Automatic Transfer of Real Property at Death vs. Probate in Arkansas

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney in Arkansas for advice on your specific situation.

Detailed Answer

Under Arkansas law, certain real property interests pass by operation of law and avoid probate. These include:

Joint tenancy: When two or more people hold title with right of survivorship, the surviving co‐owner(s) automatically inherit the decedent’s share at death.
Tenancy by the entirety: Spouses own property as a single legal unit. The surviving spouse takes full title at death.
Transfer on Death (TOD) deed: A deed executed under Ark. Code Ann. § 18-12-201 et seq. allows real estate owners to name a beneficiary who obtains title at death without probate.
Trust-held property: If real estate is placed in a valid revocable or irrevocable trust, it passes to the trust beneficiaries per trust terms.
Life estates with remainder: A life tenant holds property for life; a remainder beneficiary receives title automatically when the life estate ends.

However, if real property is titled solely in the decedent’s name without joint‐owner rights, beneficiary designation, TOD deed, trust, or life estate, that asset becomes part of the probate estate. Arkansas law requires opening probate to:

Obtain court approval of the will.
Authorize the personal representative (executor) to collect assets.
Settle debts, taxes, and creditor claims.
Distribute property to heirs under the will or Arkansas intestacy rules.

The probate process in Arkansas is governed by Ark. Code Ann. § 28-12-201 et seq. It provides the legal mechanism for transferring title, ensuring clear ownership, and protecting creditors and beneficiaries. Skipping probate for assets requiring administration can lead to clouded title, contested distributions, and potential liability for heirs.

Example Hypothetical: Jane, an Arkansas homeowner, held her primary residence in joint tenancy with her brother. When Jane died, her brother automatically owned the entire property. Jane’s cabin, however, was titled only in her name and did not have a TOD deed or trust designation. Her executor opened probate under Ark. Code Ann. § 28-12-201 to transfer the cabin to the beneficiary named in Jane’s will.

Helpful Hints

Review your real estate deeds and account designations to confirm if assets pass outside probate.
Consider a TOD deed under Ark. Code Ann. § 18-12-201 et seq. for additional real estate to avoid probate.
Use joint tenancy or tenancy by the entirety judiciously—understand that co‐owners share control and liability.
Establish a revocable living trust to streamline property transfers and maintain privacy.
For estates with multiple or high‐value assets, consult an Arkansas probate attorney to minimize delays and costs.

Disclaimer: This is not legal advice. Laws change and every situation is different. Contact a licensed attorney in Arkansas to discuss your specific needs.