What is a will? A will is a legal document in which you declare who will get your real and personal property. This can include expensive items like your car or vacation property, as well as small, sentimental items like photos and books. In your will you will name a person who is directed to follow your instructions for transferring your property. This person is referred to as an executor, because he or she is responsible for executing your wishes. One thing a will cannot do is protect your children in the form of assigning them guardianship. Although you can state your wishes, the Courts do not have to follow your wishes for who is to care for your children. Anyone wanting to have guardianship of your children must file papers with the Court asking that guardianship be granted. If you want to protect your minor children, see our trusts page to see how a trust can help your family.
What happens if I die without a will? When someone dies without a will, the aftermath is absolutely horrible. Not only are you dealing with the grief of losing a loved one, but you also lose control of any and all of their worldly possessions. Without a will, bank accounts are frozen and a state law determines what is done with property of any kind—real or personal. In Arkansas, children always receive all of the property when we die without a will. That means that if you are married and have children, your spouse does not receive anything except a portion of a life estate in real property. This means your spouse can live in the home for the rest of their life, but the ownership of the home will pass to the children when the spouse dies.
If you have a valid will, the Courts will use the Probate process to transfer your property according to directions you stated in your will. In Arkansas anyone 18 years of age or older can make a will but to be valid it must be signed in front of two disinterested witnesses. At our firm, we actually use three witnesses and a notary. Some states require three witnesses and by adding that extra witness, our documents are valid in all states. In addition, a notary is used because our documents include an affidavit or an attestation, which means that when the will is produced after death, Arkansas courts will waive the requirement to have the witnesses sign another document stating that they did, in part, witness the original will.
Do I need an attorney for my will? Arkansas recognizes certain “do-it-yourself” wills called holographic wills. To be a holographic will, it must be written entirely in your own handwriting and must be signed and dated. There are still problems with holographic wills and they should be used only in rare circumstances. And example is if you find yourself in a life threatening situation and you have not gotten around to planning for your family’s future. That would be the time to grab a sheet of paper and write out your wishes and sign and date it. The problem with a holographic, handwritten will is that Arkansas law requires that the handwriting and intent be proven. And the law goes further to state that proof must be from three disinterested witnesses who can state that the signature is genuine. So that means any relative—those who are most likely to know the deceased best—cannot testify to the signature. By definition, relatives are potential heirs and are therefore not disinterested.
The short answer is yes, you need a will. Most of us start thinking about a will once we have children or once we begin to acquire any assets. But if we die without a will, Arkansas law decides how our possessions will be divided. On the surface, that may seem fine—one of your relatives… Read More