ARKANSAS WILLS AND TRUSTS REQUIREMENTS
Statutory Authority.
Wills:ย Ark. Code, Tit. 28, Subtit. 3: Wills (Ark. Code ยงยง28-24-101, et. seq.).
Trusts:ย Ark. Code, Tit. 28, Subtit. 5, Ch. 73 (Ark. Code ยงยง28-73-101, et. seq.).
Arkansas Will Requirements.
Any person who is at least 18 years old and of sound mind can create a valid will in Arkansas.ย Arkansas wills must be in writing and must bear the signatures of the testator and at least two witnesses.ย To serve as a witness to an Arkansas will, an individual must be at least 18 years old and generally competent to act as a witness.ย Signatures of the testator and witnesses must be placed at the end of the document.ย
As an alternative to the testatorโs own signature, a testator may direct someone else to sign the testatorโs name on the testatorโs behalf.ย In that case, the signer must also write his or her name on the will and indicate that he or she signed for the testator.ย Substitute signing must occur in the presence of the witnesses, and the signer cannot also serve as a witness to the will.
Witnesses to an Arkansas will must actually observe the testator sign the will or acknowledge the validity of a prior signature.ย Witnesses must sign the will in the presence of the testator and one another.ย
The Estate Planners Tactical Guide
Essential Legal Protection for Achievers
An Arkansas will is not invalid if witnessed by an โinterested witness,โ which Arkansas defines as someone with a beneficial interest in the will by way of devise. ย However, devises to an interested witness are deemed void to the extent, in the aggregate, total devises to the interested witness exceed the share of the estate the witness would have received had the testator died intestate.ย The provision voiding devises to interested witnesses is inapplicable if the will has at least two other disinterested witnesses.
Arkansas wills need not be notarized, but a will can be proved in probate through a notarized affidavit executed by the willโs witnesses.ย The affidavit can be executed on the witnessโs own initiative, at the testatorโs request prior to the testatorโs death, or after death at the executorโs request.ย The affidavit can be included within the will or affixed to the will as an exhibit, and, when present, serves in place of witness testimony when authenticating the will in probate.
An Arkansas will may incorporate by reference another document in existence when the will is created.ย To incorporate another document, the will must clearly express the intent to incorporate, and the document must be sufficiently identified in the will.ย ย
Arkansas law specifically authorizes creation and incorporation by reference of written statements or lists disposing of tangible personal property not otherwise addressed in the will.ย Often called a โmemorandum of personal property,โ the list must be written in the testatorโs handwriting or signed by the testator and must identify the devised items and intended recipients with reasonable certainty.ย ย
A memorandum of personal property can be created before or after execution of a testatorโs will and can be altered by the testator after its initial creation.ย Importantly, a memorandum of personal property cannot be used to distribute real estate, cash, promissory notes or other evidence of indebtedness, title instruments, securities, or items used in trade or business.
Amendment, Revision, and Revocation of Arkansas Wills.
Arkansas wills can be revoked in whole or in part through execution of a later will that satisfies all formalities required for creation of a will.ย The later will can either expressly revoke the earlier will or revoke the earlier will due to inconsistency.ย If a will is only revoked in part, the unrevoked portions remain valid without need for re-attestation.
Revocation may also be accomplished through physical destruction of a will, such as by burning or tearing, with the intention of revoking the will.ย The physical destruction of the will must be conducted by the testator with the intent of revoking the willโexcept that a testator can direct another person to destroy the will while in the testatorโs presence.
An Arkansas will can also be partially revoked by operation of law in the event of the testatorโs subsequent divorce.ย If a testator is divorced after executing a will, any provisions in favor of the former spouse are deemed to have been revoked.ย ย
If a child is born to a testator after execution of a willโand if the testatorโs will does not specifically mention or provide for the child (whether specifically or as part of a class)โthe child inherits the same share of the estate the child would have inherited had the testator died intestate.ย ย
If an Arkansas will does not mention or provide for a child already born when the will is executed, Arkansas law presumes the child to have been unintentionally omitted.ย An unintentionally omitted child receives a share of the estate as if the decedent parent had died without a will.ย Thus, to disinherit a child of the testator, the testatorโs will must express a clear intent to do so.ย Arkansasโ presumption against disinheritance also extends to living children of a testatorโs decedent child.
Holographic and Oral Wills.
Arkansas recognizes holographic (i.e., handwritten) wills, as long as the will is written and signed entirely in the testatorโs own handwriting.ย To be admitted in probate, a holographic will must be authenticated through the testimony of three credible witnesses, who must attest to the handwriting and signature of the testator.
Nuncupative (oral) wills are not recognized in Arkansas.ย
Arkansas Trust Requirements.
Trusts in Arkansas are principally governed by the Arkansas Trust Code, enacted by the legislature at Ark. Code ยง28-73-101, et. seq.ย An Arkansas trustโs purposes must be lawful, not in violation of the stateโs public policy, and must be possible to achieve.ย In general, a trustโs purpose must be to benefit the interests of the trustโs beneficiaries.ย
A valid trust is only created under Arkansas law if the settlor has adequate capacity to create the trust and expresses an intent to create a trust.ย An Arkansas trust is void to the extent it was induced through fraud, duress, or undue influence.ย The capacity required for creation of a revocable trust is the same as for wills. Arkansas law assumes that trusts are revocable unless the trustโs terms expressly make the trust irrevocable.
An Arkansas trust must have a definite beneficiary who can be ascertained at present or in the futureโsubject to a few exceptions such trusts for charitable purposes, trusts for the care of animals, and certain specific trusts for noncharitable purposes.ย ย
An Arkansas trust must also have a trustee with actual duties to perform.ย Trustees who manage assets are governed by the โprudent investor rule,โ though the rule may be modified, restricted, or eliminated under the terms of the trust.ย An Arkansas trustโs sole trustee cannot also be its sole beneficiary.ย ย
Arkansas trusts can come into existence through transfer of property by a settlor to a trustee (either during life or through a will or other testamentary instrument), a settlorโs declaration that certain property is owned as trustee, or by exercising a power of appointment in favor of a trustee.ย
Though most trusts are evidenced by a written instrument setting forth the trustโs terms (often called a โdeclaration of trustโ), a written instrument evidencing a trust is not mandatory under the Arkansas Trust Code unless specifically required by another statute for the type of trust. For an oral trust to be valid in Arkansas, the creation and terms of the trust must be established by clear and convincing evidence.
Although the general rule is that creditors of a trustโs beneficiaries may attach a beneficiaryโs interest in a trust upon a courtโs approval, Arkansas trust law protects beneficiary interests from attachment if a trust includes a โspendthrift provision.โ Spendthrift provisions restrict the voluntary or involuntary transfer of a beneficiaryโs interest in the trust, and, when present, most creditors cannot attach trust assets until actually distributed to the relevant beneficiary.ย In Arkansas, trust assets can also be protected from beneficiary creditors if distributions are left to the trusteeโs discretion.
Creditors of a revocable trustโs settlor can attach trust assets as long as the settlor remains living (or, upon death, through estate claims).ย With irrevocable trusts, settlorsโ creditors can only reach the maximum amount of trust assets that could be distributed to the settlor or for the settlorโs benefit.
Arkansas trusts terminate upon revocation or expiration under the trustโs own terms, when there is no purpose of the trust remaining to be achieved, or when the trustโs purpose becomes unlawful, impossible, or contrary to public policy.ย If an Arkansas trust is revocable, the settlor can modify or revoke the trust using the method set forth in the trustโs terms, by executing a will or codicil that revokes or amends the trusts or devises property that would otherwise have been subject to the trust, or using another method that clearly and convincingly shows the settlorโs intent to revoke or amend the trust.
A trust may also be modified or terminated by a court upon the petition of the settlor, trustee, and/or beneficiaries.ย Certain trusts may also be modified or terminated upon the consent of the parties.ย When a trust terminates, the trustโs remaining assets are distributed by the trustee as directed by the trustโs terms or otherwise consistently with the trustโs purposesโor as directed by the settlor if the trust was revocable.ย ย
The Estate Planners Tactical Guide
Essential Legal Protection for AchieversSpecial Considerations.
Estate Taxes: Arkansas does not impose any estate tax or inheritance tax.ย Large Arkansas estates may still be liable for federal estate taxes.
Simplified Probate:ย Arkansas law provides a small-estates probate process that, when available, simplifies estate administration.ย To qualify for small-estates probate, the value of a decedentโs estateโnot counting a homestead and any applicable statutory allowances for a surviving spouse or minor childrenโmust not exceed $100,000.ย To request small-estate probate, a beneficiary of the estate files a petition in probate at least 45 days after the decedentโs death and prior to application for appointment of a personal representative.ย The petition provides information about claims against the estate, the value of assets within the estate, and potential beneficiaries.ย If the estate includes real estate, the court may require publication of notice to allow creditors to file claims.
If an estateโs value does not exceed the statutory allowances to which a surviving spouse and minor children are entitled, an Arkansas probate court can order that no administration of the estate is required at all.
Non-Probate Transfers:ย Along with living trusts, Arkansas law offers multiple other options for transfer of assets outside of probate.ย POD (payable-on-death) and TOD (transfer-on-death) designations, which provide for automatic transfer of an asset to a beneficiary upon an ownerโs death, can be used in Arkansas for a variety of assets.ย For instance, POD designations can be added to financial accounts and CDs, and TOD designations can be used with assets like registered securities and brokerage accounts.ย ย
Similarly, some assetsโlike retirement accounts and life insuranceโallow owners to name a beneficiary who automatically takes ownership of the asset upon the original ownerโs death.
Assets co-owned as joint tenants with a right of survivorship automatically transfer to a surviving owner upon the other ownerโs death.ย Arkansas also recognizes tenancy by the entireties, another joint ownership form with a right of survivorship.ย Tenancy by the entireties can only be used for co-ownership of assets by two spouses.ย ย
Transfer-on-Death (TOD) Deeds and Vehicle Titles:ย Arkansas is one of the few states that recognize TOD designations on both real estate deeds (commonly called โbeneficiary deedsโ) and vehicle titles.ย In either case, the TOD designation is added to the deed or title during life, and ownership automatically transfers to the named beneficiary upon the ownerโs death.ย The beneficiary, though, does not acquire present rights over the asset until death actually occurs.ย
Spousal Shares:ย To avoid spousal disinheritance, Arkansas law allows a surviving spouse to claim an elective share against a decedent spouseโs will if the two have been married continuously for more than one year.ย When applicable, the spousal elective share is equal to the interest in the decedentโs real and personal property the surviving spouse would have received had the decedent left no will.
If a decedent spouse is intestate in Arkansas, a surviving spouseโs share of the estate depends upon how long the two have been married and whether the decedent leaves children.ย If there are no children and the couple was married at least three years, the surviving spouse inherits the entire estate.ย The share is reduced to 50% if the spouses were married for less than three years.ย If the decedent leaves children, the decedent spouse receives a one-third interest in the decedentโs personal property and a life estate in one-third of the decedentโs real estate.ย Arkansas also allows a surviving spouse a life estate in a decedentโs homestead if the surviving spouse has no homestead of his or her own.
Creating a will or trust does not have to be difficult or intimidating.ย However, certain circumstancesโlike second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)โcan add a layer of complexity and result in unforeseen long-term consequences.ย Whenever any out-of-the-ordinary issues are present, itโs a good idea to consult with an experienced attorney familiar with and licensed under the laws of the relevant jurisdiction.
