What is probate when there isn’t a Will?
Most people would rather walk over hot, smoking coals than to go through a probate. For most people, probate is a long, anxiety filled process.
Probate without a will is technically just administration of the estate. It runs about the same as with a Will, except the state of Arkansas has decided who will get what, when, and how.
Without a will or trust, the state has decided for you who gets what, when, and how much. The state has effectively taken control of the situation and taken control away from you and your family.
There are a set of rules and procedures that must be followed as set forth by the state.
The state’s plan is necessarily generic and may not fit your situation or even be close to what you want.
Here are the basic rules:
- Your spouse of over a year gets about 1/3rd of everything only in your name. Real estate is retitled as a “life estate.” This means your spouse can live there and collect rents but can’t sell the house without permission of your children. Even if the house is sold, your spouse only gets the value of the “life estate.” That value is based on mortality tables published by the Social Security administration.
- Your children split the other 2/3rds
- All your outstanding bills are paid before distribution.
- All your final costs are paid distribution. Those include medical bills and funeral expenses.
- Any attorney fees are paid before distribution.
- The personal representative fee gets paid before distribution
- Distribution will occur approximately 8 to 12 months after the case is opened. Your family can apply for an allowance to get by. The allowance isn’t much.
- Money for minors is held in trust or special bank accounts under court supervision until they are 18. At 18 they get a check to do with as they please.
Of course, without a will in place, it is more likely that your family will fight over who gets what, especially the sentimental pieces.
This can be avoided by taking the time to plan now.