Category Archives: Probate and Trust

Heir Property and Mineral Rights in Arkansas: Practically Unsolvable v. Solvable Scenarios

I get a call a couple times a month from someone who believes they own mineral rights in Arkansas.  Many calls imply that somebody, somewhere cheated they caller out of their birthright.  I sympathize, I really do.  Mineral rights law is very complicated.  Many actions that seem opaque and shady to a normal person are actually standard operating procedure for oil and gas companies.  There’s a good reason why these actions that appear callous are the standard operating procedure.  It is not personal–believe me.   Folks at oil and gas companies are sympathetic human beings.  The thing is that there are only so many of them, but there are 1000x more of you the royalty owner.  For that reason, the company has to prioritize some requests and outright turn down others.

A simple 640 acre gas unit out in the country may have 100 owners.  In towns, the number will be in the 100’s.   If a company has 64,000 acres in a gas play, it may deal with 64,000 royalty owners.  That company may only have 10 division order analysts.   This is why the oil and gas companies sometimes seem callous.  They are outnumbered and outgunned.  If they hired enough people to answer everyone’s calls and letters the same day, they could not afford to drill and produce.

Because of this asymmetry between owners and company employees, the companies lobbied States to have laws and regulations to pass the responsibility of keeping up with unclaimed royalty money to the State government.  This is how royalty money disappears.  There are exactly zero State employees actively looking to reunite you with your money because frankly if they don’t find you, they get to keep your money.

This is why you call me.   I appreciate the calls, but there are some fact scenarios that are solvable and others that are not.  Here are some common but practically unsolvable situations:

  1. You have no clue whatsoever where the land was and who originally owned it.
  2. You know that one or your parents or grandparents owned the land, but you don’t know or understand how much.
  3. You know that your great grandfather owned the land.  He had 12 children.  They had 8 children each.  Your parents had five children  (or some variation of these numbers where there are 50 plus descendants).

The first one does not help me help you.  I don’t have the time to hunt down your ancestor’s names on deeds in the courthouse.  The second is usually someone who actually is in the third situation but just doesn’t know it yet.  If you are in the third situation, you have such a small interest in the property, it would cost you many times more in your share of any possible royalty money to hire me.  I say “practically insolvable” because the cost/benefit on my fee to your recovery makes recovery impractical.

Solvable scenarios:

  1. Some person or company approached you to buy/lease/integrate your mineral rights.
  2. You’ve seen your name or your parents’ names on a State unclaimed property list.
  3. You know you have fewer than 20 owners in the whole tract of land and there is an oil or gas well on the land.

The first is a big tell that you have something valuable.  You are sitting on a full house and they are bluffing.  The person who approached you did the homework. You need me to figure out what he/she knows, clear your title, and claim your money.  The second is also a good sign and provides plenty of information that will allow me to find your money and mineral rights.  The third is also acceptable because you will likely have enough interest to make it worth your while to hire me.

So there it is.  I hope you found this, read it, and understand what I can and can’t do for you if you think you own Arkansas Mineral Rights and haven’t been paid.

How Long Does It Take to Probate an Estate in Arkansas?

“Going through probate” or “probating an estate” means  the same thing in Arkansas.  It means petitioning a Court with jurisdiction over the person or property in Arkansas to probate a will, appoint a fiduciary (whether administrator, executor, or personal representative), or both.  The proper Court is the Arkansas County of residence or the Arkansas County where the deceased had the most property.   This fiduciary serves under supervision of the court for period of at least 6 months.  It takes about 1 to 4 weeks to get someone appointed, so as a practical matter, it will take around 7 months to probate an estate in Arkansas in a best case scenario.  More practically, the timeline for probating an estate in Arkansas is something like:

Day 1:  Consultation, file setup, fee agreement, and information intake.

Day 2-10:  Draft of petition, review by client, revisions by lawyer.  Client returns signed and notarized petition.

Day 11-20:  Filing of petition, drafting of order admitting will to probate and appointing fiduciary.

Day 21-30: Client returns acceptance of appointment signed. Lawyer files acceptance. Clerk of Court issues letters of Administration.

Day 31-40:  Lawyer runs notice of probate in Newspaper of bona fide circulation.  Lawyer sends notice of probate to parties entitled to notice under statute.  Fiduciary files inventory with Court.

Day 41-220:  This is the six month claims period.  A lot can happen in this time.  Creditors may make claims.  Property might be sold to pay claims, etc.

Day 221-230:  Final inventory prepared.  Final accounting prepared.  Petition for final distribution. Petition to close. Orders for each.

The typical Arkansas probate is around 230 days plus or minus 20 days.  Usually, the time runs longer because clients don’t return signed papers as quickly as they should or some action gets delayed in hopes of avoiding expense (e.g. obtaining entries of appearance instead of filing formal notices).

How long does it take to go through probate in Arkansas?

“Going through probate” in layman’s terms means appointing a person to oversee the estate called an “administrator” or a “personal representative.”  This person serves under supervision of the court for period of at least 6 months.  It takes about 1 to 4 weeks to get someone appointed, so as a practical matter, it will take around 7 months to probate an estate in Arkansas in a best case scenario.

How long does it take to probate a will in Arkansas?

It takes as little a day to probate a will in Arkansas, but the will is subject to challenge for 60 days after giving notice by publication in a local newspaper of general circulation in that particular Arkansas county.  Probating a will in Arkansas is completely different from administering an estate in Arkansas.  That is, it is possible to probate a will in Arkansas without administering an estate in Arkansas and vice versa.  If the deceased has money tied up with financial institutions or significant personal property in Arkansas, then it is likely the estate will require an administration.  Administration of an estate in Arkansas has the additional benefit of barring the claims of unknown creditors.  Thus, where there is real property in the estate–such as a home–and the heirs wish to sell the home immediately, estate administration will allow the home sale to close sooner than if there were no administration.

Avoiding probate on small mineral interests in Arkansas.

Clients often call me with a request to probate a will to transfer title to some mineral rights in one of the oil or gas producing Arkansas counties.  Many times, the cost of the probate far exceeds the present value of the mineral rights.  For those mineral owners, it is too late.  The law requires a probate to transfer title if the deceased’s will leaves the property to someone other than the intestate heirs.  This most comes up frequently because many will leave property to a spouse or to a trust, and neither are intestate heirs under Arkansas law.

If you own mineral rights, and want to avoid probate in Arkansas, then an Arkansas Beneficiary Deed is a very good option.  The deed can automatically transfer your Arkansas mineral rights upon your death, much like a pay on death bank account.  Also like a pay on death bank account, the designated beneficiary can be any person, company, or charity.

In my opinion, an Arkansas Mineral Beneficiary Deed is the best option to avoid probate for clients with mineral interests in Arkansas who will have a gross estate that is less than the Federal Estate Tax Exemption.  Contact Law Offices of Mark Robinette for more information.

How to transfer land without a will in Arkansas.

Do you have only a tract of land in Arkansas?  If you live in another state and have a vacation home, rental property, timber land, or mineral interest in Arkansas, you may leave your family with a burden if you utilize a will to transfer title at your death.

Merely filing a will in the County real estate records in Arkansas is not enough.  The law will require your heirs to admit your will to probate.  The average probate costs around $2000.

There is a very low cost alternative to probate.  Act 1918 of 2005 allows beneficiary deeds.  This makes your Arkansas land or Arkansas mineral interest transfer ownership just like a pay on death bank account.  The best part is that it is very flexible and low cost.  The beneficiary of your land at your death can be a trust, company, person, or a charity.

Contact Law Offices of Mark Robinette to learn more.

In what Arkansas Counties can you utilize a beneficiary deed?  All 72, of course!  This includes Arkansas County, Ashley County, Baxter County, Benton County, Boone County, Bradley County, Calhoun County, Carroll County, Chicot County, Clark County, Clay County, Cleburne County, Cleveland County, Columbia County, Conway County, Craighead County, Crawford County, Crittenden County, Cross County, Dallas County, Desha County, Drew County, Faulkner County, Franklin County, Fulton County, Garland County, Grant County, Greene County, Hempstead County, Hot Spring County, Howard County, Independence  County, Izard County, Jackson County, Jefferson County, Johnson County, Lafayette County, Lawrence County, Lee County, Lincoln County, Little River County, Logan County, Lonoke County, Madison County, Marion County, Miller County, Mississippi County, Monroe County, Montgomery County, Nevada County, Newton County, Ouachita County, Perry County, Phillips County, Pike County, Poinsett County, Polk County, Pope County, Prairie County, Pulaski County, Randolph County, Saline County, Scott County, Searcy County, Sebastian County, Sevier County, Sharp County, St. Francis County, Stone County, Union County, Van Buren County, Washington County, White County, Woodruff County, Yell County

What is the statute of limitations for probating a will in Arkansas?

If the deceased is a resident of Arkansas, the time limit to probate a will is 5 years past the date of death.  With non-residents, the time limit is more flexible.  Any will admitted to probate in another state in a timely manner may be probated in Arkansas at any time.  There are date restrictions.  The will of anyone who died prior to the effective date of Act 166 of 1963, whether a resident or non-resident is subject to a strict 5 year statute of limitations.   Prior to Act 166 of 1963 and the effective date of Act 140 of 1949, the strict 5 year statute of limitations applied.  Prior to Act 140 of 1949, there was no statute of limitations.  The courts have contradictory holdings on the retrospective application of Act 140 of 1949.  Contact Law Offices of Mark Robinette to discuss if you face this complicated, but rare problem.

How long do I have to probate a will in Arkansas?

If the deceased is a resident of Arkansas, the time limit to probate a will is 5 years past the date of death.  With non-residents, the time limit is more flexible.  Any will admitted to probate in another state in a timely manner may be probated in Arkansas at any time.  There are date restrictions.  The will of anyone who died prior to the effective date of Act 166 of 1963, whether a resident or non-resident is subject to a strict 5 year statute of limitations.

Will of Pulaski County, Arkansas man ruled invalid for lack of testamentary capacity and undue influence.

In Shepard v. Jones, 2015 Ark. App. 279, a Pulaski County, Arkansas man’s will was found invalid after a lengthy and factually intensive trial.  In this case, the man was in hospice, on pain and anti-anxiety drugs, and barely conscious when his friend literally signed the will for him by holding the pen in the dying man’s hand and signing the man’s name.  In addition, the person procuring the will who was the man’s half-sister, withheld the fact that the dying man then owned $114,000 from the death of his sister.  The half-sister directed that the will she had prepared for her dying half-brother leave her and a family friend $365,000 while leaving the other heirs at law sums of $15,000 or less.

The facts of this case are excellent reading and law case book example of lack of capacity and undue influence.  In Arkansas, one seeking to dispose of his property by will must be able to retain in his mind, without prompting, the extent and condition of his property, to comprehend to whom he is giving it, and relations of those entitled to his property.  In this case, the man had no capacity whatsoever as evidenced by the trial court record.  The court’s recitation of the facts and circumstances leading up to the signing of the will is on pages 2 through 9 of the opinion.

If you have questions about the circumstances of the making of a loved one’s will, Arkansas probate and wills attorney Mark Robinette can provide you with valuable information about the law.  Lawyer Mark Robinette accepts probate cases in all 72 Arkansas counties.  Whether you need a full probate and administration of an estate or just probate of a will to clear title, Arkansas probate lawyer Mark Robinette can help you.

Wrongful Death and Probate in Arkansas: 3 Reasons to Act Fast.

The unthinkable happens.  A loved one is lost in a  tragic accident.  The shock is too much to bear.  The last thing on anyone’s mind is business.  There’s a funeral, the stream of relatives and well-wishers, phone calls from distant friends.   After that comes the silence and the contemplation of grief.   Grief paralyzes.  It becomes difficult to think clearly or even to take the first steps to act.  Opening an estate is the last thing on the minds of a grieving family, but acting fast is essential, and here are three reasons why.

1)  Nobody attorneys or lawyers will reach out to you for at least 30 days.

No doubt the drafters of the Arkansas Rules of Professional Conduct understood this tumultuous sequence of events after a tragic accident.  Rule 7.3 prohibits any lawyer solicitation of death claims within 30 days of death.  Only Arkansas lawyers who have a “family, close personal, or prior professional relationship” with the deceased may discuss wrongful death claims in person with the deceased’s family.  While the rules have an apparently noble purpose of preventing the intrusion of strange lawyers into the lives of grieving family at a vulnerable time, the Arkansas rules governing wrongful death lawyers don’t necessarily protect the legal interests of the family.

2)  Evidence of what really happened disappears, is destroyed, or is forgotten quickly.

Time begins to wear away at evidence immediately.  Potential witnesses leave the scene.  Faulty equipment or wrecked cars get scrapped.  The insurance company or risk management department of the individual or company at fault will have investigators on the scene immediately.   Their narrative of the accident takes hold in the minds of those present.  If your loved one was the victim, a case is already being built by the party at fault to minimize the damages to be paid to loved one’s estate.  It’s business.  Many large plaintiff attorney firms will send investigators to the scene of an accident for major disasters.   If your loved one died in a major disaster, you should question any large plaintiff’s firm that contacts you whether they had anyone at the scene of accident before hiring them.

3) There is a only a 30 day preference for will beneficiaries or heirs as personal representative/administrator/ of the estate.

After 30 days, any qualified person (over 21 and not a felon) can open an probate in Arkansas.  This means an estranged family member or other person who does not have the best interest of the rest of the family can interlope.  I’ve seen this happen first hand, and it causes more grief.  People are shocked to learn that their estranged family member can become administrator, hire an Arkansas wrongful death lawyer to pursue the claim, and cause all manner of family strife.

Conclusion

The 30 day non-solicitation rule after wrongful death in Arkansas has good intentions, but it may actually hurt families with wrongful death claims.  Immediately after the accident or disaster is the time to have a law firm investigate, but families of accident victims likely won’t learn this unless they have an Arkansas wrongful death or probate lawyer as a family friend who understands wrongful death claims because wrongful death lawyers cannot solicit employment for 30 days.  For the same reason, it is possible that a rogue family member or stranger can gain control of an estate because of the limited preference period for immediate family members as personal representative.