Estate Planning, Probate, and Fiduciary Matters

A will allows a person to name beneficiaries, nominate a personal representative, direct how property should pass, and make final wishes clear in a legally enforceable way.

Arkansas law has specific requirements for executing a valid will. A non-holographic will must be signed by the testator and at least two witnesses. See Ark. Code Ann. § 28-25-103. The testator must declare to the attesting witnesses that the instrument is his or her will, and the execution must satisfy the statutory requirements. If those requirements are not met, the will may be vulnerable to challenge or may fail entirely.

Arkansas also recognizes holographic wills, but the entire body of the will and the signature must be in the testator’s handwriting, and the handwriting and signature must be established by at least three credible disinterested witnesses. See Ark. Code Ann. § 28-25-104. Handwritten wills can be valid, but they often create avoidable proof problems, especially when family members disagree about the decedent’s intent.

A properly prepared will should reflect the client’s real circumstances. That may include real property, vehicles, bank accounts, family heirlooms, business interests, blended-family concerns, children from prior relationships, property passing outside probate, or specific items that may become contested if not addressed clearly.

A power of attorney allows a trusted person, called an agent, to act for the principal in financial, property, and legal matters. In Arkansas, a power of attorney must be signed by the principal or, in the principal’s conscious presence, by another person directed by the principal to sign. A signature is presumed genuine if acknowledged before a notary public or other person authorized to take acknowledgments. See Ark. Code Ann. § 28-68-105.

Powers of attorney are governed by the Arkansas Uniform Power of Attorney Act, Ark. Code Ann. § 28-68-101 et seq. An agent must act in accordance with the principal’s reasonable expectations if known, otherwise in the principal’s best interest, and must act in good faith and within the authority granted. See Ark. Code Ann. § 28-68-114.

Some powers must be granted expressly. For example, an agent may create, amend, revoke, or terminate a trust; make gifts; create or change rights of survivorship; or create or change beneficiary designations only if the power of attorney expressly grants that authority and the authority is otherwise lawful. See Ark. Code Ann. § 28-68-201. This makes careful drafting especially important when the principal wants the agent to have estate-planning, gifting, real-estate, or beneficiary-designation powers.

Estate planning should address incapacity during life, not only death. A serious illness, injury, surgery, cognitive decline, or unexpected emergency can leave family members unsure who may speak with doctors, access records, make decisions, or handle financial affairs.

Health-care planning documents can identify the person authorized to make medical decisions, provide direction about treatment preferences, and reduce uncertainty when decisions must be made quickly. Financial powers of attorney can help ensure that bills, insurance, accounts, property, and business affairs can be managed without unnecessary court intervention.

The goal is not simply to sign documents. The goal is to create a coordinated plan that banks, hospitals, title companies, family members, and courts can understand and rely upon.

A trust may be useful when a will alone does not solve the problem. Trust planning can help with privacy, management of property for children or vulnerable beneficiaries, staged distributions, probate avoidance, business succession, real estate held in multiple counties or states, and family circumstances where direct inheritance would create problems.

Arkansas has adopted the Arkansas Trust Code, Ark. Code Ann. § 28-73-101 et seq. Unless the terms of a trust expressly provide that it is irrevocable, a settlor may revoke or amend a revocable trust, subject to the statute and the terms of the instrument. See Ark. Code Ann. § 28-73-602.

A trust must be drafted correctly and funded correctly. If real estate is supposed to be held in trust, deeds may need to be prepared and recorded. If accounts are intended to pass through the trust, ownership or beneficiary designations must be coordinated. A trust that is not funded or coordinated with the rest of the estate plan may fail to accomplish the client’s intended result.

Probate is the court process used to administer a decedent’s estate. It may be necessary to admit a will, appoint a personal representative, collect assets, address creditor claims, sell property, resolve title issues, distribute property, and close the estate.

If a will exists, the court may admit it to probate and appoint the nominated executor or personal representative. If there is no will, Arkansas intestacy law determines who inherits, and the court may appoint an administrator.

In many probate estates, notice to creditors is required. Claims against an estate are subject to strict statutory deadlines, including the six-month claims period tied to the first publication of notice. See Ark. Code Ann. §§ 28-40-111, 28-50-101. Personal representatives must also account for estate assets, pay valid claims in the proper order, and distribute the remaining estate according to the will or Arkansas intestacy law.

Our office assists personal representatives, executors, administrators, heirs, and beneficiaries with petitions, notices, inventories, creditor issues, accountings, property sales, distributions, and discharge.

Some estates may qualify for Arkansas’s small-estate affidavit process. Under Ark. Code Ann. § 28-41-101, a distributee may be able to collect estate property without appointment of a personal representative if the statutory requirements are met. Among other requirements, forty-five days must have passed since death, no petition for appointment of a personal representative may be pending or granted, and the value of the estate must fall within the statutory limit, subject to the statutory treatment of homestead and allowances.

Small-estate procedures can be efficient, but they are not appropriate for every estate. Real estate, creditor claims, family disputes, missing heirs, title problems, Medicaid estate recovery, or uncertainty about ownership can make even a “small” estate legally complicated.

Not every estate can be handled quietly. Disputes may arise over testamentary capacity, undue influence, execution formalities, fraud, mistake, forgery, missing or later-discovered wills, no-contest clauses, beneficiary designations, lifetime transfers, powers of attorney, trusts, real estate, or whether a fiduciary acted properly.

An interested person may contest the probate of a will by filing written grounds of objection, but Arkansas law imposes strict deadlines that vary depending on notice and the grounds asserted. See Ark. Code Ann. § 28-40-113. Missing a deadline can determine the case before the merits are ever reached.

Arkansas probate litigation also often involves questions of burden of proof. A contestant may challenge capacity or undue influence, while the proponent of the will may need to prove proper execution and, in some circumstances, respond to presumptions arising from procurement, confidential relationships, or suspicious circumstances. Recent Arkansas cases continue to show that probate disputes are fact-intensive and turn heavily on testimony, documents, relationships, medical evidence, and the circumstances surrounding execution of the instrument.

Our office represents clients in will contests, trust disputes, fiduciary claims, estate-accounting disputes, claims involving powers of attorney, and litigation over real property or beneficiary rights connected to an estate.