Probate - SMALL ESTATES
Probate – “Small Estates"
Administration of “Small Estates” is governed by A.S.C.A. Title 40, Chapter 3.
Jurisdiction over “Small Estate” cases is in the Trial Division of the High Court. A.S.C.A. §40.0301.
The priority of persons eligible to petition the court for an Order To Transfer Property In Small Estate is (a) the decedent’s surviving spouse, and (b) the decedent’s next of kin. A.S.C.A. §40.0305.
A “Small Estate” is one in which the total value of the property of the decedent does not exceed $10,000. A.S.C.A. §40.0334. In most cases, the decedent will have died intestate.
A Petition To Transfer Property in Small Estate must state “the name, residence, and date of death of the decedent, and the names and addresses of the surviving spouse, children, brothers and sisters of the decedent or, if none survived the decedent, the name, address and relationship of the nearest surviving relative.” A.S.C.A. §40.0335(a).
The Petition must also state “the total value of the personal property and the total of all known debts of the decedent” as well as “the promise of the petitioner to pay, as far as the assets of the estate permit, the debts of the decedent, and to distribute the balance, if any, to the person or persons entitled thereto.” A.S.C.A. §40.0335(b).
In the event that the decedent left a will, the Petition shall also “contain a brief statement as to any will made by decedent concerning his personal property, and the property, if any, that passed or is to pass under such will and to whom it went or is to go.” A.S.C.A. §40.0335(b).
The Petition also contains a promise by the petitioner to distribute the decedent’s property to the persons named in the Petition who are lawfully entitled thereto. Further, the Petition is verified, that is, the Petitioner swears that the facts stated in the Petition are true.
The most common version of a Petition To Transfer Property in Small Estate involves a death certificate and the decedent’s most recent bank account statement attached as exhibits.
The Petition is filed with an accompanying (proposed) Order To Transfer Property In Small Estate. The Order recites the date and place of death of the decedent, whether he died intestate or (rarely) left a will, the name of the surviving spouse (usually the Petitioner), the names and addresses of decedent’s surviving children, the names and addresses of decedent’s surviving brothers and sisters, identifies the decedent’s personal property (usually a bank account), asserts that the value of decedent’s property is less than $10,000 and is therefore subject to distribution as a small estate under A.S.C.A. §40.0336, states where the decedent was domiciled when (s)he died, and orders the decedent’s property (usually the funds in decedent’s bank account) and any remaining personal effects be transferred to Petitioner for payment of Decedent’s lawful debts, if any, and distribution of any remaining balance to the persons named in the Petition who are entitled thereto.
Distribution: The surviving spouse gets one-third of the estate. A.S.C.A. §40.0103. The surviving children share equally in the other two-thirds. A.S.C.A. §40.0201(a). If there is no surviving spouse, the children get it all. A.S.C.A. §40.0201(b). If there are no surviving children, the surviving spouse gets all. A.S.C.A. §40.0201(c). If there is no surviving spouse and no surviving children, the estate goes to the next-of-kin, i.e. the parents and siblings of the deceased. A.S.C.A. §40.0201(d).