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    An initial consultation, up to one hour, is FREE for general estate planning, estate administration, probate, GUARDIANSHIP or a family law matter if you bring your completed Questionnaire with attachments and all decision-makers attend; otherwise, we charge by the hour.  An initial consultation for long term care planning with Medicaid &/or VA Pension costs $500.  We charge by the hour, in one-tenth of an hour (6 minute) increments, for all time spent on real estate, corporate and other business matters, or for any advice outside the initial consultation when you have not engaged us under a flat fee agreement.  Any quote we give you for a flat fee is binding if we receive all requested information and are engaged to commence work within 30 days.  We accept Visa and MasterCard but assess a 2% surcharge when doing so.  Please come to any initial consultation prepared to pay the initial consultation charge (for Medicaid/VA, real estate, etc.), and/or one-half of any flat fee, or a retainer for hourly work.

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Probate & Estate Administration

Most of us experience extraordinary grief and pain at the loss of a loved one. But it is often the surviving spouse, adult child or sibling of the Decedent who is tasked with the probate of a Will or the administration of an estate. Serving in this capacity requires that certain actions be taken without delay; adding these external stresses can result in a disaster in very short order. Many times a responsible party is not aware of the obligations imposed by law. If we are engaged to assist you with a probate or estate administration we can quickly alert you to potential and often concealed risks, outline immediate and vital steps necessary to preserve estate assets, identify trusted resources available, and answer the myriad of questions which inevitably arise for you and the Decedent’s other family members. We will handle all of the court pleadings, orders, notices and certified mail, and advise you which expenses should or should not be paid, the proper source of payment, the documentation required for reimbursement, and how to minimize your potential liability to heirs, creditors or tax authorities for unauthorized actions or for failure to take required actions. Prompt engagement of experienced counsel can reduce not just your level of stress but also the cost of administration and the time until assets can be distributed.

Individuals who have not experienced probate or estate administration may find it helpful to have a basic understanding of the process and some terminology routinely used. Read on for some essential information. 

The person who died is referred to as the “Deceased” or the “Decedent.”

A person who dies without a Last Will and Testament (a Will) is said to have died “intestate.”

A person who dies with a valid Will in place is said to have died “testate.” A person signing a Will (Testator) can name the person who is to oversee the administration of the Testator’s estate (Personal Representative), name the people who are to inherit the Testator’s assets after his or her death (Beneficiaries), and state whether the beneficiaries are to inherit the assets quickly following the Testator’s death or at some future time, or over a period of years. 

The Personal Representative is responsible to see that assets are transferred to the Testator’s beneficiaries as dictated in the Will or by Arkansas law, or sold and the proceeds transferred. While the Will may be "read" a few days after the funeral, no gifts, inheritance or bequests are given out at that time. Rather, the Personal Representative must settle the Decedent's debts and claims and complete the administration of the estate before distributing any assets. This is all handled through a court process known as probate (of a Will) or estate administration (if there is no Will).

The Personal Representative is responsible for the care and maintenance of estate property, treating it with even greater care than his or her own property. Once duly appointed by the court, the Personal Representative must give proper and timely notices to beneficiaries and creditors of the estate; timely prepare an inventory of the estate’s assets subject to probate or administration; publish notice in the appropriate newspaper as required by law; obtain any required appraisals; keep the beneficiaries informed of all matters that may affect their rights; pay claims of certain creditors; file any required tax returns; pay taxes owed by the Decedent or the estate; distribute assets or proceeds to beneficiaries; and attend to many other details. A Personal Representative can be removed or fined if proven to have been guilty of any gross misconduct or mismanagement. The representative is also subject to being sued for breach of fiduciary duty.

As you can see, being a Personal Representative is a big job and there are high expectations. Our responsibility as attorneys is to assist the Personal Representative so that the Decedent’s assets can be distributed as quickly and efficiently as reasonably possible without the Personal Representative incurring personal liability to the Decedent’s beneficiaries or creditors. And, we take precautions to be sure that good and marketable title to the estate’s assets will be transferred. To do this, we file with the circuit court of the appropriate county a Petition for Administration of Estate (if the Decedent died intestate) or a Petition for Probate of Will. The proceedings are very similar, except Arkansas law dictates who receives the assets of an intestate Decedent whereas the terms of the Decedent’s Will determine this for a Decedent who left a valid Will. In either event, we obtain a court order to appoint a Personal Representative of the Decedent’s estate and then we work with the Personal Representative to fulfill his or her fiduciary duties. Arkansas statutes prescribe a fee for a Personal Representative separate and apart from any fee for the estate attorneys. So engaging an attorney will not mean that the Personal Representative serves without pay.

You can better protect the assets of the Decedent’s estate and the interests of the beneficiaries, protect the Personal Representative from liability for breach of fiduciary duty, and help the entire process go smoothly, if you gather all of the needed information at the beginning stage. Ball Corley PLLC has forms and procedures in place to assist you with this task. If you are dealing with an estate valued at less than $100,000, exclusive of the homestead, you may be eligible to proceed with an Affidavit for Collection of Small Estate, which is an abbreviated court process.

 

Request a Consultation

If you would like our assistance with the probate of a Will or the administration of an intestate estate, please request a consultation and we will send you a Questionnaire. If you bring the completed Questionnaire with you to the appointment, with attachments, a thirty minute consultation is free. At that time, we will review your Questionnaire, answer your questions, and give you a brief overview of the process. If you engage us, we will ask you to sign an Engagement Agreement and pay a retainer (typically at least $3,000) against which we will bill expenses and our time on an hourly basis, in one-tenth of an hour (6 minute) increments. You may be asked to replenish this retainer from time to time as fees are earned. If the matter is concluded without us earning all money then on deposit we will promptly refund any excess. We will accept a Visa or MasterCard but we assess a 2% surcharge when doing so. Some or all of the fee may be reimbursed by the probate estate, and in some cases we will accept the statutory fee for services. Although a 30 minute initial consultation is free, we do charge for any affidavits, deeds, notices, waivers, acceptances of trusteeship or other documents we prepare during the initial consultation. We would consider it an honor to help you at this difficult time.

 

 

Affidavit for Collection of Small Estate by Distributee

A “small estate” is defined as an estate valued at less than $100,000 exclusive of the homestead and statutory allowances for any surviving spouse or minor children. If the estate with which you are concerned falls within this limit, you might be able to proceed with an Affidavit for Collection of Small Estate by Distributee rather than the full process entailed in the probate of a Will or the administration of an intestate estate. An Affidavit for Collection is typically faster and less expensive, and it can be used whether or not there was a Will, so we always analyze a Decedent’s estate to determine whether this is an option. There are certain other criteria to use this Affidavit, and certain disadvantages, all of which we can discuss with you.

Even with the abbreviated Affidavit for Collection of Small Estate procedure, certain formalities must be observed and notices given. When the estate includes real estate, notices must be published in a qualified newspaper in order to transfer good title and to cut off future claims of creditors against the estate.

 

Request a Consultation

If you would like to discuss the use of an Affidavit for Collection of Small Estate, including which estates qualify and the advantages and disadvantages of the shortened process, or if you would like our assistance with handling such an Affidavit, please request a consultation and we will send you a Questionnaire. If you bring the completed Questionnaire to your initial consultation, with copies of all requested documents (except we will obtain a death certificate if you do not already have one), we will charge you $500 for that initial meeting. But if you engage us we will in most instances handle an Affidavit for Collection of Small Estate for a flat fee of $1,500 plus expenses rather than on an hourly basis, depending on the type of property to be transferred. An estate with real estate, or with a large number of children, grandchildren or other heirs or beneficiaries who must be given notice and consent to the process, will typically increase the fee and expenses, as will any dispute between distributees. Any time that we spend to identify heirs and beneficiaries or obtain good addresses for them because they were not provided, or to locate deeds or obtain complete and accurate descriptions of real estate, or to communicate with quarreling or questioning heirs, will be charged at an hourly basis over and above the flat fee. In that event we charge in one-tenth of an hour (6 minute) increments. If you engage us, we will ask you to sign an Engagement Agreement and pay the fees and expenses in advance. Therefore, we ask that you come to any initial consultation prepared to pay at least our $500 consultation fee. We will accept a Visa or MasterCard but we assess a 2% surcharge when doing so.

 

 

Trust Administration

Most of us experience extraordinary grief and pain at the loss of a loved one. But it is often the surviving spouse, adult child or sibling of the Decedent who is named as the Trustee of a living trust. And while the administration of a trust is typically much less stressful than the probate of a Will or the administration of an intestate estate – since it rarely entails court intervention or oversight – it still imposes fiduciary obligations on the trustee. And a trustee can face liability if he or she fails to timely take certain actions required by law or as dictated in the trust agreement.

When a person creates a trust during his or her lifetime it is referred to as a “living trust.” Living trusts can be revocable or irrevocable. When creating a living trust, the trust maker names someone, called the “Trustee,” to oversee the trust. Often when creating a revocable trust, the trust maker names himself or herself as the initial Trustee, with a “successor trustee” named to take over when the original trustee is no longer able to act, whether due to mental incapacity or death. When a married couple creates a joint revocable living trust, both spouses are often named as Trustee, with the survivor of them to continue to serve as the sole Trustee after the death or mental incapacity of one. Still, a successor trustee will generally be named to take over when the second spouse dies or becomes unable to serve. The trust agreement will also name one or more persons or charitable organizations who are to receive the benefits of the trust. They are referred to as “beneficiaries.” The initial beneficiaries of a revocable living trust are most often the trust maker(s). But children, grandchildren, other family members, friends or charitable organizations will be named to benefit after the death of the trust makers.

When a trust is created, a Certification of Trust is typically prepared to describe the trust by name and date, state the name and address of the Trustee, provide the tax identification number of the trust, state how assets in the trust are to be titled, and provide certain other basic information to third parties who will need to deal with the trust. This Certification avoids the need to give a complete copy of the Trust to third parties, and thereby keeps the provisions of the Trust private.

A successor Trustee will need to establish and document his or her authority to assume control of trust assets. This is most often accomplished by signing an Acceptance of Trusteeship and obtaining a new Certification of Trust. An affidavit of death or mental incapacity may also be needed in order to document the successor Trustee’s right to assume this role. If an initial Trustee simply elects to resign, whether due to convenience, old age or other cause, a Resignation of Trustee may be needed in order for the next person named to step in and serve as Trustee. And, because many revocable living trusts use the social security number of the trust maker, a new tax identification will need to be obtained after the death of the trust maker. When a successor Trustee takes control notice to certain parties may also be required.

A Trustee has a duty to protect, manage and preserve the assets in the trust and protect the interests of the beneficiaries. Once the trust makers are no longer the beneficiaries of the trust, a trustee is required to prepare an annual report which details all of the assets owned by the trust. The report of assets provides both potential beneficiaries and creditors of the deceased an idea of the trust's assets and claims. Beneficiaries want to know what they might inherit and creditors want to know if there is enough money to pay them. Certain property may require valuation or a full appraisal before it can be distributed. The valuation is important to obtain a step-up in basis – to reduce the capital gains tax on subsequent sales of propery distributed from the trust.

When an irrevocable trust is created, someone other than the trust maker is typically the initial trustee. Therefore, the Trustee of an irrevocable trust may have been acting in that capacity for years before the trust maker dies. But in certain circumstances, the “lifetime trustee” – the person who serves as Trustee during the trust maker’s life – is not the same as the “death trustee” – the person to serve after the trust maker dies. In that event, a successor trustee of an irrevocable trust will need to sign an Acceptance of Trusteeship and obtain a new Certification of Trust, and perhaps give notice to beneficiaries and take other actions. However, because an irrevocable trust typically has an employer identification number as its taxpayer ID, and does not use the trust maker’s social security number, a new taxpayer identification number may not be required.

If we assist you with the administration of a trust we can read and interpret the trust and advise you regarding its terms, and prepare the acceptances, certifications, affidavits, notices and other documents needed for the successor trustee to take over. We can also obtain a new tax identification number for the trust, alert you to potential and often concealed risks, outline immediate and vital steps necessary to preserve trust assets, identify trusted resources available, and answer the myriad of questions which inevitably arise for you as well as other family members. We can advise you which expenses of the Decedent should or should not be paid, the proper source of payment, the documentation required for reimbursement, and how to minimize your risk of liability to beneficiaries, creditors or tax authorities for unauthorized actions or for failure to take actions required. Prompt engagement of experienced counsel can not only reduce your level of stress but also minimize the time until trust assets can be distributed to the beneficiaries in keeping with the trust maker’s wishes.

 

Request a Consultation

If you would like our assistance with the administration of a trust, please request a consultation and we will send you a Questionnaire. If you bring the completed Questionnaire and trust agreement with you to the appointment, a consultation is free up to thirty minutes. At that time, we will review your Questionnaire, answer any questions, and give you a brief overview of the process. If you engage us, we will ask you to sign an Engagement Agreement and pay an advance fee deposit (typically a minimum of $1,500) against which we will bill expenses and our time on an hourly basis, in one-tenth of an hour (6 minute) increments. You may be asked to replenish this deposit from time to time as fees are earned. If the matter is concluded without us earning all money then on deposit we will promptly refund any excess. We will accept a Visa or MasterCard but we assess a 2% surcharge when doing so. Our fees and expenses should be payable by the trust. 

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The attorneys of Ball Corley PLLC proudly serve the entire State of Arkansas with respect to:  Estate Planning (wills, trusts, powers of attorney, HIPAA authorizations, living wills and visitation directives); Elder Law (Medicaid, veterans administration pension and long term care planning); Probate; Trust and Estate Administration; Guardianships; Family Law (adoption, divorce and separation, child custody and visitation, support obligations, post-decree modification and paternity); Premarital Agreements; Collaborative Law; Mediation; LGBT Laws; and Real Estate Transactions.

Notice and Disclaimer: This Ball Corley PLLC website is intended only to give general information which we believe may be helpful; it is not intended to be advertising or a solicitation, or to provide legal advice. If our website includes any links to other sites they are for information only and should not be interpreted as an endorsement. Although we try to keep the information on our website current it may not always reflect the latest laws, decisions or dollar amounts. And, the general rules provided may not apply to your specific situation; for every general rule there are multiple exceptions to that rule. Therefore, we strongly recommend that you consult with us or another qualified licensed attorney rather than taking any action in reliance on any information contained in this website. Neither your visit to our website, nor your phone call or email to our office, will create an attorney-client relationship with Ball Corley PLLC or its attorneys; such a relationship can be established only by our written agreement to represent you.

If you contact us via phone or email, please do not disclose any information which you deem to be confidential. Only after we have agreed to represent you are we governed by Rule 1.6 of the Arkansas Rules of Professional Conduct regarding Confidentiality of Information. That Rule requires that we hold in strict confidence any and all confidential information revealed to us by our clients, subject only to certain narrow exceptions (such as to confer with your CPA, investment advisor or another professional). We are also bound by Rule 1.18 and other Rules of Professional Conduct.

You may print or reproduce materials found on this website in their entirety, without any modification, for your personal and/or educational use only if you include this Notice and Disclaimer in such reproduction.

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