My father left me his home so how do I transfer the deed and keep this out of probate court?

Full Question:

My father left a will and left all his belongings to me and my husband. He also left behind a lot of unsecured debt. We want to try and keep his house, as we would like to move into his house, but would like to keep this matter out of probate court. Would an affidavit of heirship work for the transferring of the deed? He owes a mortgage on the property also, but we are fully willing to pay this off first. What papers do we need to file?
04/30/2009   |   Category: Wills and Es... ยป Probate   |   State: Arkansas   |   #16481


Probate is the legal process by which title of property is transferred from an estate to the heirs and/or beneficiaries. If a person dies with a will (testate), the probate court determines if the will is valid, hears any objections to the will, orders that the creditors be paid, and supervises the process to assure that property remaining is distributed in accordance with the terms and conditions of the will. Probate also allows for collection of taxes due and payment of outstanding debts. Probate proceedings are governed by the law of the state where the deceased person resided at the time of death and by the probate laws of any other state where the property was owned. All property of a decedent may not be subject to the probate process. Real estate held as joint tenants with right of survivorship and other joint tenancy property can pass directly to the appropriate beneficiary automatically without the involvement of the court. Probate begins with the filing of the will with the clerk of the appropriate court along with a petition to approve the will, open the estate and appoint the personal representative who is responsible for the administration of the deceased’s property. If the court determines the will is valid, the court then admits the will to probate. The next step is for an official notice of creditors to be printed in a local newspaper and notice of administration to be sent to other involved parties. Creditors have a set amount of time to file their claims from the first date of publication. The personal representative then can pay the debt and distribute the remaining estate. If there is not enough money to pay all the debts of the estate, state law dictates which creditors are paid first. Beneficiaries and personal representatives are not personally liable for the debts of the estate, although the court may order estate property sold to pay certain creditor claims. Finally, a petition for discharge is filed, and the estate is closed.

Generally it is necessary to go through probate or, in the case of smaller estates, a less formal procedure that is still under the general supervision of the probate court, before the deceased's property can be legally distributed. Small estate administration is an alternative to a formal probate of an estate when the assets, liens, and encumbrances of the estate are under a certain statutory amount. This allows heirs to obtain property of the deceased without probate, or with shortened probate proceedings, provided certain conditions are met. Small estate procedures may generally be used regardless of whether there was a will. The administration of the estate may be commenced a certain time after death, and the appointment of a personal representative is made. An inventory and appraisal must be filed with the court. The personal representative, after giving any required notice to creditors, may immediately disburse and distribute the estate to the entitled persons. A verified statement to close and a full account in writing must be filed with the court and copies served on all distributees and creditors whose claims are neither paid nor barred. Under Arkansas statutes, a party entitled to the proceeds of an estate may claim the proceeds by filing a small estate affidavit. The affidavit must state, among other things that forty-five (45) days have passed since the death of the decedent, that the estate is valued at less that $100,000, and that all claims against the estate have been paid. After the filing of this affidavit with the clerk for the probate court, and a finding that the statutes have been complied with, the probate judge will issue an order releasing the proceeds of the estate.

An heirship affidavit, on the other hand, is used to state the heirs of a deceased person and is commonly used to establish ownership of personal and real property. It may be recorded in official land records, if necessary. An example would be if an individual dies without a will, leaves a son and no estate is opened. When the son sells the land, the son obtains an heirship affidavit to record with the deed.

The following are Arkansas statutes:

§ 28-41-101.

Collection of small estates by distributee.

(a) The distributee of an estate shall be entitled thereto without the appointment of a personal representative when:
(1) No petition for the appointment of a personal representative is pending or has been granted; and
(2) Forty-five (45) days have elapsed since the death of the decedent; and
(3) The value, less encumbrances, of all property owned by the decedent at the time of death, excluding the homestead of and the statutory allowances for the benefit of a spouse or minor children, if any, of the decedent, does not exceed one hundred thousand dollars ($100,000); and
(4) There shall be filed with the clerk of the probate court of the county of proper venue for administration an affidavit of one (1) or more of the distributees setting forth:

(A) That there are no unpaid claims or demands against the decedent or his 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 of Human Services has been reimbursed in accordance with state and federal laws and regulations; and
(B) An itemized description and valuation of the personal property and a legal description and valuation of any real property of the decedent, including the homestead; and
(C) The names and addresses of persons having possession of the personal property and the names and addresses of any persons possessing or residing on any real property of the decedent; and
(D) The names, addresses, and relationship to the decedent of the persons entitled to and who will receive the property; and

(5) There 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, a copy of the affidavit certified by the clerk.

(1) The clerk shall file the affidavit, assign it a number, and index it as required by § 28-1-108(1). He shall make a charge of twenty-five dollars ($25.00) for filing the affidavit and three dollars ($3.00) for each certified copy. No order of the court or other proceeding shall be necessary.
(A) If an estate collected under this section contains any real property, the distributee, in order to allow for claims against the estate to be presented, may, promptly after the affidavit has been filed, cause a notice of decedent's death and the filing of an affidavit for collecting of his or her estate to be published.
(B) The notice shall contain:

(i) The name of the decedent and his or her last known address;
(ii) The date of death;
(iii)A statement that the affidavit was filed, the date of the filing, and a legal description of all real property listed in the affidavit;
(iv) A statement requiring all persons having claims against the estate to exhibit them, properly verified, within three (3) months from the date of the first publication of the notice, or they shall be forever barred and precluded from any benefit in the estate;
(v) The name and mailing address of the distributee or his attorney; and
(vi) The date the notice was first published.

(C) Publication of the notice shall be as provided in §§ 28-1-112(b)(4) and 28-40-111(a)(4).

§ 28-41-102.

Payment, transfers, or deliveries pursuant to affidavit.

(a) The person making payment, transfer, or delivery pursuant to the affidavit described in § 28-41-101 shall be released to the same extent as if made to a personal representative of the decedent, and he shall not be required to see to the application thereof or to inquire into the truth of any statement in the affidavit.

(1) The distributee to whom payment, transfer, or delivery is made, as trustee, shall be answerable to any person having a prior right and shall be accountable to any personal representative thereafter appointed.
(2) However, if notice to creditors of the decedent's death and the collection of his or her estate is published as provided by § 28-41-101, all claims as to real property within the estate shall, in any event, be forever barred at the end of six (6) months after the date of the first publication of the first notice.
(3) Nothing in this section shall affect or prevent any action or proceeding to enforce any mortgage, pledge, or other lien arising under contract or statute upon the property of the estate.

(c) If the person to whom the affidavit is delivered refuses to pay, transfer, or deliver the property as above provided, it may be recovered or delivery compelled in an action brought in a court of competent jurisdiction for such purpose by or in behalf of the distributee entitled to the property upon proof of the facts required to be stated in the affidavit.

(d) Under and pursuant to the affidavit described in § 28-41-101 and after the notice to creditors of the decedent's death and the collection of his or her estate is published as provided by § 28-41-101, the distributee to whom transfer or delivery of any real property is made shall be authorized to issue to himself a deed of distribution for the real property of the decedent as if made by a personal representative of the decedent.

§ 28-41-103.

Petition and order for no administration.

(a) Either with or without administration, if the court shall determine upon petition of an interested person that the personal property owned by a decedent at the time of his death does not exceed that to which the widow, if any, or minor children, if any, are by law entitled free of debt, as dower or curtesy and statutory allowances, then the court may enter an order vesting the entire estate in the widow and minor children, or the widow or minor children.

(b) The statutory allowances payable to or for the benefit of the minor children of the decedent may be paid to the surviving parent without the interposition of a guardian if the surviving parent has custody of the minor children.

(c) The petition may be granted without notice or upon such notice as the court may direct.

(1) The order shall specifically describe the property vested thereby.
(2) The order, to the extent of the property specifically described in the order, until revoked, shall constitute sufficient legal authority to all persons owing any money, having custody of any property, or acting as registrar or transfer agent of any evidence of interest, indebtedness, property, or right belonging to the decedent and to persons purchasing or otherwise dealing with the property, for payment or transfer to the persons described in the order as entitled to receive the property.

§ 28-41-104.

Proceedings to revoke order.

At any time within one (1) year after the making of an order as provided in § 28-41-103, the court, either for good cause shown upon petition of an interested person or upon its own motion, may set the order aside.

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