Each and every state has a set of laws that control the transfer of a person’s property after he or she dies. Probate is the judicial proceedings which must typically take place in order to ensure that a person’s debts are paid and his or her heirs take legal title to whatever property is left over.
Most of us are at least vaguely familiar with the concept of will. Those are the tools at our disposal to control the payment of our debts and distribution of our property. A will enables a person to direct how his or her belongings are divided amongst friends and family despite what state law would otherwise require.
But this brief article will explain what happens when you don’t have a Will drawn up before your death. With an understanding of the state’s default rules you will hopefully have an appreciation for the usefulness of a Will.
Whether or not you have a Will, when you die, most of your belongings which you own in your own name become your Estate. If you pass away without having drafted a Will, you are said to have died intestate. You can even be considered partially intestate if your Will doesn’t specify what should happen to all of the property you own.
For example, you may have a Will drafted that leaves your home to your spouse and your antique car to your daughter. But if that Will doesn’t say anything else about your other belongings, the rules of intestate succession will be used by the court to determine who gets the rest of your property.
The two most important terms to grasp in this situation are “descendents” and “heirs.” These terms overlap, but they are not interchangeable. A descendent is almost always a relative through blood, marriage, or adoption. This means that step-children who are not adopted typically do not inherit without a Will or Trust that provides specifically for them. An heir refers to the person or persons who will actually inherit when a person dies intestate. Heirs can be descendents and descendents can be heirs, but neither is always true. This is because there are default rules that control the order of inheritance when a person dies intestate and because you can draft a Will in order to decide on your own who will get your property.
If you don’t have a Will, the default order of descent goes like this: (1) full blood, half blood, and adopted children of the decedent, subject to any dower, curtesy, and homestead interest of a spouse; (2) if no full blood, half blood, or adopted children, then everything to a spouse of greater than three years or half of everything plus dower, curtesy, and homestead to a spouse of less than three years and the other half of everything to other heirs (per this table); (3) to the decedent’s parents or surviving siblings; (4) to the decedent’s grandparents or surviving aunts, uncles, cousins, etc.; (5) to the decedent’s great-grandparents or surviving great aunts, great uncles, etc.; (6) if none of those intermediate descendents are alive the remaining half can go to the spouse of less than three years or to a predeceased spouse’s heirs; (7) finally, if none of these apply, all the property escheats to the county where the decedent died.
A good way to visualize the order is to imagine the following scenario: Alfred dies without a Will. Alfred never had children, his parent’s passed away years ago, and his only living relative is his cousin Harvey. Because Alfred has no children, we check to see if he has a spouse. Alfred never married so we check to see about surviving parents. Alfred’s parents are already dead and they had no other children, so we look to his grandparents, uncles and aunts or their surviving descendents. One of his aunts had a son named Harvey who is Alfred’s living cousin. Harvey inherits Alfred’s estate.
But what does he inherit? Harvey inherits everything that remains after Alfred’s debts are paid and the cost of administering his estate is paid.
That all seems logical, so why should you care about a Will? You should care because you probably have people you care about more than Cousin Harvey, because you may not like Cousin Harvey, or any number of a hundred other personal reasons that only you might want to divide your property out to other people.
That is exactly what a Will is for. You can give specific things to specific people and you aren’t limited to family. Your best friend can get that jewelry you want her to have. Your brother can get that classic car he helped you restore. In Arkansas, a Will can also let you make a hand-written list to keep separate from your Will where you can divide up all kinds of personal property on that list and make changes to it as you see fit. You only need to refer to that list in the Will and reserve the right to do so.
Arkansas provides default rules that are supposed to be a last resort when you don’t take the time to prepare a Will. And preparing a Will is a very easy, quick way to make sure you decide how to divide your property after you’re gone. But there are requirements which must be met for a Will to be valid. Otherwise, a court will throw the Will out and proceed as if you never had one.
A good lawyer can spend a short amount of time with you and know everything he or she needs to know to draft your Will and calm any fear you may have that it will be ineffective. The attorneys at Owens, Mixon & Gramling have decades of experience tailoring Wills to your instructions. And we can remain part of the process for years to come. If you change your mind, we can amend your Will or revoke the old one and start over. Changing your Will is just as easy as creating one.
A Will can bring you peace of mind that your friends and loved ones will be taken care of after you’re gone. And it doesn’t need to be a stressful or time consuming event. If you would like to have a Will drawn up, please give us a call at Owens, Mixon, Heller & Smith, P.A. at 870-336-6505, toll-free at 855-814-4018, or email Aaron Heller at email@example.com