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Do I Need a Last Will?

If you die without a last will, your estate is considered “intestate.” Being intestate means the state decides how to distribute your property amongst your heirs. Arkansas has its own set of intestacy rules, found in Arkansas Ann. Code § 28-9-214. The most surprising things clients learn about the law are:

  • Not all assets pass to a surviving spouse
  • Surviving spouses in marriages less than three years are treated less favorably than longer marriages

What is a Last Will?

A last will and testament is one of the most common estate planning documents available today. A will controls who receives your property, who your children’s guardian will be, as well as who manages your estate after your death. A will only has control over your probate assets and does not affect items with a listed beneficiary or any jointly held assets unless the beneficiary predeceases you. Generally, everyone should have at least a will to avoid unnecessary litigation and make their wishes clearly known. If you have had a will executed in another state, we highly recommend a consultation to review that will under Arkansas law. The probate code of Arkansas has very strict requirements that do not apply to other states.

What is the Purpose of a Last Will?

A will is used to dictate how your probate assets are allocated upon your death. A will has language addressing property ownership but should also address asset protection. Wills can also name a guardian for your minor children if needed.

If you do not have a will, the state’s intestacy rules will dictate how your assets are allocated, and your wishes may be ignored. Having a will allows you to select who receives your assets instead of the state. Though it is possible for you to allocate some assets through beneficiary designations or joint ownership, a will gives you much more control and flexibility. A will also allows you to leave assets in a trust if you have one established, which can shelter your assets from creditors and lawsuits.

The oldest last will ever found was discovered on a parchment near Kahun, Egypt, in 1890 by an English archaeologist, William “Flinders” Petrie. The parchment actually included two last wills, written around 1797 B.C. Interestingly, the last will of Uah named a guardian for his children and forbade his wife from destroying the houses he received from his brother. Not much has changed in 400 years! Today, our clients are also concerned about their children and making sure family doesn’t squander their estates.

What Are The Requirements That Make a Last Will Legal?

Each state has different rules covering a will’s execution, but Arkansas has the following general guidelines:

  1. Eighteen Years of Age and Sound Mind: The person signing the will can’t be mentally ill or disabled and must be acting of their own free will, without undue influence.
  2. Witnesses: Two witnesses are required to watch the signing of a will and then sign as witnesses. The rules about who may or may not serve as witnesses can vary.

In most states, including Arkansas, you will want your will to include a Self-Proving affidavit. This page is notarized and allows the executor to file the will without the witnesses being present. If a will is not executed properly, it can slow down the probate process, require the attorney to locate witnesses, and lead to a contest of your wishes. When our Arkansas estate planning law firm executes your estate plan, you can have the peace of mind it will be executed according to legal requirements.

TIP:  “Sound mind” is often a concern for families. As estate planning and elder law attorneys, we are given broad discretion to give testators (individuals who sign a last will) the benefit of the doubt. A testator may have diminished capacity and still be qualified to sign estate planning documents. Often individuals with capacity issues may have good days and bad days. We offer free rescheduling to accommodate our clients’ needs including scheduling morning or afternoon appointments.

Do I Need An Attorney To Draft My Will?

We strongly advise using an attorney! As an Arkansas estate planning law firm, we have seen so many families destroyed by bad planning. Most individuals who do their own estate plans have good intentions. They may use:

  • Online forms
  • A holographic (hand-written) will

Online forms are often viewed as a cheaper alternative to legal services. Unfortunately, these companies often fail to give you the BEST advice. Over the years, our firm has encountered a number of errors and incomplete estate plans created by online companies. There is simply no substitute for an attorney’s advice and counsel. Your documents need to be tailored to your family’s situation and comply with state laws.

Holographic, or hand-written, last wills are the second alternative. There are often many issues associated with these types of documents. The most common errors are:

  • Incomplete family information
  • Failure to use the correct terms
  • Improper words of conveyance

Bottom line, your estate planning documents will be the last documents of your life and include your entire estate and final wishes. McClelland Law Firm, P.A. believes in the value of proper planning. If you live in White County, Pulaski County, Saline County, in cities like Benton, Sherwood, and Little Rock, AR, we help you get started with a well-drafted will.

TIP:  A Last Will and Testament does NOT avoid probate. See revocable trusts. However, nearly every estate plan includes some type of will.

At McClelland Law Firm, we believe that limiting our practice areas provides the greatest value to our clients. To us, value means providing exceptional service and efficient processes for each of our practice areas.

We are committed to compassionate representations, especially as it relates to elder law. No one should feel pressured, controlled, or “talked down” to in any meeting. Every client deserves to be heard and understood.

Click below to view our initial intake form.
Sherwood Office:

135 Shadow Oaks Drive
Sherwood, Arkansas 72120

Searcy Office:

202 N. Locust Street
Searcy, Arkansas 72143

Benton Office:

17328 I-30 Suite 5
Benton, Arkansas 72019

McClelland Law Firm, P.A. is here to help you and your loved ones understand probate and trust administration, estate planning, Medicaid planning, crisis planning, guardianship, and elder law. Our Benton, Sherwood, and Searcy law offices welcome you to contact us and learn how we can help meet your elder law legal matters in White County, Pulaski County, Saline County, and throughout Arkansas.

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