A Last Will and Testament is one of the most important legal documents a person can create during his or her lifetime. If a person dies without a Will they are said to have died “intestate” and state laws will determine how and to whom the person’s assets will be distributed.
If a person dies without a Will the beneficiaries can not dispute the court’s distribution of that person’s estate under the intestacy laws. Even if that person expressed different wishes verbally during their lifetime the statutes control the distribution. With a valid Will, a person can legally determine how their property will be distributed… and to whom.
A Will must meet the legal requirements set forth by the state in order for it to be valid. Most states will also accept a Will that was executed in another state if the document is a valid Will under that state’s law. The general requirements for a valid Will are usually as follows: (a) the document must be written (meaning typed or printed), (b) signed by the person making the Will (usually called the “testator” or “testatrix”, and (c) signed by two witnesses who were present to witness the execution of the document by the maker and who also witnessed each other sign the document.
In Arkansas, the laws regarding the valid execution and witnessing of a Will are set forth in the Arkansas Code, Title 28 Wills, Estates and Fiduciary Relationships, Subtitle 3 Wills, Chapter 25 Execution and Revocation, Sections 101-106.
In Arkansas, any person eighteen (18) or more years of age who is of sound mind may make a will. (See: Section 28-25-101.) “Sound mind” generally means someone who has not been deemed incompetent in a prior legal proceeding.
A Will must be in writing, signed by the testator and by two witnesses. If the testator is unable to physically sign his name he may make his signature by a mark, or he may direct another party to do it for him. This party may not be counted as one of the two required witnesses and must sign and state that they signed the document in the testator’s name. Each witness must either see the testator sign the Will or be told by the testator that the signature on the Will is his and must sign the Will in the testator’s presence and in the presence of the other witness. (See: Section 28-25-103)
Witnesses to a Will must be eighteen (18) years of age or older and be generally competent. Generally, it is recommended that the witnesses to the Will be “disinterested”, which means that they are not beneficiaries of the Will. A Will is not invalidated in Arkansas if it is witnessed by an interested witness, but if there are not at least two disinterested witnesses the interested witness must forfeit the portion of the gift that exceeds the value they would have received if the testator had died intestate. (See: Section 28-25-102)
If a Will’s authenticity is unchallenged it may be probated in a simplified procedure if it has been self-proven. Witnesses to a self-proven Will are not required to testify in court because the court automatically accepts a self-proven Will as authentic. To self-prove a Will the testator and the witnesses must affirm to the authenticity of the Will in an affidavit before a notary and have the notary stamp the affidavit.
Self-proving a Will may be done at the time of the Will’s execution, at a later time period, or the witnesses may affirm to the authenticity after the testator’s death upon the request of the executor of the estate. The affidavit should be part of the Will or attached to it. (See: Section 28-25-106)
Hopefully these guidelines have helped make your estate planning decisions easier. For information regarding your specific circumstances you should always contact an attorney.