Mutual Wills Package for Married Couple with Minor Children
Note: This summary is not intended
to be all-inclusive of the Arkansas law of wills, but does include basic
and other provisions. It does not include a discussion of handwritten
wills.
Who may make wills: Any person
of sound mind eighteen (18) years of age or older may make a will. 28-25-101.
Witnesses: Any person, eighteen (18) years
of age or older, competent to be witness generally in this state may act
as attesting witness to a will.
Interested Witness: No will is invalidated
because attested by an interested witness, but an interested witness, unless
the will is also attested by two (2) qualified disinterested witnesses,
shall forfeit so much of the provision therein made for him as in the aggregate
exceeds in value, as of the date of the testator's death, what he would
have received had the testator died intestate. No attesting witness
is interested unless the will gives to him some beneficial interest by
way of devise. An attesting witness, even though interested, may
be compelled to testify with respect to the will. 28-25-102.
Execution: The execution of a will must
be by the signature of the testator and of at least two (2) witnesses.
The testator shall declare to the attesting witnesses that the instrument
is his will and sign his name thereto. The signature must be at the end
of the instrument and the act must be done in the presence of two (2) or
more attesting witnesses. The attesting witnesses must sign at the
request and in the presence of the testator. 28-25-103.
Foreign execution: A will executed outside
this state in compliance with Arkansas law or a written will executed outside
this state in a manner prescribed by the law of the place of its execution
or by the law of the testator's domicile at the time of its execution shall
have the same force and effect in this state as if executed in this state.
28-25-105.
Affidavit of attesting witness: Any attesting
witness to a will may make and sign an affidavit before any officer authorized
to administer oaths in this state or in any other state stating such facts
as he would be required to testify to in an uncontested probate proceeding
concerning the will.
The attesting witness may make and sign the affidavit at any time,
either:
(1) On his own initiative; or
(2) At the request of the testator; or
(3) After the testator's death, at the request of the executor
or of any other person interested.
The affidavit shall be written on the will, or, if that is impracticable,
it shall be securely affixed to the will or to a true copy of the will
by the officer administering the oath.
If the probate of the will is uncontested, the affidavit may be
accepted by the probate court with the same effect as if the testimony
of the witness had been taken before the court. 28-25-106.
Incorporation of writing by reference: Any writing in existence
when a will is executed may be incorporated by reference if the language
of the will manifests this intent and describes the writing sufficiently
to permit its identification.
A will may refer to a written statement or list to dispose of items
of tangible personal property not otherwise specifically disposed of by
the will, other than money, evidences of indebtedness, documents of title,
securities, and property used in trade or business.
To be admissible under this subsection as evidence of the intended
disposition, the writing must either be in the handwriting of the testator
or be signed by him and must describe the items and devisees with reasonable
certainty.
The writing may be referred to as one to be in existence at the
time of the testator's death; it may be prepared before or after the execution
of the will; it may be altered by the testator after its preparation; and
it may be a writing which has no significance apart from its effect upon
the dispositions made by the will. 28-25-107.
Deposit of will with court in testator's lifetime - Disposition:
Deposit of Will. A will may be deposited by the person making it, or by
some person for him, with the probate court of the county of his residence,
to be safely kept until delivered or disposed of as hereinafter provided.
The clerk of the court, on being paid the fee of two dollars ($2.00) shall
receive and keep the will, and give a certificate of deposit for it.
How Enclosed. Every will intended to be deposited as aforesaid
shall be enclosed in a sealed wrapper, which shall have endorsed thereon
"Will of," followed by the name of the testator. The clerk of the court
shall endorse thereon the day when and the person by whom it was delivered.
The wrapper may also be endorsed with the name of the person to whom the
will is to be delivered after the death of the testator. It shall not be
opened or read until delivered to a person entitled to receive it, or otherwise
disposed of as hereinafter provided.
To Whom Delivered. During the lifetime of the testator, the will
shall be delivered only to him, or to some person authorized by him by
an order in writing duly signed by him and acknowledged before an officer
authorized to administer oaths or attested by the signatures of two (2)
persons competent to witness the will. After his death, the clerk shall
notify the person named in the endorsement on the wrapper of the will,
if there is a person so named, and deliver it to him.
When Will to Be Opened. If the will is not delivered to a person
named in the endorsement on the wrapper, it shall be publicly opened in
the court within thirty (30) days after notice of the testator's death,
and be retained by the court until offered for probate.
Notice shall be given to the executor, if any, named therein and
to such other persons as the court may designate. If the proper venue is
in another court, the will shall be transmitted to such court, but, before
such transmission, a true copy shall be made and retained in the court
in which the will was deposited. 28-25-108.
Revocation of wills: A will or any part thereof
is revoked:
1) By a subsequent will which revokes the prior will or part
expressly or by inconsistency; or
(2) By being burned, torn, cancelled, obliterated, or destroyed,
with the intent and for the purpose of revoking it by the testator or by
another person in his presence and by his direction.
If, after making a will, the testator is divorced or the marriage
of the testator is annulled, all provisions in the will in favor of the
testator's spouse so divorced are revoked. With these exceptions, no will
or any part thereof shall be revoked by any change in the circumstances,
condition, or marital status of the testator; subject, however, to the
provisions of § 28-39-401. 28-25-109.
Contracts affecting the devise of property: A contract
to make a will or devise, or not to revoke a will or devise, or to die
intestate, if executed after June 17, 1981, can be established only by:
(A) Provisions of a will stating material provisions of the contract; or
(B) An express reference in a will to a contract and extrinsic evidence
proving the terms of the contract; or
(C) A writing signed by the
decedent evidencing the contract. The execution of a reciprocal
or mutual will does not create a presumption of a contract not to revoke
the will. 28-24-101.
