Small estate affidavit in Arkansas: who can use it and how

A sworn affidavit filed with the probate clerk of the circuit court. The clerk certifies copies, and you give a certified copy to each bank, company or person holding the person's property. It covers personal property and real estate.

Limit

Up to $100,000 Counted after subtracting liens (what is owed on the property).

All property the person owned at death, valued after subtracting loans and liens on it, cannot be worth more than $100,000. Do not count the person's homestead or the statutory allowances for a surviving spouse or minor children.

What counts

The value, less encumbrances (such as loans or liens), of all property the person owned at death. The homestead and the statutory allowances for a surviving spouse or minor children are left out.

Waiting period

At least 45 days must have passed since the death before the affidavit is filed. The court's Form 23 asks you to swear that more than 45 days have passed.

Who can use it

One or more of the distributees (the people entitled to the property as surviving spouse, heirs or beneficiaries under the will) sign and file the affidavit. It must list the names, addresses and relationship of everyone entitled to receive the property. Other heirs may sign a disclaimer if they give up their share.

Court or where to file

Probate clerk of the circuit court in the county where a probate case would be filed (usually where the person lived).

Notary

The affidavit is made under oath; the court form and county clerk forms have a notary block.

Papers to attach

• Itemized description and value of the personal property
• Legal description and value of any real property, including the homestead
• Names and addresses of whoever holds the property or lives on the real property
• Names, ages, addresses and relationships of everyone entitled to the property
• The will, if there is one (no extra fee to attach it)

Steps

1. Wait until more than 45 days after the death (Form 23 asks you to swear to this) and check that no petition for a personal representative is pending or granted.
2. Make sure there are no unpaid claims, and that the Department of Human Services gave the person no benefits or has been repaid.
3. Fill in the affidavit (court Form 23 or the county clerk's form), sign it under oath and file it with the probate clerk.
4. Get clerk-certified copies and give one to each bank, company or person holding property.
5. If there is real estate: publish a notice of the death and the affidavit within 30 days after filing; creditors have 3 months from first publication to present claims.
6. If no claim is presented within the 3 months, or all claims are paid, the distributee may issue a deed of distribution for the real estate and notify the county assessor.

Fee

$25 to file the affidavit and $5 for each certified copy, set by Ark. Code 28-41-101(b)(1)(B). No extra fee if a will is attached. If real estate is included, you also pay the newspaper for the notice.

Debts and responsibility

The affidavit states that there are no unpaid claims and that the Department of Human Services has been repaid for any benefits. If a claim is presented within 3 months after the notice for real estate is first published and is not paid without using the person's property, the distributee must open a regular probate case and pay a new filing fee.

What the bank or holder must do

With a copy of the affidavit certified by the clerk, the distributees are entitled to receive the property, without a court order, from anyone who owes the person money, holds the person's property, or is a registrar or transfer agent for the person's securities.

Forms

• Form 23: Affidavit for Collection of Small Estate by Distributee (Arkansas Judiciary official probate forms)
• Legal Aid of Arkansas: Small estate packet with real property (affidavit, disclaimer, notice, deed of distribution)

Source: Official page