No Will? What happens?

YOU MAY BE SURPRISED AS TO WHAT WILL HAPPEN UNDER ARKANSAS LAW.

While over half of Americans (56%) in a recent survey said that it’s very important or somewhat important to have a will or living trust, only 33% of Americans have one of these documents in place. Several estate planning tools are available, but a Will is the simplest document to create.[1] If you are one of the over 2/3 of Americans with no estate planning document in place, you may wonder what will happen if you do nothing and die without establishing a Will for yourself.

Let’s examine what would happen in Arkansas if you died without a Will.

SOME PROPERTY IS NOT IMPACTED BY WHETHER OR NOT YOU HAVE A WILL

Some of your property and assets will automatically go to your intended recipients based on how those assets are owned or because you have named beneficiaries as part of your retirement, investment, and insurance contracts. This property and assets never become part of your property that a judge will supervise in a probate case.

The assets that automatically transfer to someone else upon death include:

· Bank accounts set up to “pay on death” to a specific person who is alive at the time of your death;

· Real property with a “beneficiary deed” to transfer at the time of your death ownership to a specific living person;

· Retirement accounts, life insurance, and other investment accounts in which you have named a specific person or people as beneficiary or beneficiaries;

· Property owned jointly by a husband and wife;

· Property owned by other individuals in which the deed specifies that the owners are “tenants by the entirety”; and

· Vehicles title in your name and someone else’s name.

All other assets that you own at the time of your death will be your “probate property” that will be distributed by the court.

NOT HAVING A WILL DOES NOT AVOID PROBATE

Whether or not you have a Will, if you leave behind probate property when you die, someone will have to file a probate case to transfer ownership to your heirs lawfully. If you die without a Will, you give up your opportunity to nominate someone you trust to be the executor. The Executor is the person who files and handles the probate case for your estate. If you die without a Will, the judge will have to appoint a personal representative for your estate without the benefit of your guidance as to who should handle your final business affairs.

WHO DECIDES WHAT HAPPENS TO YOUR PROBATE PROPERTY?

If you die with a valid Will, the Court will distribute your probate property according to the instructions that you have written into your Will.

If you die without a valid Will, the Court will distribute your probate property according to your state’s “intestacy law.” Intestacy laws, written by your state’s legislature, are the default property distribution rules.

Each state has created rules for who inherits the probate property of a person who dies without a Will. You may be surprised by how Arkansas’ intestacy laws distribute property, for example:

· If you are married and have children, your children will receive your probate property, not your spouse. And, if any of your children died before you and are survived by their children/your grandchildren, they receive your deceased child’s share of your probate property.

· If you are married and have no children, your spouse will receive your probate property if you have been married for at least three years. However, if you have been married to your spouse for less than three years, your spouse will receive 50% of your probate property. The remaining 50% of your probate property will pass to your parents if one or both are alive.

· If you are not married and have no children, then your parents, if one or both are alive, will receive your probate property.

· If you are unmarried, have no children, and your parents are deceased, your siblings will receive your probate property. And, if your sibling died before you and is survived by their children/your niece or nephew, the niece/nephew will receive your deceased sibling’s share of your probate property.

Your state's intestacy laws may or may not be what you want for your loved ones and your property. If not, an attorney can help you create a Will that records your instructions for distributing your assets. If you live in Arkansas, I would be honored to work with you to create an estate plan that documents your wishes for your help and your loved ones. Please get in touch with me at elaine@kneebonelaw.com to schedule a complimentary phone consultation.

[1] Cobb, D. (2022, April 12). Wills and Estate Planning Study. Caring.com. https://www.caring.com/caregivers/estate-planning/wills-survey/