What Happens If You Die Without a Will in Arkansas?

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What does your home state say about you? A recent survey categorized states into five personality clusters. It found Arkansas to be a state of “hardworking, no-nonsense folks who enjoy the company of others.” 

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While we can’t verify whether or not this statement is true, we can verify that where you live impacts your life and even your death. 

If you die without a will, you are said to have died intestate. Without a will, the state where you live will determine what happens to your property based on intestacy laws. As a result, if you die without a will in Arkansas, then Arkansas intestacy laws will determine what happens to your property.

Arkansas’s Intestacy Laws Explained

Only you can decide if you need a will. In some instances, intestacy laws may provide exactly what you desire with respect to the distribution of your assets. Below, we review Arkansas’s intestacy laws. If you have additional questions about how these laws may impact you or your loved ones, consider consulting an Arkansas estate planning attorney. Any good estate planning attorney worth their salt can answer your questions and provide guidance regarding your estate planning options.

How Does Probate Work in Arkansas If There Is No Will?

When a person dies in Arkansas, state law requires a legal proceeding to settle the estate. This proceeding, called administration, takes place in the probate division of the circuit court of the county where the deceased resided. 

Not all property goes through the probate court proceedings. If the property is transferred by other means such as joint ownership or right of survivorship, then it will not be subject to probate.

During probate, the court appoints a personal representative to settle the estate. The personal representative may hire an attorney to assist with the probate process. Regardless of how they are designated, a personal representative has a great deal of responsibility. They must take charge of all of the property of the estate and distribute it appropriately, not unlike the executor of a will.

The main duties of the personal representative include the following:

  1. Take possession of and protect the real and personal property, excepting the homestead and real estate specifically given by the will.

  2. Keep real estate and personal property properly insured.

  3. Receive the rents and payments due and collect interest, dividends and other income.

  4. Make proper demand for and collect all the debts, claims and notes due.

  5. Assist in determining the names, ages, residences and degree of relationship of all possible heirs.

  6. Litigate or settle any pending lawsuits in which the deceased had an interest.

  7. Keep the property of the estate in good repair.

  8. Keep surplus funds invested.

  9. Obey and perform all the orders of the court.

  10. Determine and pay federal and state estate taxes and federal and state income taxes.

  11. Pay the valid claims of creditors and, if necessary, sell the estate property to do so.

  12. Distribute the remaining assets to the proper heirs.

The entire process of administering the estate can take a long time. Depending on the size and complexity of the estate, it can take up to six months or longer. 

Dispensing with probate

Probate may not always be necessary depending on the value of the deceased person’s estate. In Arkansas, it may be possible to eliminate the need for probate administration. This can happen if: 

  • the value of the deceased person's estate does not exceed $100,000, excluding certain allowances

  • there are no unpaid claims against the estate.

In this instance, an affidavit for collection of small estate by distributee would need to be filed with the appropriate court.

Who Typically Inherits Assets in Arkansas If There Isn’t a Will?

If there isn’t a will then Arkansas’s intestacy laws direct who will inherit assets. Keep in mind that if you die without a will in Arkansas, your property is distributed according to a priority of distribution. It is distributed in the following order: 

  1. Non-probate transfers

  2. Homestead and statutory allowances

  3. Dower and curtesy

  4. Creditors

  5. Intestate succession

Intestate succession is the transfer of portions of the estate as provided for by Arkansas law. This only occurs after other statutory rights are addressed and creditors are paid. These statutory rights impact the deceased’s surviving spouse and/or minor children. They will be discussed in more detail in the later sections.

After all of the priorities are addressed, then the remainder of the deceased’s property will be distributed in accordance with Arkansas’s intestacy laws. In Arkansas, the deceased’s decendants typically inherit assets if there is no will. Descendants include the deceased’s children, grandchildren, and all others, in a direct line of descent from the deceased.

If the deceased has no descendants, the surviving spouse typically inherits the assets if there is no will. However, in Arkansas, the surviving spouse is only entitled to all of the assets if the marriage was longer than three years. If the marriage was less than three years, the surviving spouse is only entitled to half of the assets. The surviving spouse has other rights which will be discussed in more detail in the next section.

Descent Table

The descent table is the Arkansas statute that governs who is entitled to the deceased’s heritable estate. The heritable estate is the part of the deceased's estate that can pass by inheritance. It is subject to the priority of distribution discussed above. If you are unsure as to who follows in the descent table, here is the statute is expressly written below.

Under the descent table, descendants inherit first, then the surviving spouse, then the deceased’s parents, then the deceased’s siblings, or the descendants of the deceased siblings. 

Arkansas Code Title 28. Wills, Estates, and Fiduciary Relationships § 28-9-214. Descent Table provides the following:

“The heritable estate of an intestate as defined in § 28-9-206 shall pass as follows upon the intestate's death:

  1. First, to the children of the intestate and the descendants of each child of the intestate who may have predeceased the intestate. The children and descendants will take per capita or per stirpes according to §§ 28-9-204 and 28-9-205;

  2. Second, if the intestate is survived by no descendant, to the intestate's surviving spouse unless the intestate and the surviving spouse had been continuously married less than three (3) years next preceding the death of the intestate, in which event the surviving spouse will take merely fifty percent (50%) of the intestate's heritable estate;

  3. Third, if the intestate is survived by no descendant or spouse, to the intestate's surviving parents, sharing equally, or to the sole surviving parent if only one (1) of them shall be living;

  4. Fourth, if the intestate is survived by no descendant but is survived by a spouse to whom the intestate has been continuously married less than three (3) years next preceding the death of the intestate, the entire portion of his or her heritable estate which does not pass to the surviving spouse under subdivision (2) of this section shall pass to the intestate's surviving parents, sharing equally, or to the sole surviving parent if only one (1) of them shall be living;

  5. Fifth, if the intestate is survived by no descendant or parent, then all of his or her heritable estate which under subdivisions (3) and (4) of this section would have vested in the intestate's surviving parent or parents will pass to the intestate's brothers and sisters and the descendants of any brothers and sisters of the intestate who may have predeceased the intestate, such brothers, sisters, and descendants taking per capita or per stirpes according to §§ 28-9-204 and 28-9-205;

  6. Sixth, if the intestate is survived by no descendant, then in respect to such portion of his or her heritable estate as does not pass under subdivisions (2)-(5) of this section, the inheriting class will be the surviving grandparents, uncles, and aunts of the intestate.  In this situation, each surviving grandparent shall take the same share as each surviving uncle and aunt, and no distinction shall be made between the paternal and maternal sides.  In other words, a maternal grandparent, uncle, or aunt shall take the same share as a paternal grandparent, uncle, or aunt and vice versa.  If any uncle or aunt of the intestate shall predecease the intestate, the descendants of the deceased uncle or aunt will take, per capita or per stirpes according to §§ 28-9-204 and 28-9-205, the share the decedent would have taken if he or she had survived the intestate;

  7. Seventh, if the intestate is survived by no descendant, then in respect to the portion of his or her estate as does not pass under subdivisions (2)-(6) of this section, the inheriting class will be the surviving great-grandparents and great-uncles and great-aunts of the intestate.  In this situation, each surviving great-grandparent shall take the same share as each surviving great-uncle and great-aunt, and no distinction shall be made between the paternal and maternal sides.  In other words, a maternal great-grandparent, great-uncle, or great-aunt shall take the same share as a paternal great-grandparent, great-uncle, or great-aunt and vice versa.  If any great-uncle or great-aunt shall predecease the intestate, the descendants of the decedent will take, per capita or per stirpes according to §§ 28-9-204 and 28-9-205, the share the decedent would have taken if he or she had survived the intestate;  and

  8. Eighth, if heirs capable of inheriting the entire heritable estate cannot be found within the inheriting classes prescribed in subdivisions (1)-(7) of this section, the real and personal property of the intestate, or the portion not passing under those subdivisions, shall pass according to § 28-9-215, devolution when all or some portion of a heritable estate does not pass under this section.”

Frequently Asked Questions: Dying Without a Will in Arkansas

Intestacy laws vary by state and Arkansas has some unique provisions. Below we will answer some frequently asked questions about dying without a will in Arkansas. As we answer these questions, we will try to address some of the more unique provisions that you may encounter when dealing with Arkansas intestacy laws. 

What happens when your parent dies without a will?

When your parent dies, their real estate will pass immediately to you and your siblings (if any). This is subject to the right of the personal representative to use the real estate in the best interest of the estate. 

As you read in the previous section, if your parent dies without a will, you and your siblings (or their children if they are deceased) are entitled to the entire heritable estate.

Keep in mind that children under 21 years of age may have additional rights. If you are under 21 and your parent has died, then you should speak with a probate attorney to help understand your rights.

What are a surviving spouse’s rights if there’s no will?

In Arkansas, the surviving spouse is entitled to property under a doctrine called “dower and curtesy.” These rights provide a share of the decedent’s estate to the surviving spouse. They supersede the rights of heirs and creditors.

The rights vary depending on whether the deceased has children or other descendants. If the deceased dies without children or other descendants, then the surviving spouse will inherit half of the real estate and half of the personal property. 

If the deceased dies with children then the surviving spouse has the right to use, for life, one-third of the deceased’s real estate. This is the real estate that immediately passed to the children upon their parent’s death. In addition, the surviving spouse also inherits one-third of the personal property. 

Are there any probate exemptions if you die without a will in Arkansas?

In Arkansas, there is a homestead exemption. It takes the homestead out of the probate process and entitles the surviving spouse and any children under 21 years of age to rents and profits. The surviving spouse is only entitled to the homestead exemption if the marriage lasted longer than a year. 

Who is considered next of kin in Arkansas?

Next of kin can be a confusing term when it comes to legal matters. Typically, next of kin is used to identify a person’s closest living relatives at the time of their death. In Arkansas, next of kin includes persons related by blood, marriage, or adoption. 

Plan for End of Life to Avoid Dying Without a Will in Arkansas

If you live in Arkansas and do not have a will, then Arkansas’s intestacy laws will determine what happens to your property when you die. If you are unsure of whether Arkansas’s intestacy laws are right for you, then you should speak with an estate planning attorney. An estate planning attorney can answer your questions and help you with end-of-life planning.


Sources:

  1.  Arkansas Code Title 28. Wills, Estates, and Fiduciary Relationships § 28-9-214. Descent table.” Arkansas, FindLaw, 1 January 2020, Codes.findlaw.com.

  2. Helms, A. Leon, William D. Haught and James V. Scurlock, II. “Handbook for Arkansas.” Probate Section of the Arkansas Bar Association, 2002.

  3. Moon, Kat. “What Does the State You Live in Say About Your Personality?” Advice, Daily Muse Inc., Themuse.com.

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