Springdale Office:

Country Club Center

4700 S. Thompson,

Suite C-103

Springdale, AR

479-750-1101

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Bryant Office:

4500 Hwy 5 N. Suite 6

Bryant, AR 72022

501-847-1311

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Fort Smith Office

3200 Rogers Ave. Suite 5

Fort Smith, AR

479-434-3531

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Avoiding Probate

At the Elder Law Practice of H. Todd Whatley, Todd and his staff want to do everything that they can to help families through all of the legal aspects of losing a loved one without adding more stress and heartache to an already very difficult time. If your estate goes through probate, it can be an expensive, time consuming, and burdensome process to your family. That is why we do everything that we can to avoid probate and that difficult process.

WHAT IS PROBATE?

Put simply, probate is the legal process of getting a deceased person's assets out of their name. These assets will be transferred according to the wishes expressed in the deceased person's will, or if there is no will, then by the rules of the State of Arkansas, which will in most cases distribute assets to the closest living relatives first and go down a list according to the law. Whether there is a will or not, the distribution of these assets is done by the court, requires filing fees to be paid, and in the end, depends on a judge's schedule. These things can make the process very time consuming and expensive, and going through probate can easily become a substantial burden on the family of the deceased. That is why we want to help you avoid probate whenever possible.

HOW CAN I AVOID PROBATE?

Probate can be avoided by making sure that assets are not in your name at your death. Please understand that a Last Will and Testament will NOT protect you from going through probate. Your will simply tells the judge how you want your assets to be divided as it goes through probate.

You can avoid probate in a number of ways.

• The most popular method of avoiding probate is by creating a Trust.

  • A trust is a legal entity that can hold property. We transfer all allowed property into the trust so that it is not owned by you at the time of death.

  • Since property is not owned by you at death, it does not have to go through probate. Also, if you have a taxable estate, then a trust can save you hundreds of thousands of dollars in taxes if done correctly.

  • This sounds great, but trusts are not the “end all” they are touted to be. If they are needed, they are beautiful. However, they are more expensive at the beginning and they must be carefully maintained through the years.

  • If you do not have a taxable estate and you have a simple distribution plan, you can avoid probate in other ways that are much cheaper (and involve very little attorney participation).

• Payable on death (or sometimes called Transfer on Death) designations of bank accounts is a great way to make sure assets transfer to someone else at your death.

• We can also do about the same thing with your home by creating a Life Estate Deed which passes the house to someone at your death. However, there are some significant Medicaid issues with that process. So transfer the deed only with proper advice from an attorney that has a good understanding of Medicaid.