The Elrod Firm

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A Decedent’s Property Is Not Distributed Based On What’s Fair

For better or worse, when someone passes away, their property is not distributed based on what’s equitable—or what’s fair—under the circumstances.

Unfortunately, we don’t get to argue someone should receive something because it’s the right thing to do. We have clients ask if we can present evidence to show that their dad had been estranged from his daughter for ten years and never would have left her a large asset. Or they want us to prove that a son took care of mom for years prior to her death, that mom assured her son she would leave him a portion of her estate, so it’s only fair that he receive a portion, even though his mom didn’t realize her accounts only had the older sister named as a beneficiary so everything was going to her. The caregiver child questions why his sister will receive everything when she did nothing to care for mom.

When wrapping up someone’s affairs after they die, you don’t get to consider what would be the “fairest” distribution—you have to look at how the assets were owned prior to death and the decedent’s formal estate plan after death. Property, in Arkansas, is distributed based on: 1) surviving ownership of the asset; 2) beneficiary designations; 3) trust terms; 3) instructions in a will; or 4) intestacy laws if someone passes away with property in their name without a will. You don’t get to present evidence to the court of what you heard mom say, what mom “would have wanted,” or all the good things you did and the bad things your sister did while mom was living.

These rules can be very frustrating, and even devastating, to loved ones left behind, but it really stresses the importance of meeting with an estate planning attorney to ensure that your assets pass the way you want them to, and as easily as possible, when you die.

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