee, and any subsequent grantee may not assert or claim any warranty of title deriving from\u201d them, though a grantor may customize the deed to include a title warranty through \u201cexpress use of warranty language\u201d (\u00a715-12-605).<\/p>\n\n\n\n
The deed includes information regarding the probate case, the decedent, and the personal representative\u2019s 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.<\/p>\n\n\n\n