It seems like everyone talks about wills and probate, but who knows if what you are hearing is correct? Our attorneys debunk 5 of the most common myths surrounding wills and probate:

1. The Executor of the Estate Cannot Also Be a Beneficiary

This is untrue. Very often, the executor of an estate is a child or other family member or loved one who is also a beneficiary. The executor, whether beneficiary or not, has the legal obligation and fiduciary responsibility to carry out the terms of the will exactly, without manipulating anything to their own benefit or someone else’s harm. Some people cannot serve as executors, however. These include anyone under 18, a non-relative living in a different state, or someone with a felony conviction.

2. If Someone Dies Without a Will, the State Takes Everything

False. Dying without a will is called dying intestate. Every state has its own rules for intestacy succession, which means a legal procedure for who gets what if there is no will. In most cases, your assets will go to your spouse first, then your children, then other relatives in a specific order. In some states, it matters how long you have been married. In Arkansas, a spouse of fewer than three years must share the inheritance with any living children, while spouses of more than three years do not. Remember, this is only in cases where there is no will. In a will, you can designate whoever you want to inherit from you. Being able to make this choice is one of the reasons having a will is preferred. The only time the state might get some or all of a person’s assets would be if they die without a will and do not have a single living relative.

3. Probate is Only Required When There is No Will

This is not true. All estates go through probate unless there are not sufficient assets owned by the decedent. In Arkansas, for example, the only estates that are not subject to probate are those in which the assets are less than $100,000, there are no debts of any kind, and no one is contesting the will. For an estate to meet all of these conditions is rare. Therefore, most estates go through the probate process in Arkansas, whether or not there is a will.

4. If a Will or Trust Was Prepared Correctly It Cannot Be Contested

Not true. There is no way to stop anyone from contesting a will or a trust, but if the will or trust was drawn up properly by an experienced estate planning attorney, they are not likely to succeed.

5. Only Wills Prepared by Attorneys Are Valid in Arkansas

Another myth. While oral wills are not allowed in Arkansas, handwritten wills and wills that are not notarized are valid as long as they are written in the testator’s own hand and are witnessed by three disinterested witnesses (meaning not beneficiaries). This is not ideal, however, as these wills are difficult to validate and easy to contest.