Arkansas Estate, Business, and Property Law

When discussing benefits of a Revocable Trust, one subject often covered is the potential to avoid Attorneys’ Fees and Costs associated with Probate.  Simply put, if a person dies without a Trust or other proper Estate Planning, as covered here, Probate will generally be necessary to pass assets to the heirs of the decedent.  (Note – Arkansas Law allows for a “Small Estate” Procedure for Estates under $100,000, to be covered in a future post on this Blog).  Probate involves the initiation of a Court proceeding, filed in Circuit Court in the county of death.  A Judge is appointed to the case, and the Arkansas Probate Code mandates the process pursuant to which assets are collected and distributed to heirs and/or creditors of the Estate.

Under Arkansas Law, both the Personal Representative (the party named in your Will or appointed by the Court to handle your Estate) and the Attorney may be awarded a fee for the work associated with the Probate.  (See here for a copy of the applicable Arkansas Law authorizing fees and costs associated with Probate).   In the event of a $200,000 Estate, the applicable allowable Attorneys’ Fee is $6,050.  For a $400,000 Estate, the allowable fee can reach $11,550.  Again, this is in addition to the fee allowed for your Personal Representative.  Filing fees in excess of several hundred dollars are also associated with opening the case, publishing notice to creditors, etc.   Alternatively, a Trust can be established for a fraction of the cost, which avoids Probate entirely and provides additional benefits as discussed elsewhere in this Blog.

When counseling parties who are drafting their Will and/or Trust, I often advise that they should consider writing a letter to their heirs, meant to be read after death, advising of specific issues that will help their family with the Estate.  This letter can also be used to accomplish the provisions of Ark. Code Ann. Section 28-25-107 (1987), an Arkansas Law which allows parties to make a list of personal items of property, with designated recipients, attached to their Will subsequent to its execution.  Specifically, the law allows parties, after they have completed their Will, to create a handwritten or signed list of items they would like to specifically pass to certain member of their family or estate.  Using this process, a person can move forward with drafting a Will even at a younger age, without having to worry about changing the Will in later years simply because they acquire property that may not have covered in the earlier Will.

Writing this letter may assist with even more important issues, as well.  The letter clarifies requests to be carried out upon your death and provides essential information, thereby relieving surviving family members of needless worry and speculation.  Below is an example of items you may wish to consider:

“Dear Loved Ones,

*(obviously the letter will likely start with an emotional message to your family.  Following these sentiments, the “business” part of your letter will begin):

Please allow this letter to serve as the correspondence contemplated by Ark. Code Ann. § 28-25-107 (1987), which allows me to make disposition of tangible personal property by attaching or associating with my Will subsequent to its execution a statement and list signed by me designating the devisees of items of specific tangible personal property.  I desire to leave my coin collection to my Nephew, ____.  I desire to leave all of my artwork in my home to my Wife, ____.  (You can list as many items as you would like, here, whether or not they were included in your Will).

Further, I direct my Executor to a list of passwords and computer related information left in my safety deposit box with ABC Bank.  This list also includes information concerning my various investment accounts, banking accounts, and other financial data necessary to probate my Estate.  (We live in a complicated world, and all of your electronic data will need to be accessed after your death. So, make sure you have  a list of websites, blogs, and any other electronic sources (with passwords) you frequently access, and leave this where your Executor can find it upon your death). 

My safety deposit box also includes copies of my will; birth, baptismal, and marriage certificates; communion and confirmation certificates; diplomas; military papers; naturalization papers; and birth certificates for my children.  It also includes copies of tax returns, leases, and additional personal financial data.  Finally, it contains paperwork associated with the two businesses discussed further below.

I am a one-third owner of XYZ Business located in Little Rock, Arkansas.  My Partners and I have drafted Articles of Incorporation and Bylaws which specifically detail how my interest in the business should be handled upon my death.   Please work with my Partners to effectuate the terms of these agreements, which allow for my partners to purchase the business from my heirs based upon a formulated value agreed upon by the partnership as a whole. The line of credit for the business should be re-financed to remove my name.  You will find additional paperwork associated with my business in the bottom left-hand drawer of the desk in my office. 

I own investment property in North Little Rock, Arkansas. It is owned in a LLC, and the co-owner and I have completed an Operating Agreement which states that in the event of my death, my family will receive a liquidated payment in an amount specified by the agreement.

I have pre-arranged funeral services with ABC Funeral Home.  It is my desire that I be buried next to my parents.   I would prefer that in lieu of flowers, donations are made to the Humane Society of Little Rock.  Please ensure that my obituary mentions by name all of my children and grand-children, including any that may have pre-deceased me. 

Please notify the following organizations to which I belong of my death:  Little Rock Chamber of Commerce, XYZ Professional Association, and the Board of Directors of the Humane Society.  Please cancel my automobile insurance policy, disability policy, and credit life insurance.  Also please cancel my credit cards with Generic Department Store and Generic Bank.  I have a life insurance policy with Generic Insurance Company of Omaha, Nebraska.  My spouse has a copy of the policy.  (Include a list of all accounts, company names, and addresses). “

Write your letter clearly so that even a stranger could understand it. Be sure to sign and date your letter.  As always, consult with our office concerning various additional ideas to be included with this letter, as well as to ensure you have a valid and complete Will, Trust, and effective agreements concerning your business and property holdings.  Email me anytime at clcox@coxandsterling.com.)

Unfortunately, a common problem with many Arkansas businesses involves unpaid invoices.  Many companies address the problem in Small Claims Court, or pursue other judicial alternatives to obtain a judgment.  Once the lawsuit is filed and a judgment has been obtained, the question becomes:  how long does the judgment last? 

The basic answer is 10 years.  In Arkansas, a filed judgment will act as a lien on all real estate owned by the debtor in the county where the judgment is filed for 10 years.  Careful planning will allow you to “revive” the judgment for 10 additional years, but you must act within the period subscribed by law to take advantage of the extra time.  What this means for business owners in Arkansas:

• Don’t be afraid to pursue bad debts through the Arkansas Courts.  10 or 20 years is a long period of time for the debtor to be affected by your judgment, and payment opportunities may arise.
• Make sure the judgment is properly filed in every county in Arkansas where the debtor may have assets.
• If you obtain a judgment, you need to have a long memory, because 10 years after it is filed you need to revive the judgment.
• Contact our office for additional information and assistance for all questions concerning Arkansas business law.   Please see our Business Law Page for additional information concerning businesses in Arkansas.