Avoiding Probate with Small Estates with Real Property

Updated June 2017   Fact Sheet PDF


Introduction

Probate is a legal process that takes place after someone dies.

 

The probate process usually includes:

  • proving in court that a deceased person's will is legal (usually a routine matter)
  • listing the deceased person's property
  • getting the property appraised (how much is it worth)
  • paying the debts and taxes
  • distributing what is left as directed by either the will or, if there is no will, Arkansas law
 

Many people want to avoid the probate process because it can be a long and expensive process. There are many ways to avoid probate, such as owning property jointly, Payable on Death (POD) accounts, or giving the property away before death. You can also avoid or shorten the probate process with small estate laws.

 

Collection of Small Estates

Small estate laws were enacted in Arkansas to allow heirs to receive the property that the deceased wanted them to have without the long process of probate. In Arkansas, you may be able to avoid the probate process or at least shorten the process if certain conditions are met.

 

These conditions include:

  • the total value of the estate is less than $100,000 and claims (debts or judgments) against the estate have been paid—there are other exclusions and exemptions from this amount, such as the homestead exemption and spouse and child allowances
  • 45 days have passed since the death before filing the affidavit
  • there is neither a personal representative of the estate already appointed nor a petition for an appointment pending

 

Filing an Affidavit

You must file an Affidavit for Collection of Small Estate with the probate clerk of the circuit court in the county where the deceased last lived. The affidavit can be filed by one or more of the people receiving proceeds from the estate (called distributees).

 

The affidavit must state, among other things, that the conditions in the previous section are true.

 

After you file the affidavit with the probate clerk, the clerk will sign the affidavit and place their seal on it. You can then provide a copy of the affidavit to financial institutions or other persons or entities that have property of the deceased.

 

Small Estate Process with Real Property

If there is real property involved (land or a home), you must follow four steps to submit the estate for Small Estate Probate.

 

Step 1

An affidavit filed with the probate clerk of the circuit court of the county of proper venue for administration must be completed by one or more of the distributees (heirs). See the form “Affidavit for Collection of Small Estate by Distributee” in “Avoiding Probate with Small Estates with Real Property Packet (PDF)” at arlegalservices.org/fact-sheets.

 

Step 2

This affidavit must be filed with the probate clerk. There is a charge of $25 for filing and $5 for each certified copy. No additional fee shall be charged if a will is attached. If there are other heirs, and the other heirs have no interest in the property, they may sign a waiver in which they waive their interest in the property. This waiver would need to be filed with the affidavit.  The waiver would need to be signed by each heir other than you who may have an interest in the estate property. See the form “Disclaimer” in “Avoiding Probate with Small Estates with Real Property Packet (PDF)” at arlegalservices.org/fact-sheets.

 

Step 3

Since there is also real property involved, you will also need to file a notice in a newspaper of general circulation once a week for two weeks. See the form “Notice of Publication” in “Avoiding Probate with Small Estates with Real Property Packet (PDF)” at arlegalservices.org/fact-sheets. The cost of placing this notice will vary from newspaper to newspaper. Once the notice has run, the newspaper will send you an affidavit stating that the notice has run and the dates of publication. This will need to be filed with the probate clerk. In addition, if there are other heirs, each one will need to be sent a copy of the notice.

 

Step 4

After the filing of the affidavit and the notice, and once the waiting period has passed, the distributees shall be authorized to issue to themselves a deed of distribution for the real property of the decedent. They also shall deliver notice of the transfer of ownership to the county assessor of each county where the real property is located. See “Deed of Distribution Pursuant to §28-41-103” in “Avoiding Probate with Small Estates with Real Property Packet (PDF)” at arkansaslegalservices.org/fact-sheets.

 

Glossary

  • affidavit: a written document where the signer swears under oath (such as notary public) that the statements in the document are true
  • deceased: the person who has died
  • distributee: anyone who received something—usually the term refers to someone who inherits a deceased person's property
  • homestead: the main dwelling of the family 
 

This fact sheet is a collaboration of the Center for Arkansas Legal Services and Legal Aid of Arkansas, Inc. These nonprofit organizations provide free legal assistance to eligible Arkansans who meet income, asset, and other guidelines. Legal assistance may also include advice and counsel, brief services, or full representation depending on the situation. For more information about civil legal aid in Arkansas, please visit arlegalservices.org. For information specific to Legal Aid of Arkansas, Inc., visit arlegalaid.org. Apply for services online or by calling 1-800-9-LAW-AID (1-800-952-9243).
The information and statements of law in this fact sheet should not be considered legal advice. This fact sheet is provided as a broad guide to help you understand how certain legal matters are handled in general. Courts may interpret the law differently. Before you take action, talk to an attorney and follow his or her advice. Always do what the court tells you to do.
Content provided by: Legal Aid of Arkansas, Inc.

 

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