TN 13 (09-14)
GN 02315.040 Arkansas Small Estates
A. Background on the Arkansas small estates statute
Sections 28-41-101 and 28-41-102 of the Arkansas Code contain provisions for the collection and distribution of small estates to a distributee by affidavit.
B. Arkansas small estate distribution procedure
1. Requirements for distribution of small estates without administration
Pursuant to section 28-41-101 of the Arkansas Code, distributees of an estate (i.e., persons entitled to real or personal property of a decedent, either by will, as an heir, or as a surviving spouse) are entitled to collection of the estate when:
No petition for the appointment of a personal representative is pending or has been granted;
Forty-five (45) days have elapsed since the decedent’s death;
The value, less encumbrances, of all property decedent owned at the time of death, excluding the homestead and the statutory allowances for the benefit of the decedent’s spouse or minor children, if any, does not exceed one hundred thousand dollars ($100,000);
One or more of the distributees files an affidavit with the probate clerk of the circuit court of the county of proper venue for administration (see 2. below; and
A copy of the clerk-certified affidavit is furnished to any person owing any money, having custody of any property, or acting as registrar or transfer agent of any evidence of interest, indebtedness, property or right.
2. Affidavit content requirements
Pursuant to section 28-41-101(a)(4) of the Arkansas Code, the distributee’s affidavit must state:
That there are no unpaid claims or demands against the decedent or his or her estate, that the Department of Human Services furnished no federal or state benefits to the decedent, or, that if such benefits have been furnished, the department has been reimbursed in accordance with state and federal laws and regulations;
An itemized description and valuation of the personal property and a legal description and valuation of the decedent’s real property, if any, including the homestead;
The names and addresses of persons having possession of the decedent’s personal property and of any persons possessing or residing on the decedent’s real property; and
The names, addresses, and relationship to the decedent of the persons entitled to and who will receive the property.
3. Filing of the affidavit
Pursuant to section 28-41-101(b)(1) of the Arkansas Code, the clerk must file the affidavit, assign it a number, and index it under the recordkeeping requirements per section 28-1-108(1) of the Arkansas Code. The Clerk must charge twenty-five dollars ($25.00) for filing the affidavit and five dollars ($5.00) for each certified copy. A court order or other proceeding is not necessary. The clerk may not charge an additional fee because the person attaches a will to the affidavit.
4. Notice requirement if an estate contains real property
Pursuant to section 28-41-101(b)(2), if an estate under this section contains real property, in order to allow for claims against the estate to be presented, the distributee must cause a notice of the decedent’s death and the filing of an affidavit for the collection of his or her estate to be published within thirty (30) days after the affidavit has been filed. Publication of the notice must be made as provided in sections 28-1-112(b)(4) and 28-40-111(a)(4) of the Arkansas Code. The notice must be in a form pursuant to section 28-41-101 (b)(2)(B) and must contain:
The decedent’s name and his or her last known address;
The date of death;
A statement that the affidavit was filed, the date of filing, and a legal description of all real property listed in the affidavit;
A statement requiring all persons having claims against the estate to exhibit them, properly verified, within three (3) months from the date of the notice’s first publication, and informing them that if they do not make a claim, they will be forever barred and precluded from any benefit in the estate;
The name and mailing address of the distributee or his and her attorney; and
The date the distributee first publishes the notice.
C. Policy for good acquaintance and the effect of the affidavit under Arkansas law
An underpayment is the difference in the beneficiary’s favor between the amount the Social Security Administration (SSA) paid to a beneficiary and the amount SSA actually owed the beneficiary, see 20 C.F.R. §404.504. An individual provides “good acquittance” when SSA’s payment of an underpayment to that individual relieves SSA from any further liability for payment. This means that the individual has attested that there is no one of higher priority who could claim an underpayment and SSA has determined this to be true. For additional information, see 20 C.F.R §.404.503(e) and GN 02301.030C.
Pursuant to section 28-41-102 of the Arkansas Code, a person making a payment pursuant to an affidavit described in Section 28-41-101 shall be released to the same extent as if payment had been made to the decedent’s personal representative. The person making the payment per the affidavit shall not be required to see to its application or to inquire into the truth of any statement in the affidavit. If the person to whom the affidavit is delivered refuses to pay, payment may be compelled by judicial process brought by or on behalf of the distributee entitled to the property per the facts stated in the affidavit. The distributee, to whom payment is made, is made answerable and accountable to any person having a prior right and to any personal representative later appointed.
References: Ark. Code Ann. §§ 28-41-101, 28-41-102 (West 2013).