Wills and Estates – Small Estates – Arkansas
Small Estates General Summary: Small Estate laws were enacted in order to enable heirs to obtain property of the deceased without probate, or with shortened probate proceedings, provided certain conditions are met. Small estates can be administered with less time and cost. If the deceased had conveyed most property to a trust but there remains some property, small estate laws may also be available. Small Estate procedures may generally be used regardless of whether there was a Will. In general, the two forms of small estate procedures are recognized:
1. Small Estate Affidavit -Some States allow an affidavit to be executed by the spouse and/or heirs of the deceased and present the affidavit to the holder of property such as a bank to obtain property of the deceased. Other states require that the affidavit be filed with the Court. The main requirement before you may use an affidavit is that the value of the personal and/or real property of the estate not exceed a certain value.
2. Summary Administration -Some states allow a Summary administration. Some States recognize both the Small Estate affidavit and Summary Administration, basing the requirement of which one to use on the value of the estate. Example: If the estate value is 10,000 or less an affidavit is allowed but if the value is between 10,000 to 20,000 a summary administration is allowed.
Arkansas Summary: Under Arkansas statute, a party entitled to the proceeds of an estate may claim said proceeds by filing a small estate affidavit. The affidavit must state, among other things (please see below), that forty-five (45) days have passed since the death of the decedent, that the estate is valued at less that $100,000, and that all claims against the estate have been paid. After the filing of this affidavit with the clerk for the probate court, and a finding that the below statute has been complied with, the probate judge will issue an order releasing the proceeds of the estate.
Arkansas requirements are set forth in the statutes below.
§ 28-41-101 (2015). Collection of small estates by distributee.
(a) The distributee of an estate shall be entitled thereto without the appointment of a personal representative when:
(1) No petition for the appointment of a personal representative is pending or has been granted;
(2) Forty-five (45) days have elapsed since the death of the decedent;
(3) The value, less encumbrances, of all property owned by the decedent at the time of death, excluding the homestead of and the statutory allowances for the benefit of a spouse or minor children, if any, of the decedent, does not exceed one hundred thousand dollars ($100,000);
(4) There shall be filed with the probate clerk of the circuit court of the county of proper venue for administration an affidavit of one (1) or more of the distributees setting forth:
(A) That there are no unpaid claims or demands against the decedent or his or her estate, that the Department of Human Services furnished no federal or state benefits to the decedent, or, that if such benefits have been furnished, the department has been reimbursed in accordance with state and federal laws and regulations;
(B) An itemized description and valuation of the personal property and a legal description and valuation of any real property of the decedent, including the homestead;
(C) The names and addresses of persons having possession of the personal property and the names and addresses of any persons possessing or residing on any real property of the decedent; and
(D) The names, addresses, and relationship to the decedent of the persons entitled to and who will receive the property; and
(5) There is furnished to any person owing any money, having custody of any property, or acting as registrar or transfer agent of any evidence of interest, indebtedness, property, or right, a copy of the affidavit certified by the clerk.
(b) (1) (A) The clerk shall file the affidavit, assign it a number, and index it as required by § 28-1-108(1).
(B) He or she shall make a charge of twenty-five dollars ($25.00) for filing the affidavit and five dollars ($5.00) for each certified copy.
(C) An order of the court or other proceeding is not necessary.
(D) An additional fee shall not be charged if a will is attached to the affidavit.
(2) (A) If an estate collected under this section contains real property, in order to allow for claims against the estate to be presented, the distributee shall cause a notice of the decedent’s death and the filing of an affidavit for the collection of his or her estate to be published within thirty (30) days after the affidavit has been filed.
(B) The notice shall be in substantially the following form:
“In the Circuit Court of ………………… County, Arkansas
In the Matter of the Estate of ………………., Deceased. No. …………………
Name of decedent …………………
Last known address …………………
Date of death …………………
On ……………….., an affidavit for collection of small estate by distributee was filed with respect to the estate of ………………., deceased, with the clerk of the probate division of the circuit court of ……………. County, Arkansas, under Ark. Code Ann. § 28-41-101.
All persons having claims against the estate must exhibit them, properly verified, to the distributee or his or her attorney within three (3) months from the date of the first publication of this notice or they shall be forever barred and precluded from any benefit of the estate.
The name, mailing address, and telephone number of the distributee or distributee’s attorney is:
This notice first published …………………., 20…”.
(C) Publication of the notice shall be as provided in §§ 28-1-112(b)(4) and 28-40-111(a)(4).
§ 28-41-102 (2015). Payment, transfers, or deliveries pursuant to affidavit.
(a) The person making payment, transfer, or delivery pursuant to the affidavit described in § 28-41-101 shall be released to the same extent as if made to a personal representative of the decedent, and he or she shall not be required to see to the application thereof or to inquire into the truth of any statement in the affidavit.
(b) (1) The distributee to whom payment, transfer, or delivery is made, as trustee, shall be answerable to any person having a prior right and shall be accountable to any personal representative thereafter appointed.
(2) However, if notice to creditors of the decedent’s death and the collection of his or her estate is published as provided by § 28-41-101, all claims as to real property within the estate, in any event, shall be forever barred at the end of three (3) months after the date of the first publication of the first notice.
(3) Nothing in this section shall affect or prevent any action or proceeding to enforce any mortgage, pledge, or other lien arising under contract or statute upon the property of the estate.
(c) If the person to whom the affidavit is delivered refuses to pay, transfer, or deliver the property as provided in this section, the property may be recovered or delivery compelled in an action brought in a court of competent jurisdiction for such a purpose by or in behalf of the distributee entitled to the property upon proof of the facts required to be stated in the affidavit.
(d) After filing the affidavit and publishing the notice required by § 28-41-101, the distributee entitled to the transfer or delivery of real property shall:
(1) Be authorized to issue to himself or herself a deed of distribution for the real property of the decedent as if made by a personal representative of the decedent; and
(2) Deliver notice of the transfer of ownership to the county assessor of each county where the real property is located.
§ 28-41-103 (2015). Petition and order for no administration.
(a) Either with or without administration, if the court shall determine upon petition of an interested person that the personal property owned by a decedent at the time of his or her death does not exceed that to which the surviving spouse, if any, or minor children, if any, are by law entitled free of debt, as dower or curtesy and statutory allowances, then the court may enter an order vesting the entire estate in the surviving spouse and minor children, or the surviving spouse or minor children.
(b) The statutory allowances payable to or for the benefit of the minor children of the decedent may be paid to the surviving parent without the interposition of a guardian if the surviving parent has custody of the minor children.
(c) The petition may be granted without notice or upon such notice as the court may direct.
(d) (1) The order shall specifically describe the property vested thereby.
(2) The order, to the extent of the property specifically described in the order, until revoked, shall constitute sufficient legal authority to all persons owing any money, having custody of any property, or acting as registrar or transfer agent of any evidence of interest, indebtedness, property, or right belonging to the decedent and to persons purchasing or otherwise dealing with the property, for payment or transfer to the persons described in the order as entitled to receive the property.
§ 28-41-104 (2015). Proceedings to revoke order.
At any time within one (1) year after the making of an order as provided in § 28-41-103, the court, either for good cause shown upon petition of an interested person or upon its own motion, may set the order aside.