Disclaimer: I am not a lawyer and this is not legal advice. This article explains general principles under Arkansas law to help you decide whether to consult an attorney.
Detailed Answer
If you want a newly created will to cancel (revoke) an older will without filing either document now with a court, Arkansas law allows you to do that by executing a properly drafted and properly executed new will. A new, validly executed will can automatically revoke prior wills if it contains an express revocation clause or if its terms are wholly inconsistent with the earlier instrument. You do not need to file either the old or new will with a court while you are alive; wills are normally filed for probate only after death.
How revocation works in practice
- Express revocation clause: The clearest method is to include language such as “I revoke all prior wills and codicils” near the start of the new will. That language makes your intent explicit and reduces the chance of disputes at probate.
- Inconsistent provisions: If the new will does not expressly revoke prior wills but contains provisions that directly conflict with the earlier will, the newer provisions will typically govern to the extent of the inconsistency, effectively revoking the earlier terms on those points.
- Physical act of revocation: You may also revoke a will by destroying it (burning, tearing, or otherwise destroying it) with the intent to revoke. Arkansas recognizes revocation by physical act carried out by the testator or at the testator’s direction and in the testator’s presence.
- Codicils: A codicil is a legally executed amendment to a will. A codicil can modify or revoke parts of a will but must be executed with the same formalities as a will.
Execution requirements to make the new will valid in Arkansas
Your new will must satisfy Arkansas’s formal signing and witnessing rules to be valid. Generally this means the testator must sign the will (or direct another to sign at the testator’s direction) and the will must be attested by the required number of competent witnesses present at the time of signing. To make later probate smoother, many people also execute a self-proving affidavit before a notary so the witnesses do not have to appear in court after the testator’s death.
Because formal requirements are strict, an otherwise well‑intentioned document may fail to revoke prior wills if it is not properly executed.
Do I need to file either will with the court now?
No. In Arkansas you do not normally file a will with the probate court while you are alive. The usual procedure is to keep the original signed will in a safe place (or give it to a trusted person, attorney, or safe-deposit facility) and only submit it to probate court after death. Filing both documents now is not necessary and may create unnecessary risk of loss, misplacement, or reveal testamentary plans prematurely.
Practical steps to replace an old will safely
- Draft the new will and include an explicit revocation clause such as “I hereby revoke all prior wills and codicils.”
- Execute the new will following Arkansas formalities: sign it and have the required witnesses sign in the presence required by law.
- Consider adding a self‑proving affidavit (notarized) so witnesses are not required to testify at probate.
- Ensure the old will is physically destroyed by you (if you choose that method) or clearly marked as revoked, or simply keep the new original in a secure place and inform the executor where to find it. If you destroy the old will, do so in a way that clearly shows your intent to revoke it (for example, tearing or burning the original in your presence).
- Tell your chosen executor and a trusted person where the original will is stored, but do not send the original to the court during your lifetime.
Statutory guidance
Arkansas law treats revocation by later instrument and by physical act as valid ways to revoke a will. For the governing statutory provisions on wills and revocation, see Arkansas Code Title 28 (Decedents’ Estates). You can review Title 28 and the specific sections on wills and revocation on the Arkansas General Assembly website: https://www.arkleg.state.ar.us/. For practical probate information, see the Arkansas Judiciary website: https://www.arcourts.gov/.
When to get legal help
Talk with an estate planning attorney if any of the following apply: large or complicated estate; blended family or contested beneficiaries; you expect a challenge (undue influence, lack of capacity); you signed an earlier estate planning contract (for example, a mutual will or contract not to revoke); or you want to make changes but are unsure about formalities. An attorney can draft clean revocation language, prepare a self‑proving affidavit, and advise on safely disposing of older wills.
Helpful Hints
- Use clear, explicit revocation language in the new will to avoid ambiguity.
- Always follow Arkansas witness and signing rules when executing the new will; skip formalities and the will may be invalid.
- Consider a self‑proving affidavit (notarized) so witnesses don’t have to testify at probate.
- Keep the original new will in a secure, known location and tell your executor where it is.
- Destroy the old will yourself if you want, but do so deliberately and document what you did (witness or video) to avoid disputes later.
- Update related documents—beneficiary designations on retirement accounts, life insurance, and payable‑on‑death accounts—because those often override a will.
- If you used a do‑it‑yourself form, have a lawyer review the new will to confirm it meets Arkansas law.
For statutory text and more detail, review Arkansas Code Title 28 (Decedents’ Estates) at the Arkansas General Assembly website: https://www.arkleg.state.ar.us/. For court procedures and probate forms, see the Arkansas Judiciary site: https://www.arcourts.gov/.