Living Trusts on KATV Channel 7

See Jason Files on KATV's Good Afternoon, Arkansas on November 19, 2018. 

 WATCH HERE

LITTLE ROCK, Ark. (KATV) — Attorney Jason Files describes what a living trust is and in what ways people would use them.

"A living trust is similar to a will, in that it is a way to transfer your property to your heirs. But, it has some advantages-- it is faster; it is private; it doesn't require the court to be involved- it avoids probate; it can be cheaper. It is also different in that a trust takes effect immediately, not on your death. It can be used if you become temporarily disabled- you can have a successor already lined up who will be able to put your assets to use for you.

 What a trust is-- it is a separate entity into which you can put your property. With a revocable or "living" trust, you can take those things out of the trust at any time. You are still in control. It is basically like a treasure chest that you have the key to.

Who is a trust for-- not just for wealthy people. Not right for everybody; if you have a very limited estate there may be an easier way to avoid probate.

What happens at death-- the living trust becomes an irrevocable trust. The successor trustee takes over, and must follow the dictates of the person who created the trust. The creator has much more flexibility in what happens versus distribution through a simple will. If you have a minor child, the trust can continue until they are an adult. If you have an heir who can't handle money, you can keep their inheritance protected."

Get a free consultation by calling 501-374-0616 to talk to an attorney about what is right for your situation. We focus our practice in Pulaski County, Saline County, Faulkner County, Arkansas County, Conway County, Perry County, Pope County, Yell County, and Lonoke County. If you are elsewhere in Arkansas, we can still help, even if that means connecting you to a trusted colleague. Call us today!  

What is Probate in Arkansas?

 Every state has its own laws regarding how to distribute property when someone dies with or without a will. Probate is the legal process to determine what will happen with the person’s property. The person who has died is the “decedent.” 

When someone dies with a will, the will must be “admitted to probate.” In most cases, this must be done within five (5) years of the death. Someone—usually a family member or the person who was appointed by the decedent as the administrator—files a claim in probate court. In most counties in Arkansas, it costs $165 to file (Attorneys are charged $185). Other costs will include attorney fees, the cost to publish notices, administrator bonds, and more. Depending on the size of the decedent’s estate, costs can grow into the tens of thousands of dollars. 

The proceedings are like most other court cases. The filings and any hearings are open to the public. That means anyone can look up the case. In many counties in Arkansas, the filings can be found online at : https://caseinfo.arcourts.gov/cconnect/PROD/public/ck_public_qry_main.cp_main_idx 

Probate can also take a long time. The judge will help resolve any disputes, such as a will contest. Beneficiaries or heirs can contest their share of an estate, or someone could challenge the validity of a will. The court will require an inventory of the estate, and creditors will want what is due (mortgage, e.g.). Some assets, like a piece of art, may have to be appraised to determine value. It can also take time to change the title to assets. Then the estate will be distributed. Of course, the larger the estate, the more complicated the process can become. 

Get a free consultation by calling 501-374-0616 to talk to an attorney about what is right for your situation. Often, it is safer and less expensive to set up a living trust, which can avoid probate altogether. We focus our practice in Pulaski County, Saline County, Faulkner County, Arkansas County, Conway County, Perry County, Pope County, Yell County, and Lonoke County. If you are elsewhere in Arkansas, we can still help, even if that means connecting you to a trusted colleague. Call us today!  

What happens if I die without a will or trust in Arkansas?

If you die without a will in Arkansas, the state decides who your heirs are. Every state has its own laws about passing property when you die. The answer in Arkansas to who gets what depends on your family makeup and who else in your family is alive when you pass away.  

Keep in mind as we go through the following scenarios that the property we’re discussing is “intestate property.” That means it is property that would have been in your will if you had had one. If you have a life insurance policy, for example, you have chosen beneficiaries. When you die, the life insurance proceeds go directly to the beneficiaries and don’t have to go through probate or any other legal process. Intestate property is also usually property you own in your name only. Putting property in a trust can also remove it from your intestate estate. 

Are you married? If so, for how long? If you have been married for longer than three years and don’t have children, then your spouse gets everything. If you have been married for fewer than three years, your spouse gets half of your property and your family (according to the laws of intestate succession) gets the other half. 

If you die with children or other descendants and no spouse, they get the property. If your parents are still alive, but you have no children, your parents will get everything. If you have no children, parents, or a spouse, then your siblings will inherit your property. 

Let’s go back to spouses. Even if you have a will, your spouse is entitled to 1/3 of your property, including getting to use 1/3 of your real property (a house, for example) for the rest of his life if you also have children. If you don’t have children, your spouse would get half of both your real and personal property. 

The distribution of your intestate property can be very complicated depending on your situation. If you have questions, call us to schedule a free consultation. 

 Get a free consultation by calling 501-374-0616 to talk to an attorney about what is right for your situation. We focus our practice in Pulaski County, Saline County, Faulkner County, Arkansas County, Conway County, Perry County, Pope County, Yell County, and Lonoke County. If you are elsewhere in Arkansas, we can still help, even if that means connecting you to a trusted colleague. Call us today!   

What about a small estate in Arkansas?

Many people die without wills, and their property is valued at less than $100,000. Someone who would inherit the property (a distributee) could file an “affidavit of a small estate” so that they could distribute the property without having to go through probate. 

To use the affidavit method, you have to meet these qualifications

  • There may be no pending request for a personal representative or one that has been granted; 

  • At least forty-five (45) days have passed since the person died; 

  • ALL property must we worth less than $100,000, except that 

  • There may be values that can be excluded from the total when determining the value of the estate, such as allowances for minor children by law. 

If the estate qualifies, these are the basic steps

  1. A Distributee (there could be more than one) files an affidavit in the probate clerk’s office. The affidavit must state that: 

  2. There are no unpaid claims or demands; 

  3. DHS provided no benefits or that it was reimbursed pursuant to state and federal law; 

  4. A list of the personal property, including descriptions and values; 

  5. Legal description and value of any real property; 

  6. Names and addresses of everyone who has possession of the real property; 

  7. Names and addresses of anyone who has possession or resides in the real property; and 

  8. Names, addresses, and relationships of anyone who will receive the property. 

  9. The clerk will file and certify the affidavit. It costs $25.00 to file the affidavit, and $5.00 for each certified copy. 

  10. If anyone owes money, has possession of the property, or is an agent of any interest, debt, property, or right of the decedent, they should get a certified copy of the affidavit. 

  11. If the estate includes real property, the Distributee(s) MUST publish a notice of the death and affidavit within thirty (30) days of filing the affidavit. 

  12. Anyone who has a claim to or against the estate has three (3) months from the first date of publication to make their claim, or lose that chance forever. 

The small estate will not need approval from a judge. It is a fairly simple process, but must be followed exactly.  

Get a free consultation by calling 501-374-0616 to talk to an attorney about what is right for your situation. We focus our practice in Pulaski County, Saline County, Faulkner County, Arkansas County, Conway County, Perry County, Pope County, Yell County, and Lonoke County. If you are elsewhere in Arkansas, we can still help, even if that means connecting you to a trusted colleague. Call us today!