Probate FAQ

Will and testament

Frequently Asked Questions About Probate

For quick answers to your probate questions, check out our Probate FAQ below. For more information or to schedule a FREE consultation, call The Law Office Of Paul D. White P.A. today!

Common Questions And Answers

What is the personal representative? 
In Arkansas, in the administration of an estate, the personal representative is the person who is directly responsible for the proper settlement of the estate. If someone dies with a will (testate), then the personal representative is named by the will-maker. If a person dies without a will (intestate), then an interested party can petition the court to be appointed as the personal representative.

Which estates are subject to probate? 
Whenever a property owner dies in Arkansas, their estate must go through a legal proceeding in order to settle the estate. In Arkansas, this legal proceeding is referred to as "administration" whether the person dies with or without a will.

Where do probate proceedings take place? 
Administration must take place in the Probate Division of the Circuit Court of the county where the deceased person resided. If the person died while living in another state, then an administration proceeding must take place in the Arkansas County where the deceased held property.

Should a personal representative hire an attorney? 
The Arkansas Bar Association states that two persons are essential in the administration of an estate, and they are the personal representative and their attorney. There are many duties on the personal representative; however, he or she may incur serious personal responsibility if, when acting in good faith, they have a misunderstanding on how certain duties are discharged. For this reason, it's very important that he or she engage an attorney who can help prevent costly mistakes.

Who can be a personal representative? 
Under Arkansas law, anyone who is age 21 or older, of sound mind, and bondable, can be a personal representative. Banks and trust companies can also serve as personal representatives.

What are the basic functions of administration? 
The basic functions of administration are to: 1) collect the property and assets, 2) protect the assets of the estate, 3) pay all debts and taxes, 4) determine who is entitled to benefit from the estate, and 5) after debts are paid, distribute the remaining assets to the beneficiaries.

Who has title to the property? 
As the personal representative, legal title to all personal property goes to you. You will also have control over the real property, but you won't have legal title to it. However, before you lease, mortgage, or sell the real or personal property, you must obtain court approval unless you were specifically authorized in the will to do so.

How do I prove my authority? 
Your authority to act will be demonstrated through the court signed-and-sealed 
Letters Testamentary or Letters of Administration. The court will provide additional copies upon request and you should take a copy with you each time you conduct 
estate-related business.

Do I have to post bond? 
Since the personal representative frequently deals with substantial property and funds, the court typically requires that a bond be posted to secure the performance of his or her duties. The court shall set an amount based on the estimated value of the estate. While some wills may exempt the personal representative from giving bond, the court may still require one. The cost of the bond is an expense on the estate and it is subject to court approval.
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