Common Misconceptions About Probate
April 11, 2023
If you’ve lost a loved one or have been named a beneficiary in someone’s will and you get notification that the will is going through probate proceedings, you may wonder what that entails. In basic terms, it is a legal means to make sure that the decedent’s estate—assets held in his or her name—are collected and income taxes and debts are paid.
The final step in probate is to distribute the assets assigned in the will to beneficiaries. Depending on the size of the estate, probate can take months, perhaps even more than a year while everyone is waiting for what’s been left to them. It can also get costly if there are challenges to the will. Perhaps one family member feels a sibling unduly influenced the parent when the will was written.
Probate also applies when someone dies without a will, which is called dying intestate. In that case, the court will appoint someone to be executor of the estate to oversee probate, and the state’s laws of intestacy will inform who gets what at the end of the process. In the case of probate involving a will, someone will generally have been named as the will-writer’s personal representative, and he or she will become executor.
If you have questions or concerns about the probate process, whether as an executor or a beneficiary, in or around Fayetteville or Fort Smith, Arkansas, contact our probate attorney at the Bond Law Office. People often have confusing notions about probate, and we stand ready to clear up any misconceptions, as well as guide you through probate if you’re the executor.
Common Misconceptions About the Probate Process
Probate takes place in the Circuit Court in the county in which the person died. If there’s a will, the personal representative will need to present the death certificate and will to the court to begin proceedings. If there is no will, a family member or loved one can bring the death certificate to the court and petition for probate.
Probate involves filing a lot of forms during the process, and the person functioning as executor may find these forms challenging. That’s why it’s usually a good idea to have an attorney help with administration and be ready for any challenges to the will that arise.
That being said, it’s important to avoid common misconceptions. Here are some of these misunderstandings:
If I have a will, I won’t have to go through probate.
With or without a will, your estate will likely have to go through probate. The best approach to avoiding probate is to establish a living trust, which is administered outside of probate court proceedings.
Probate means the state is getting all my assets.
Debts and taxes will have to be honored from your assets, but in Arkansas, there is no estate tax and the federal estate tax doesn’t kick in until your assets exceed $12.92 million, or $25.84 million per married couple. If you die without a will, the court will rely on the state’s laws of intestacy to determine how the assets are distributed. The first beneficiary is the spouse, followed by the children and grandchildren, then the parents, followed by siblings, grandparents, aunts, and uncles. It depends on who is still alive, but the distribution follows in that order.
The probate process takes years to complete.
This is generally not the case. Though the process gives creditors time to pursue their claims, meaning probate isn’t going to be over in a few weeks, most proceedings can be completed in a matter of six to nine months. Larger estates, however, can lengthen the process, as can challenges to the will.
Estate taxes will consume most of my assets.
As mentioned before, there is no estate tax in Arkansas, and the federal threshold for any tax to apply is extremely high.
I don’t need an attorney to go through the probate process.
If you’re the executor, it is highly recommended to rely on the guidance and assistance of an attorney experienced in probate administration. The forms can be overwhelming, and if creditors or beneficiaries present challenges, you probably will need an attorney to help resolve everything.
Don’t Face Probate Alone. Call Us.
As an executor, you will face many tasks and challenges you may never have faced before, depending on your career path. We at the Bond Law Office will gladly assist you in carrying out your tasks. Even if you’re just a family member or beneficiary concerned about the probate process, we will be happy to answer your questions and provide any legal assistance you may require.
If you’re facing probate from the loss of a loved one in or around Fayetteville or Fort Smith, reach out immediately. Your first consultation is free. We also proudly serve clients in the Arkansas River Valley, and in the communities of Harrison, Eureka Springs, Clarksville, Waldron, Mena, and Van Buren.