A will is a document that directs a Court on how you want your assets divided after your death.  If you don’t have a will or trust then the government decides how to divide them.  Even if we die without a will, our assets can be passed out of our probate estate.  This happens through the laws of intestate succession.  There are Arkansas statutes that define who takes our property in the event we die without a will.  While the spouse’s interest in a probate estate is a topic for another article entirely, the general preference of the laws of intestate succession is that our closest heirs inherit our estate, beginning with children, followed by parents.  If none of the above are living, the law defines who is next in line all the way out to relatives we likely haven’t met.

The fundamental purpose of a will is to direct where our assets go after we die rather than relying on the laws of intestate succession.  A will can leave property to a spouse, child, other relative, friend, organization, or charitable entity.  A will can direct that specific items of property be given to specific individuals, or it can simply identify a person or class of persons who will share in a percentage of or all of the deceased’s property.  A will also identifies a person or multiple persons who will serve as personal representatives during the probate process.  Their job is to take possession of the decedent’s property, to pay claims that are properly presented in the probate process, and to distribute remaining property according to the terms of the will – typically with the help of a lawyer.

A will allows a person to provide for certain individuals in the event of his or her death.  While property is still transferred to the closest family members when a person dies without a will, the best example of why most people should strongly consider having a will is the role of the spouse in the Arkansas statutes.  Under Arkansas law, our spouse does not inherit from our estate under intestate succession (if there is no will). Rather, the spouse maintains a “dower” or “curtesy” interest in the decedent’s estate.  This is an important distinction, because the nature of a dower or curtesy interest is quite different from what most of us would prefer to leave behind to our spouse in the event of our death.  This is of concern to all married persons, but especially married persons who have no children who would rather see their spouse inherit their estate as opposed to the decedent’s parents or siblings.