Fayetteville Estate Planning Academy Episode 3: Probate Video

Definitions

• Executor/Executratrix: Male/Female person in charge of the Will
• Administrator/Administratrix: Male/Female person in charge of Administration
• Heir: Person legally entitled to property on that person’s death (and not until)
• Devisee: A person to whom real estate (real property) is given
• Devise: give somebody real estate in a Will
• Legatee: A person to whom personal property is given (personal property is anything but real estate)
• Probate: The official proving or establishing the validity of the Will. After that, following the instructions in the Will to distribute property to the devisees and legatees, pay debts, and pay taxes.
• Administration: Management and distribution of the estate if there isn’t a Will. Administration is under strict judicial oversite.
• Life Estate: A lifetime interest in the ownership of real estate
• Life Tenant: The holder of a life estate
• Remainderman: Who gets the property after a life estate ends

Probate Estate

Your probate estate consists of that property that is subject to the court overseen process.  That is, property that can’t be left directly to heirs without court intervention.  Not everything you own goes through probate.  Some property can be left directly, such as most accounts including retirement accounts and jointly owned property with the right of survivorship.  This means that you have 2 estates when you pass, your probate estate and non-probate estate.

Probate

Probate is the formal, long, challenging, public process of changing ownership of you property to your heirs and devisees; selling stuff; and more. It requires numerous hearings.    A short probate can take 8 months or more.  This is because of the requirement for a 6 month period for creditors to show up and make their claims against your probate estate.  And if accounting and inventory is required, you can add at least 4 months because of advertising requirements for the accounting and probate.

Probate is public. Anybody can see the probate records.  Anybody can pull the inventory and see how much the people are getting. 

No Will, No Trust – No Problem

That is because the State of Arkansas has already written a Will for you!

The State has decided who gets how much and when!

Married

If you are married, any assets in your probate are divided between your spouse and children.  If you have children, your spouse gets 1/3rd of the real estate, but only in what is called a “life estate.”  A life estate means they have the right to live there and profit from the property, but at their death, the remainder of ownership passes to your children outright.  

Your spouse gets 1/3rd of the cash and other liquid assets.  Your children split the other 2/3rds in even shares.

This means that if you wanted to leave differing amounts or disinherit a child, you can’t.

Not Married

You children (or heirs at law) split your estate evenly between them.  If they are over 18, then get the money immediately.  If they are under 18, the court will supervise the money until they are 18, then give it to them in a lump sum.