Avoiding probate is a goal for most of our clients, but a lot of people don’t know—prior to talking to an elder law attorney—why they’d want to avoid probate. Here’s why:
1.) It’s a lengthy process. The minimum amount of time a probate has to stay open is six months. Arkansas law requires you to run a notice in the newspaper that the estate has been opened. Potential creditors then have six months from the day that notice first ran to make a claim. Because you can’t run the notice until someone has actually been appointed as personal representative of the estate, and you have to petition for authority to close the estate even after the six months, the average time-frame for a probate is nine months to a year.
2.) It’s expensive. Most attorneys handle probate cases based on the fee schedule set out in the Arkansas probate statute, which hinges on the value of the estate. The fee is usually around 3–5% of the value of the estate. So, if the only assets in the estate are a home valued at $150,000 and a vehicle valued at $10,000, the attorney’s fees alone could be $5,000 or more.
3.) It’s public. All the probate documents are filed as public record with the circuit clerk in the county where the deceased was residing when he or she died. This means the public has access to information regarding the deceased’s family, assets, and debts, and can see documents such as the deceased’s death certificate and will.
4.) Your wishes may not be carried out. If you don’t have a will that sets out who you want to receive your assets when you die, that decision is left to Arkansas intestacy laws. Most people are shocked to learn that a spouse does not automatically inherit the estate. A spouse actually only inherits the entire estate if there are no children and they were married for at least three years prior to the death. If the deceased had children, then the spouse is only entitled to a dower or courtesy interest, which is only about 1/3 of the value of the personal property and a life estate on 1/3 of the real estate—not very much.