What Types of Deeds Are Recognized in Arkansas?
There are three main types of deeds for transferring Arkansas real estate during the owner’s life. The three Arkansas deed forms—quitclaim deeds, special warranty deeds, and warranty deeds—differ in the warranty of title (if any) the new owner receives.
Warranty of title is a guarantee given by the current owner (the grantor) to the new owner (the grantee) of the quality of the real estate title transferred by a deed. An owner who provides warranty of title promises that the new owner will receive valid ownership not tainted by undisclosed liens, mortgages, or third-party claims against the real estate.1
Arkansas Quitclaim Deed Form
An Arkansas quitclaim deed transfers real estate to a new owner with no warranty of title. The current owner quitclaims—or transfers without warranty—whatever title and rights he or she has in the property.2 But the current owner does not promise that the transferred title has no problems or that the current owner truly owns the property.
Owners often use Arkansas quitclaim deeds to transfer real estate for little or no payment, or consideration—such as a gift to a family member. Quitclaim deeds are also useful for changing how real estate is titled without affecting actual possession or control of the property.3 Arkansas quitclaim deeds typically state that the owner “grants, conveys, and quitclaims” the property to the new owner.
Arkansas Special Warranty Deed Form
An Arkansas special warranty deed gives the new owner partial warranty of title. The current owner guarantees a good, clear title, but the guarantee covers only title problems that come from the current owner’s ownership period.4 A problem rooted earlier or later in the property’s ownership history—or chain of title—is not covered by a special warranty deed’s warranty. Lawyers sometimes describe special warranty deeds as a compromise because they split the risk of title issues between the current and new owners.
Most special warranty deeds involve payment from the new owner. Arkansas special warranty deeds typically state that the current owner “grants, bargains, and sells” the property to the new owner and expressly limit the scope of the warranty—such as by saying it applies only to claims “by, through, or under the [current owner], but not otherwise.”
Arkansas General Warranty Deed Form
An Arkansas warranty deed—sometimes called a general warranty deed—transfers real estate with complete warranty of title. The current owner guarantees a good, clear title, and the guarantee covers the property’s entire chain of title. The current owner is responsible for any issues with the property’s title that the deed does not specifically exclude.
Arkansas warranty deeds tend to involve some payment and are common in home sales. A warranty deed typically states that the current owner “grants, bargains, and sells” or “grants, bargains, sells, and conveys” the real estate to the new owner. The deed must expressly define the warranty the current owner is giving.
What Types of Estate Planning Deeds Are Used in Arkansas?
Estate planning deeds allow a property owner to arrange to transfer real estate to a future owner without a will or probate. Deeds used in estate planning are designed to transfer property easily to the next generation and are less concerned with warranty of title.
Arkansas Transfer-on-Death Deed Form
A transfer-on-death deed form—usually called a beneficiary deed in Arkansas—names a beneficiary to take title to real estate when the owner dies.5 A property owner records an Arkansas beneficiary deed while still alive, but the deed does not actually transfer an interest in the property until the owner’s death.6 The owner retains the right to sell or mortgage the property—or revoke the beneficiary deed—until the owner dies.7
Arkansas Life Estate Deed Form
An Arkansas life estate deed creates a life estate—an ownership interest that lasts until the interest holder dies—and a remainder interest that follows the life estate. A property owner can create a life estate deed reserving the life estate to him or herself and naming a beneficiary to receive the property when the owner dies—with no need for probate. Unlike a beneficiary deed, a recorded life estate deed limits the owner’s power to transfer the property during life.
Arkansas Survivorship Deed Form
Survivorship deed is not a formal term under Arkansas law. When a survivorship deed is mentioned, it usually means a deed transferring property to two or more persons as joint tenants with right of survivorship. A deed of that sort can be useful in estate planning because a surviving joint tenant automatically gets a deceased joint tenant’s interest when that tenant dies. Probate is unnecessary.
What Are the Ways in Which Multiple Owners Can Jointly Own Arkansas Real Estate?
Arkansas law recognizes several methods for two or more owners to jointly hold title to real estate. The forms have different characteristics and can all be useful in certain cases.
Tenancy in Common
Tenancy in common involves co-owners—called tenants in common—with separate and distinct partial interests in a property. Arkansas deeds usually describe interests held by tenants in common as fractions or percentages of the whole property. For example, four tenants in common might each hold a 25 percent interest in a property. Tenants in common can individually transfer their part-interests by deed during life or by will at death.
Tenancy in common is considered the default position because, if a deed to multiple owners does not specify a co-ownership form, Arkansas law assumes they are tenants in common.8
Joint Tenancy with Right of Survivorship
Joint tenancy with right of survivorship is a co-ownership form that lets Arkansas real estate bypass probate.9 Right of survivorship means that when one joint tenant dies, the other automatically takes title to the deceased joint tenant’s share. A deed must clearly indicate the intent to create a joint tenancy.10
Tenancy by the Entirety
Tenancy by the entirety—sometimes called tenancy in the entirety—is a co-ownership form similar to joint tenancy with right of survivorship.11 The difference is that tenants by the entirety must be married spouses and must both consent to a transfer. Tenancy by the entirety also provides better protection against creditors than other co-ownership forms. An Arkansas deed creating a tenancy by the entirety typically names the new owners as “husband and wife” and says they receive title “as tenants by the entirety.”
Real Estate Ownership through Trusts
Two or more persons can co-own Arkansas real estate by transferring the property to a living trust. Ownership of real estate through a trust is not truly a co-ownership form but can work in the same way.
The same persons can be a trust’s beneficiaries—enjoying the benefits of the trust property—while also holding legal title as co-trustees. However, one person cannot be an Arkansas trust’s sole trustee and sole beneficiary.12
A deed transferring real estate to an Arkansas trust need not name the trust’s beneficiaries but must describe the trust in detail.13 Transferring title to a person named as a trustee is not enough to give him or her full title in a trust without further language identifying the trust. An Arkansas deed to trust typically transfers the property to the trustee “as trustee of the (name of the trust) Trust, dated (date of trust).”
What Are the Rules for Spousal Ownership of Arkansas Real Estate?
In Arkansas, the ways spouses can own real estate depend on whether the property is a homestead and the traditions of dower and curtesy.
Arkansas Homestead Rights
Among other things, homestead laws give married people certain rights in the family’s principal residence—also called the homestead. Arkansas, like many other states, requires both spouses to consent to a transfer of a homestead.14 A spouse consents to the transfer by signing the deed or recording another deed releasing his or her homestead rights. A deed transferring an Arkansas homestead owned by a married person must therefore have both spouses’ signatures, even if only one spouse owns the property.
Spouse’s Consent to Transfer of Non-homestead Real Estate
Arkansas is one of the few states that continue to recognize traditional common law rights of dower and curtesy. Dower and curtesy give one spouse legal rights in certain of the other spouse’s assets—particularly real estate.15 Arkansas law attaches dower rights to any real estate one spouse sells without the other spouse’s consent.16
A non-owner spouse can release his or her dower or curtesy rights by signing the deed that transfers the other spouse’s real estate.17 Failure to release the rights by joining in the deed can lead to future title problems—making it difficult to sell, borrow against, or obtain title insurance covering the property. The practical effect of Arkansas’ dower and curtesy laws is that both spouses should always sign a deed transferring real estate owned by either spouse—even if the property is not a homestead.18
Spousal Inheritance Rights
Arkansas gives surviving spouses a right to inherit property in a deceased spouse’s estate. If a deceased Arkansas resident is intestate—or dies with no will—the surviving spouse’s share is based on the length of the marriage and whether there are surviving children. A spouse’s intestate share in Arkansas is as follows:
- The surviving spouse receives the entire estate if the marriage length was at least three years and the deceased spouse has no surviving children.
- The surviving spouse receives one-half of the estate if the marriage length was under three years and the deceased spouse has no surviving children.
- The surviving spouse receives one-third of the deceased spouse’s personal property and a life estate in one-third of the real estate if the deceased spouse has surviving children.19
A surviving spouse also receives a life estate in the deceased spouse’s homestead unless the survivor has a separate homestead of his or her own.20
Spousal Elective Share
Arkansas law gives a surviving spouse married for over one year a waivable right to an elective share in the deceased spouse’s estate.21 The elective share avoids disinheritance by providing an alternative to the deceased spouse’s will. The share amount is equal to whatever real estate and personal property the surviving spouse would have inherited had the deceased spouse left no will. 22
Where Are Deeds Filed in Arkansas?
Arkansas deeds are recorded with the county recorder’s office for the county where the property is located.23 In most Arkansas counties, the circuit clerk acts as county recorder and is responsible for maintaining land records and recording deeds. In other counties, the county clerk serves as county recorder. A recorded deed serves as constructive notice of the transfer to third parties.24
Note. Ten Arkansas counties have two recording districts—each with its own recording office. Deeds in two-district counties must be recorded with the correct division—which can usually be identified using an earlier deed or legal description. The two-judicial-district counties and their office locations are:
- Arkansas County (DeWitt and Stuttgart);
- Carroll County (Berryville and Eureka Springs);
- Clay County (Corning and Piggott);
- Craighead County (Jonesboro and Lake City);
- Franklin County (Charleston and Ozark);
- Logan County (Paris and Booneville);
- Mississippi County (Blytheville and Osceola);
- Prairie County (Des Arc and Devalls Bluff);
- Sebastian County (Fort Smith and Greenwood); and
- Yell County (Danville and Dardanelle).
Does Arkansas Allow Electronic Recording?
The Arkansas Legislature has adopted the Uniform Real Property Electronic Recording Act (URPERA)—which allows recording of deeds in digital format.25 An electronic deed that meets statutory requirements qualifies as an original, written deed eligible for recording.26 A deed in digital format with the current owner’s “electronic signature” satisfies Arkansas’ requirement that deeds be signed.27 Not all Arkansas counties have implemented electronic recording.
What Is the Cost to File an Arkansas Deed?
The standard recording fee for Arkansas deeds is $15.00 for the first page and $5.00 each for any other pages.28 A county recorder who accepts and files a deed that doesn’t meet the requirements may charge an extra $25.00.29 County recorders may charge a transaction fee for payments made by credit card.30
Does Arkansas Charge a Transfer Tax for Real Estate Transfers?
Arkansas assesses a real property transfer tax on transfers of Arkansas real estate for payment of over $100.00.31 The tax amount is based on the payment provided in exchange for the property—including the amount of any purchase-money mortgage.32 The total transfer tax rate is $3.30 per $1,000.00.33 The buyer must pay $2.20 per $1,000.00 (or two-thirds of the total tax), which goes to the Arkansas Natural and Cultural Resources Fund. 34
The person requesting recording must demonstrate that either the transfer tax has been paid or the deed is exempt before the recorder can accept a deed.35 This is usually done with an attached affidavit of compliance, documentary stamp evidencing payment of the tax and/or one of the following certifications in the deed or attachment:
- I certify under penalty of false swearing that documentary stamps or a documentary symbol in the legally correct amount has been placed on this instrument.
- This instrument is exempt from the real property transfer tax.
The certification must include the new owner’s signature and address.36
Paying Arkansas Real Property Transfer Tax
The new owner must attach the correct documentary stamps to the deed to prove payment of transfer tax.37 Transfer tax is paid by buying documentary stamps from the Arkansas Department of Finance and Administration.38 A grantee can buy the stamps on the Arkansas Taxpayer Access Point—a state government website. The Department switched from adhesive stamps to a single 8½ × 11-inch document in 2013. The stamps are also available directly from the Department’s local revenue offices. The printed stamp should be included with the deed when submitted for recording.
Which Deeds Are Exempt from Arkansas’s Transfer Tax?
Deeds transferring real estate as a gift or for $100.00 or less in payment are not subject to Arkansas transfer tax.39 The Arkansas Code also lists 12 categories of real estate documents that are exempt from transfer tax.40 Deeds that fall within the exemptions include:
- Deeds to or from the United States or the State of Arkansas, or any agency, instrumentality, or political subdivision of either;
- Deeds given solely to secure a debt;
- Deeds made solely to correct or replace a prior deed for which transfer tax was fully paid at the time of recording;
- Deeds that transfer land sold for overdue taxes;
- Deeds that transfer only a leasehold interest in land;
- Timber deeds granting the right to remove timber for no more than 24 months;
- Deeds given by one spouse to the other spouse to divide marital property during a divorce;
- Deeds given in a judicial proceeding to enforce a security interest in real estate when the person who receives title is the person enforcing the security interest;
- Deeds in lieu of foreclosure;
- Deeds transferring real estate bought for under $60,000.00 if the purchase is financed by the FHA, US Dept. of Veterans Affairs, or Dept. of Agriculture and Rural Development, for which the seller must record the buyer’s sworn statement identifying the sale price and stating that neither the buyer nor the buyer’s spouse has owned a home within three years of closing;
- Deeds between business entities such as corporations and LLCs—or between an entity and an owner—relating to the organization, reorganization, merger, consolidation, capitalization, asset distribution, or liquidation of the entity;
- Arkansas beneficiary deeds (i.e., transfer-on-death deeds).
Does Arkansas Require Any Additional Forms When Recording a Deed?
Most Arkansas deeds must be accompanied by a real property transfer tax affidavit of compliance—or just affidavit of compliance—when filed for recording.41 The new owner or the new owner’s authorized agent signs the affidavit of compliance.42 The affidavit provides general information about the transaction and must identify either the purchase price or the reason the deed is exempt from transfer tax. 43
In most cases, a county recorder cannot record a deed without a signed affidavit of compliance. But the recorder can accept a deed with no affidavit if the deed clearly shows an exemption from transfer tax.44
An affidavit of compliance form can be obtained on the Department of Finance’s Arkansas Taxpayer Access Point website, where taxpayers pay transfer tax.
- See Ark. Code § 18-12-102.
- Holmes v. Countiss, 115 S.W. 2d 553 (Ark. 1938).
- See, e.g., Ark. Code § 18-12-106(b) (allowing an owner to create a deed to the owner and another person to create a joint tenancy with right of survivorship).
- Ark. Code § 18-12-102(b).
- Ark. Code § 18-12-608(a).
- Ark. Code § 18-12-608(a)(1)(B)(ii).
- Ark. Code § 18-12-608(d)(1).
- Ark. Code § 18-12-603 (there is an exception to the general rule if co-owners are identified as acting in a trustee or executor capacity).
- Ark. Code § 18-12-106(a).
- Ark. Code § 18-12-603.
- See Black v. Black, 135 S.W.2d 837 (Ark. 1940).
- Ark. Code § 28-73-402.
- Ark. Code § 18-12-604.
- Ark. Code § 18-12-403.
- Ark. Code § 28-11-301.
- Ark. Code § 28-11-301(b).
- Ark. Code § 18-12-402.
- Ark. Code § 28-11-201(a).
- See Ark. Code §§ 28-9-214, 28-11-301, 28-11-305.
- Ark. Code § 28-39-201.
- Ark. Code § 28-39-401(a).
- Ark. Code § 28-39-401(b).
- Ark. Code § 14-15-402(a).
- Ark. Code § 14-15-404(a)(1).
- Ark. Code §§ 14-2-301, et seq.
- Ark. Code § 14-2-303(a).
- Ark. Code § 14-2-303(b).
- Ark. Code § 21-6-306(a)(1).
- Ark. Code § 21-6-306(a)(2).
- Ark. Code § 14-15-402(b)(4)(B).
- Ark. Code § 26-60-105(a).
- Ark. Code § 26-60-101.
- Ark. Code § 26-60-105(a).
- Ark. Code § 26-60-105(b).
- Ark. Code § 26-60-110(a).
- Ark. Code § 26-60-110(b).
- Ark. Code § 26-60-107(b)(3)(B).
- Ark. Code § 26-60-109(a).
- Ark. Code § 26-60-105(a).
- Ark. Code §§ 26-60-102(1)-(12).
- Ark. Code § 26-60-107(a).
- Ark. Code § 26-60-107(b).
- Ark. Code § 26-60-107(2)(b).
- Ark. Code § 26-60-107(a)(2)(B).