Arkansas Wills vs. Trusts
Estate planning in Arkansas can be straightforward with the right approach. For Arkansas residents weighing the benefits of wills versus trusts, recognizing their distinct advantages and limitations is crucial for minimizing family complications, reducing costs, and avoiding unnecessary delays. This detailed overview examines Arkansas’s specific estate planning regulations and provides guidance to help ensure your assets are distributed according to your intentions.
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Arkansas Will Requirements
An Arkansas Last Will and Testament should include:
- Age and Capacity: Testator must be “of sound mind” and at least 18 years old
- Format: Must be in writing
- Signature: Must be signed by the testator at the end of the document
- Witnesses: Must be signed by at least two witnesses (18+ years old) who actually observe the testator sign or acknowledge a prior signature
- Witness Signatures: Witnesses must sign at the end of the will in the presence of the testator and one another
Alternative Signing Options
As an alternative to the testator’s own signature, a testator may direct someone else to sign the testator’s name on the testator’s behalf. If this option is used:
- The substitute signer must also write his or her own name on the will
- The substitute signer must indicate that he or she signed for the testator
- The substitute signing must occur in the presence of the witnesses
- The substitute signer cannot also serve as a witness to the will
Interested Witnesses
An Arkansas will is not invalid if witnessed by an “interested witness,” which Arkansas defines as someone with a beneficial interest in the will by way of devise. However:
- Devises to an interested witness are deemed void to the extent they exceed what the witness would have received if the testator died intestate
- This limitation doesn’t apply if the will has at least two other disinterested witnesses
Self-Proved Wills
Arkansas wills need not be notarized, but a will can be proved in probate through a notarized affidavit executed by the will’s witnesses. This affidavit:
- Can be executed on the witness’s own initiative
- Can be executed at the testator’s request prior to death
- Can be executed after death at the executor’s request
- Can be included within the will or affixed as an exhibit
- Serves in place of witness testimony when authenticating the will in probate
Incorporation by Reference
An Arkansas will may incorporate by reference another document in existence when the will is created. To incorporate another document:
- The will must clearly express the intent to incorporate
- The document must be sufficiently identified in the will
Memorandum of Personal Property
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. This “memorandum of personal property”:
- Must be written in the testator’s handwriting or signed by the testator
- Must identify the devised items and intended recipients with reasonable certainty
- Can be created before or after execution of the will
- Can be altered by the testator after its initial creation
Important Limitation
A memorandum of personal property cannot be used to distribute:
- Real estate
- Cash
- Promissory notes or other evidence of indebtedness
- Title instruments
- Securities
- Items used in trade or business
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Amendment, Revision, and Revocation of Arkansas Wills
Revoking an Arkansas Will
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. The later will can:
- Expressly revoke the earlier will, or
- Revoke the earlier will due to inconsistency
- Physical destruction of a will, such as by burning or tearing, with the intention of revoking the will
- Must be conducted by the testator with intent to revoke
- A testator can direct another person to destroy the will while in the testator’s presence
If a will is only revoked in part, the unrevoked portions remain valid without need for re-attestation.
Automatic Revocation by Divorce
An Arkansas will can also be partially revoked by operation of law in the event of the testator’s subsequent divorce. If a testator is divorced after executing a will, any provisions in favor of the former spouse are deemed to have been revoked.
After-Born Children
If a child is born to a testator after execution of a will—and if the testator’s will does not specifically mention or provide for the child (whether specifically or as part of a class)—the child inherits the same share of the estate the child would have inherited had the testator died intestate.
Unintentionally Omitted Children
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
- An unintentionally omitted child receives a share of the estate as if the decedent parent had died without a will
- To disinherit a child of the testator, the testator’s will must express a clear intent to do so
- Arkansas’ presumption against disinheritance also extends to living children of a testator’s decedent child
Need help creating the right estate plan for your Arkansas family?
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Holographic and Oral Wills
Holographic Wills
Arkansas recognizes holographic (i.e., handwritten) wills, as long as the will is written and signed entirely in the testator’s own handwriting. 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.
Oral Wills
Nuncupative (oral) wills are not recognized in Arkansas.
Arkansas Trust Requirements
Trusts in Arkansas are principally governed by the Arkansas Trust Code, enacted by the legislature at Ark. Code §28-73-101, et. seq.
Requirements for a Valid Arkansas Trust
For a trust to be valid under Arkansas law:
- The settlor must have adequate capacity to create the trust (same capacity standard as for wills)
- The settlor must express an intent to create a trust
- The trust’s purposes must be lawful, not in violation of public policy, and possible to achieve
- The trust’s purpose must be to benefit the interests of the trust’s beneficiaries
- The trust is void to the extent it was induced through fraud, duress, or undue influence
Arkansas law assumes that trusts are revocable unless the trust’s terms expressly make the trust irrevocable.
Required Trust Elements
- Beneficiary: An Arkansas trust must have a definite beneficiary who can be ascertained at present or in the future (with exceptions for charitable trusts, pet trusts, and certain noncharitable purpose trusts)
- Trustee: An Arkansas trust must have a trustee with actual duties to perform (the sole trustee cannot also be the sole beneficiary)
Trustee Responsibilities
Trustees who manage assets are governed by the “prudent investor rule,” though the rule may be modified, restricted, or eliminated under the terms of the trust.
Trust Creation Methods
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 settlor’s declaration that certain property is owned as trustee
- Exercising a power of appointment in favor of a trustee
Oral Trusts
Though most trusts are evidenced by a written instrument setting forth the trust’s terms (often called a “declaration of trust”), 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.
Spendthrift Provisions and Creditor Protection
Although the general rule is that creditors of a trust’s beneficiaries may attach a beneficiary’s interest in a trust upon a court’s approval, Arkansas trust law protects beneficiary interests from attachment if a trust includes a “spendthrift provision.”
- Spendthrift provisions restrict the voluntary or involuntary transfer of a beneficiary’s interest in the trust
- When present, most creditors cannot attach trust assets until actually distributed to the relevant beneficiary
- In Arkansas, trust assets can also be protected from beneficiary creditors if distributions are left to the trustee’s discretion
Creditor Access to Trust Assets
- Creditors of a revocable trust’s settlor can attach trust assets as long as the settlor remains living (or, upon death, through estate claims)
- With irrevocable trusts, settlors’ creditors can only reach the maximum amount of trust assets that could be distributed to the settlor or for the settlor’s benefit
Trust Termination
Arkansas trusts terminate upon:
- Revocation or expiration under the trust’s own terms
- When there is no purpose of the trust remaining to be achieved
- When the trust’s purpose becomes unlawful, impossible, or contrary to public policy
Modifying or Revoking a Trust
If an Arkansas trust is revocable, the settlor can modify or revoke the trust by:
- Using the method set forth in the trust’s terms
- Executing a will or codicil that revokes or amends the trust or devises property that would otherwise have been subject to the trust
- Using another method that clearly and convincingly shows the settlor’s 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. Certain trusts may also be modified or terminated upon the consent of the parties.
When a trust terminates, the trust’s remaining assets are distributed by the trustee as directed by the trust’s terms or otherwise consistently with the trust’s purposes—or as directed by the settlor if the trust was revocable.
Special Considerations
Estate Taxes
Arkansas does not impose any estate tax or inheritance tax. Large Arkansas estates may still be liable for federal estate taxes.
Simplified Probate Options
Arkansas law provides a small-estates probate process that simplifies estate administration when available.
Small-Estates Probate
Eligibility:
- The value of the decedent’s estate must not exceed $100,000 (not counting homestead and statutory allowances for surviving spouse or minor children)
Process:
- A beneficiary files a petition in probate at least 45 days after the decedent’s death and prior to application for appointment of a personal representative
- The petition provides information about claims against the estate, the value of assets within the estate, and potential beneficiaries
- If the estate includes real estate, the court may require publication of notice to allow creditors to file claims
No Administration Required
If an estate’s 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
Along with living trusts, Arkansas law offers multiple other options for transfer of assets outside of probate:
TOD Deeds and Vehicle Titles
Arkansas is one of the few states that recognize TOD designations on both real estate deeds (commonly called “beneficiary deeds”) and vehicle titles. In either case:
- The TOD designation is added to the deed or title during life
- Ownership automatically transfers to the named beneficiary upon the owner’s death
- The beneficiary does not acquire present rights over the asset until death actually occurs
Need help creating the right estate plan for your Arkansas family?
Our estate planning specialists can help you navigate Arkansas’s unique laws and create a personalized strategy.
Wills vs. Trusts: Comparison
| Feature | Wills | Trusts |
|---|---|---|
| When It Takes Effect | After death | Can be immediate (living trust) or after death (testamentary trust) |
| Probate Process | Requires probate | Assets in trust avoid probate |
| Privacy | Public record | Generally private |
| Challenges | Can be challenged in probate court | More difficult to challenge |
| Cost to Create | Generally less expensive | Usually more expensive |
| Ongoing Administration | None until death | May require ongoing management |
| Protection During Incapacity | None (requires separate power of attorney) | Can provide management if grantor becomes incapacitated |
| Alternative Transfer Methods | Beneficiary deeds and TOD vehicle titles | Not needed if trust is properly funded |
When It Takes Effect
Wills: After death
Trusts: Can be immediate (living trust) or after death (testamentary trust)
Probate Process
Wills: Requires probate
Trusts: Assets in trust avoid probate
Privacy
Wills: Public record
Trusts: Generally private
Challenges
Wills: Can be challenged in probate court
Trusts: More difficult to challenge
Cost to Create
Wills: Generally less expensive
Trusts: Usually more expensive
Ongoing Administration
Wills: None until death
Trusts: May require ongoing management
Protection During Incapacity
Wills: None (requires separate power of attorney)
Trusts: Can provide management if grantor becomes incapacitated
Alternative Transfer Methods
Wills: Beneficiary deeds and TOD vehicle titles
Trusts: Not needed if properly funded
Conclusion
Creating a will or trust does not have to be difficult or intimidating. However, certain circumstances—like second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)—can add a layer of complexity and result in unforeseen long-term consequences. Whenever any out-of-the-ordinary issues are present, it’s a good idea to consult with an experienced attorney familiar with and licensed under the laws of Arkansas.
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Frequently Asked Questions
Do I need a lawyer to create a will in Arkansas?
While Arkansas law doesn’t require an attorney to create a valid will, consulting with an estate planning lawyer is highly recommended, especially for complex situations. A properly executed will must meet specific requirements, and an attorney can help ensure your will is legally sound and reflects your wishes accurately. Arkansas has unique requirements for witness signatures and interested witnesses that can invalidate certain provisions if not handled correctly.
What happens if I die without a will in Arkansas?
If you die without a will in Arkansas (intestate), state laws determine how your assets are distributed. Your spouse’s share depends on how long you were married and whether you have children. With no children and a marriage of at least three years, your spouse inherits everything. With children, your spouse receives one-third of personal property and a life estate in one-third of real estate. The remainder goes to children or other relatives according to Arkansas’s intestacy laws. Without a will, you also lose control over guardianship decisions for minor children.
Are handwritten wills valid in Arkansas?
Yes, Arkansas recognizes holographic (handwritten) wills. For a handwritten will to be valid in Arkansas, it must be entirely in the testator’s handwriting and signed by the testator. Unlike traditional wills, holographic wills don’t require witness signatures. However, to be admitted to probate, a holographic will must be authenticated by the testimony of three credible witnesses who can verify the testator’s handwriting and signature. While holographic wills are legally valid, they’re often more susceptible to challenges than formally executed wills.
What makes Arkansas’s beneficiary deed law unique?
Arkansas is one of only about half of U.S. states that allow transfer-on-death (TOD) deeds for real estate, commonly called “beneficiary deeds.” What makes Arkansas particularly unique is that it also allows TOD designations for vehicle titles – something many states don’t permit. These tools provide Arkansas residents with effective alternatives to probate without the expense of creating a trust. With a beneficiary deed, you retain complete control of your property during your lifetime, but upon death, ownership transfers automatically to your named beneficiary without going through probate court.
How does Arkansas protect children from disinheritance?
Arkansas law strongly protects children from unintentional disinheritance through its pretermitted heir statute. If a will doesn’t mention or provide for a child born before the will was made, Arkansas presumes this omission was unintentional, and the child receives the same share they would have received if there was no will. This protection also extends to children born after the will was executed and to the living children of a testator’s deceased child. To intentionally disinherit a child in Arkansas, the will must explicitly state the intent to exclude that child; simply leaving them nothing is not sufficient.
What is unique about Arkansas’s spousal elective share?
Arkansas’s spousal elective share is distinctive because it only applies if the couple has been continuously married for more than one year, unlike many states that apply elective share rights immediately upon marriage. Additionally, the calculation of Arkansas’s elective share is straightforward—it equals exactly what the spouse would have received had the decedent died without a will (intestate). This means the amount varies depending on whether there are surviving children and the length of the marriage, ranging from the entire estate (for marriages over three years with no children) to one-third of personal property plus a life estate in one-third of real property (when there are surviving children).
Can I use a trust to avoid probate in Arkansas?
Yes, a properly established and funded revocable living trust is an effective way to avoid probate in Arkansas. Assets properly transferred to your trust during your lifetime don’t go through probate upon your death. Instead, they’re distributed according to the trust’s terms by your successor trustee. This provides several advantages: privacy (unlike probate, which is public record), potential cost savings, faster distribution to beneficiaries, and avoidance of Arkansas’s probate process. However, to be effective, you must formally transfer ownership of your assets to the trust—simply creating the trust document isn’t sufficient to avoid probate.
What is Arkansas’s small estate procedure?
Arkansas offers a simplified probate process for small estates valued at $100,000 or less (not counting homestead and statutory allowances). This procedure allows a beneficiary to file a petition at least 45 days after death but before a personal representative is appointed. The process typically requires less court involvement, fewer filings, and can be completed more quickly than standard probate. If the estate includes real property, notice to creditors may be required. For even smaller estates that don’t exceed the statutory allowances for a surviving spouse and minor children, an Arkansas court may dispense with administration entirely—effectively allowing assets to transfer with minimal court involvement.
How do interested witnesses affect an Arkansas will?
In Arkansas, having an “interested witness” (someone who benefits from the will) doesn’t invalidate the entire will, but it can affect what that witness receives. Any devise to an interested witness is void to the extent it exceeds what the witness would have received if you had died without a will—unless your will has at least two other disinterested witnesses. This provision protects against potential fraud or undue influence from witnesses who stand to benefit from the will. To avoid potential complications, it’s best practice to use witnesses who don’t have any interest in the will’s provisions when executing your Arkansas will.
