Arkansas Living Trust

Introduction

Key Things to Know

1. 1

   Arkansas's funding trap: a deed conveying a married person's homestead into a trust is void unless the other spouse joins in signing it or acknowledges it separately (Ark. Code Ann. Section 18-12-403). Dower and curtesy (Section 28-11-301) also attach to any land a spouse held at any time during the marriage, so an unjoined deed can leave an inchoate spousal claim on the property even after it is retitled.

2. 2

   No notary or witness is required to create an Arkansas trust. Section 28-73-402(a) requires only capacity, intent, a definite beneficiary, and trustee duties, and Section 28-73-407 will enforce a purely oral trust on clear and convincing evidence. Capacity to create, amend, revoke, or fund the trust is the same standard used to make a will (Section 28-73-601(a)), and since Act 804 of 2021 an agent under a power of attorney may do all four if the power expressly grants that authority, with capacity measured at the date the power of attorney was signed (Section 28-73-601(b)).

3. 3

   Your homestead exemption survives funding into a revocable trust. Fitton v. Bank of Little Rock, 2010 Ark. 280, held that a married person with a beneficiary interest in a home she lives in keeps the homestead exemption even though title sits in a revocable trust. The underlying exemption is a fixed constitutional figure, not adjusted for inflation since 1874: Ark. Const. art. 9, Sections 4 and 5 cap it at 160 rural or one urban acre and $2,500, but the acreage floor (80 rural or one-quarter urban acre) applies without regard to value, which is what actually protects most homes.

4. 4

   Arkansas is not a community property state and has no elective opt-in regime. A married couple's protection instead comes from dower and curtesy (Section 28-11-301) and the spousal-joinder rule above. Arkansas's trust code still contains the Uniform Trust Code's community-property sentence at Section 28-73-602(b)(1), but it is effectively inoperative for Arkansas-source property since Arkansas never adopted a law preserving community character at death.

5. 5

   Arkansas has no percentage elective share, but a revocable trust is not immune from a surviving spouse's claim. In re Estate of Thompson, 2014 Ark. 237, pulled trust assets back into the estate for computing the spouse's dower or curtesy share where the settlor intended to defeat marital rights, on facts involving a trust holding far more than the probate estate. The right itself requires more than one year of continuous marriage (Section 28-39-401(a)).

6. 6

   A revocable trust gives you no protection from creditors during your life; Section 28-73-505(a)(1) exposes the whole trust to your creditors the same as property you own outright. After you die, Arkansas's version of the trust code leaves out the provision most other Uniform Trust Code states have that lets general creditors reach revocable-trust assets, so on the face of the statute those creditors typically have no route to the trust once the probate nonclaim period runs against an empty estate. That gap does not apply during your life and does not limit your spouse's separate dower or curtesy claim.

7. 7

   No Arkansas court or office requires you to register a living trust; the Arkansas Trust Code has no registration statute at all (Section 28-73-201(b)). A trustee can instead hand a bank or title company a certification of trust under Section 28-73-1013 without disclosing the dispositive terms, and a party who demands the full instrument in bad faith is liable for the trustee's resulting damages. Arkansas also imposes no estate or inheritance tax on a decedent's property.

Arkansas Requirements for Living Trust

• Arkansas Spousal Joinder on the Homestead Funding Deed

  Ark. Code Ann. Section 18-12-403 voids any deed affecting a married settlor's homestead unless the other spouse joins in executing it or acknowledges it by separate document. Arkansas's retained dower and curtesy (Section 28-11-301) can also leave a spousal claim on land conveyed without joinder. Include a spousal joinder or acknowledgment with any deed funding Arkansas homestead property into the trust.

• Arkansas Homestead Survives Trust Funding (Fitton)

  Fitton v. Bank of Little Rock, 2010 Ark. 280, holds that a married person with a beneficiary interest in a residence she occupies keeps the homestead exemption even though title is held by a revocable trust. The exemption's constitutional acreage floor (Ark. Const. art. 9, Sections 4-5) applies without regard to the home's value.

• Arkansas Real Property Transfer Tax Exemption Statement

  A gratuitous deed funding Arkansas real property into the trust carries no consideration, so the transfer tax under Section 26-60-105 computes to zero, but the deed must carry the exemption statement required by Section 26-60-110(b)(2)(C) or recording will be refused. A beneficiary deed naming the trustee under Section 18-12-608(c)(2) is exempt outright (Section 26-60-102(12)).

• Arkansas No Trust Registration; Certificate of Trust Available

  Arkansas has no trust registration statute (Section 28-73-201(b)). A trustee may instead give a bank, lender, or title company a certification of trust under Section 28-73-1013 that proves authority without disclosing the dispositive terms; a party demanding the full instrument in bad faith is liable for the trustee's resulting damages.

• Arkansas Power of Attorney May Fund or Amend the Trust

  Since Act 804 of 2021, an agent under a power of attorney may create, amend, revoke, or add property to the settlor's revocable trust if the power expressly grants that authority, with the settlor's capacity measured at the date the power of attorney was signed, not the date of the trust action (Section 28-73-601(b)).

• Arkansas Dower, Curtesy, and Trust Assets at the Settlor's Death

  Arkansas has no percentage elective share, but In re Estate of Thompson, 2014 Ark. 237, pulls revocable trust assets back into the estate for computing a surviving spouse's dower or curtesy share where the settlor intended to defeat marital rights. The right requires more than one year of continuous marriage (Section 28-39-401(a)).