Subtitle 1. General Provisions

Chapter 1 General Provisions

Publisher's Notes. For Comments regarding the Probate Code of 1949, see Commentaries Volume B.

Cross References. Powers of fiduciary, inclusion in trust instrument by reference, § 28-69-301 et seq.

Preambles. Acts 1957, No. 29, contained a preamble which read:

“Whereas, the purpose of having official documents served or transmitted by registered mail is to establish proof of mailing and delivery through the system of receipts provided for such mail; and

“Whereas, the Postmaster General has recently established the certified mail service which provides a cheaper means for the transmission of such documents and at the same time provides a system of receipts to prove mailing and delivery….”

Effective Dates. Acts 1951, No. 255, § 15: Mar. 19, 1951. Emergency clause provided: “The General Assembly has ascertained that there is a likelihood of misconstruction of certain provisions of the Probate Code, and that an urgent need exists for clarification thereof and certain additions thereto in order that the law relating to proceedings in probate may be construed and administered in a uniform manner throughout the State, in accordance with the legislative intent; for the accomplishment of which purposes this Act is adopted. An emergency is therefore declared to exist, and this Act, being necessary for the immediate preservation of the public peace, welfare and safety, shall take effect and be in force from and after its passage and approval.”

Acts 1975, No. 620, § 16: July 1, 1975.

Research References

Ark. L. Rev.

Acts 1949 General Assembly — Act 140 The Probate Code, 3 Ark. L. Rev. 375.

U. Ark. Little Rock L.J.

Arkansas Law Survey, Looney, Decedents' Estates, 8 U. Ark. Little Rock L.J. 139.

28-1-101. Title.

This act may be cited as the “Probate Code”.

History. Acts 1949, No. 140, § 1; A.S.A. 1947, § 62-2001.

Meaning of “this act”. Acts 1949, No. 140, codified as §§ 28-1-10128-1-104, 28-1-106, 28-1-10828-1-113, 28-1-115, 28-1-116, 28-24-101, 28-24-102, 28-25-10128-25-105, 28-25-10828-25-110, 28-26-10128-26-105, 28-39-101, 28-39-105, 28-39-40128-39-407, 28-40-10128-40-123, 28-41-10128-41-104, 28-42-10128-42-109, 28-48-10128-48-105, 28-48-10728-48-109, 28-48-20128-48-209, 28-48-30128-48-305, 28-49-10128-49-117, 28-50-10128-50-114, 28-51-10128-51-109, 28-51-20128-51-203, 28-51-30128-51-309, 28-52-10128-52-110, 28-53-10128-53-109, and 28-53-11128-53-119.

28-1-102. Definitions.

  1. As used in the Probate Code:
    1. “Child” denotes a natural or adopted child, but does not include a grandchild or other more remote descendant or an illegitimate child except such as would inherit under the law of descent and distribution;
    2. “Claims” includes liabilities of the decedent which survive, whether arising in contract or tort or otherwise, funeral expenses, the cost of a tombstone, expenses of administration, and estate and inheritance taxes;
    3. “County”, as applied to counties having more than one (1) district, means “district” unless the sense in which it is used or the applicable law indicates otherwise;
      1. “Devise”, when used as a noun, means disposition of real or personal property, or both, by will.
      2. “Devise”, when used as a verb, means to dispose of real or personal property, or both, by will;
    4. “Devisee” includes legatee;
    5. “Distributee” denotes a person entitled to real or personal property of a decedent, either by will, as an heir, or as a surviving spouse;
    6. “Estate” denotes the real and personal property of the decedent or ward as from time to time changed in form by sale, reinvestment, or otherwise and as augmented by any accretions and additions and substitutions and diminished by any decreases and distributions;
    7. “Fiduciary” includes personal representative, guardian, and testamentary trustee;
    8. “Foreign personal representative” means a personal representative serving under appointment made by a court of competent jurisdiction of another state or territory of the United States or the District of Columbia;
    9. “Heir” denotes a person entitled by the law of descent and distribution to the real and personal property of an intestate decedent, but does not include a surviving spouse;
    10. “Interested persons” includes any heir, devisee, spouse, creditor, or any other having a property right, interest in, or claim against the estate being administered, and a fiduciary;
    11. “Lease” includes an oil, gas, or mineral lease;
    12. “Legacy” means a disposition of personal property by will;
    13. “Legatee” means a person entitled by will to personal property;
    14. “Letters” includes letters testamentary, of administration, and of guardianship;
    15. “Mortgage” includes deed of trust and vendor's lien;
    16. “Net estate” refers to the real and personal property of a decedent exclusive of homestead rights, dower, family allowances, and enforceable claims against the estate;
    17. “Person” includes a corporation, partnership, or other legal entity;
      1. “Personal representative” means an executor or administrator.
      2. However, for purposes of obtaining autopsy results that are in the medical records, the personal representative is the first of the following individuals or category of individuals who exists when the request for a copy of the autopsy results maintained in the medical records is made:
        1. The executor or administrator;
        2. The decedent's spouse;
        3. A parent of the decedent; or
        4. An adult child of the decedent; and
    18. “Will” includes codicil.
  2. As used in the Probate Code:
    1. The singular includes the plural, and the plural includes the singular; and
    2. The masculine gender includes the feminine and neuter.

History. Acts 1949, No. 140, § 3; A.S.A. 1947, § 62-2003; Acts 2011, No. 722, § 1.

Publisher's Notes. The Probate Code, referred to in this section, is codified as set out in the note following § 28-1-101.

Amendments. The 2011 amendment added (19)(B).

Case Notes

Child.

The General Assembly did not intend for a grandchild to be defined as a child under subdivision (a)(1) of this section. McCoy v. Walker, 317 Ark. 86, 876 S.W.2d 252 (1994).

Because there is no comma separating “illegitimate child” and the modifier “except such as would inherit under the law of descent and distribution” in subdivision (a)(1) of this section, the General Assembly intended for “except such as would inherit…” to modify only “illegitimate children.” McCoy v. Walker, 317 Ark. 86, 876 S.W.2d 252 (1994).

The phrase “except such as would inherit under the law of descent and distribution” in subdivision (a)(1) of this section does not modify the word “grandchild.” McCoy v. Walker, 317 Ark. 86, 876 S.W.2d 252 (1994).

The minor grandchildren of a decedent who would inherit from the decedent under the laws of descent and distribution do not have homestead rights under § 28-39-201, because they do not fall within the definition of “child” in subdivision (a)(1) of this section. McCoy v. Walker, 317 Ark. 86, 876 S.W.2d 252 (1994).

Decedent's illegitimate, pretermitted child was not entitled to inherit from decedent as he was required to meet requirements of § 28-39-407(b), subdivision (a)(1) of this section, and the six requirements of § 28-9-209(d), but he failed to show that he had been recognized by the decedent or by a court and he failed to file his action within 180 days of decedent's death. Shelton v. Keathley, 367 Ark. 568, 242 S.W.3d 223 (2006).

Claims.

Definition of word “claims” used in Probate Code to include estate taxes applies to “claims” only as it is used in Probate Code and has nothing to do with the apportionment of estate taxes. Williamson v. Williamson, 224 Ark. 141, 272 S.W.2d 72 (Ark. 1954).

Where a lawsuit pending in a circuit court was not a claim against the estate, but was a suit against the executor individually, the court did not err in closing the estate since there was no pending claim against the estate as defined by subdivision (2) of this section. Bostic v. Bostic Estate, 281 Ark. 167, 662 S.W.2d 815 (1984).

Distributees.

Both the widow and heirs at law are distributees of a solvent intestate estate under this section and § 28-53-113 and therefore secured debts are to be discharged out of the general estate, unpledged personal property, where the creditor does not pursue the security which gives the widow a dower right in the entire security free from the debt. Wilcox v. Brewer, 224 Ark. 546, 274 S.W.2d 777 (1955).

Interested Persons.

Where administrator is removed for failure to qualify and physical incapacity, it is unnecessary for the court to determine whether person bringing matter to court's attention was an interested party. Davis v. Adams, 231 Ark. 197, 328 S.W.2d 851 (1959).

Since, under § 28-25-102, an attesting witness to be “interested” must receive a beneficial interest by way of devise, an attorney signing will as attesting witness was not “interested,” although the firm with which he was associated was named to represent the estate. Rosenbaum v. Cahn, 234 Ark. 290, 351 S.W.2d 857 (1961).

One claiming damages for the alleged negligence of the decedent is not an interested person within the definition of this section. Doepke v. Smith, 248 Ark. 511, 452 S.W.2d 627 (1970).

Where plaintiffs filed an action against the administrator prior to his resignation as administrator, plaintiffs were “interested parties” within the meaning of this section and “aggrieved parties” within the meaning of § 28-1-116 for purposes of appealing from probate orders that affected those proceedings. However, as such a resignation is ordinarily a matter of discretion for the probate judge and in this case had no effect on venue and § 28-48-107 gives plaintiffs a remedy for the appointment of another administrator, there was no abuse of discretion in allowing the resignation to stand. Barkley v. Cullum, 252 Ark. 474, 479 S.W.2d 535 (1972).

Once a trial judge rejects the report on the public sale of estate land, the status of the parties who had bid for the land can no longer be described as interested parties; at best, their position is that of potential bidders at any future sale, and hence they have no standing to contest a petition on behalf of the heirs of an estate. Estate of Hodges v. Wilkie, 14 Ark. App. 297, 688 S.W.2d 307 (1985).

Where the decedent died testate and left them nothing under the will, the decedent's surviving children were not heirs and were not creditors, and were thus not “interested persons” as that term is used in subdivision (a)(11) of this section, § 28-48-105(a)(2), or § 28-48-107(a). Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994).

On petition to probate court to set aside order authorizing sale of decedent's land, where petitioners were not heirs or creditors, where their petition did not assert any claim against the estate or declare any interest in the estate's property, and where they did not indicate any entitlement to proceeds which might be distributed by the estate, but in fact were persons against whom the estate had sought relief, the petitioners were not interested persons as defined by subdivision (a)(11) and had no standing to question the issuance of the court's order. White v. Welsh, 323 Ark. 479, 915 S.W.2d 274 (1996).

Appellant was an “interested person” as defined in subdivision (a)(11) where appellant was specifically named in the will as a beneficiary of a trust; the fact that appellant was a beneficiary of the trust meant that appellant had “an interest in the estate.” Spicer v. Estate of Spicer, 55 Ark. App. 267, 935 S.W.2d 576 (1996).

Appellants were interested persons entitled to seek removal of an estate's personal representative where they were potential heirs of the intestate estate. Snowden v. Riggins, 70 Ark. App. 1, 13 S.W.3d 598 (2000).

Although appellant argued that there was no evidence that anyone received notice of the hearing set on the final accounting, which appellant claimed violated § 28-1-112, the argument was without merit, given the notices that the trial court sent out after excluding appellant from distribution of the estate, and appellant conceded to having received actual notice in any event and possibly not having been entitled to notice in the first place; because appellant had been excluded, she was not an interested person under subdivision (11) of this section and so there was no legal requirement that she be served notice, and she lacked standing to complain about the failure to send notice to others who had not appealed. Seymour v. Biehslich, 371 Ark. 359, 266 S.W.3d 722 (2007).

Appellee was not an “interested person” as defined in subdivision (a)(11) of this section with standing to petition the probate court. Appellee failed to offer any testimony that there was a service contract between the decedent and herself, and there was no evidence that the services she provided for the decedent were of any extraordinary character. Lucas v. Wilson, 2011 Ark. App. 584, 385 S.W.3d 891 (2011).

Because appellant, an heir of the decedent and devisee under the will, was made a party to the probate action when the circuit court granted his motion to intervene under Ark. R. Civ. P. 24, the circuit court erred by determining that he was not entitled to notice of a hearing on a motion to remove the estate executrix. The Court of Appeals of Arkansas held that appellant was an “interested person” as defined in subdivision (11) of this section. Maxwell v. Estate of Maxwell, 2012 Ark. App. 174 (2012).

Person.

Probate court erred in finding that the limited liability company lacked standing to bring a petition for the determination of heirship, because the limited liability company alleged in the petition that it was a legal entity, so it was a person and could bring the petition; “person” was defined under subdivision (18) of this section to include a corporation, partnership, or other legal entity. McVesting, LLC v. Heirs of Macie McGoon, 2012 Ark. App. 541 (2012).

Personal Representative.

The term “personal representative” includes both general and special administrators. Nickles v. Wood, 221 Ark. 630, 255 S.W.2d 433 (1953).

Tests.

While a prosecuting attorney clearly has a duty to disclose all pertinent test on tangible items pursuant to ARCrP 17.1, the prosecutor is not required to make certain scientific tests on all materials seized. State v. Pulaski County Circuit Court, 316 Ark. 514, 872 S.W.2d 414 (1994).

Cited: Holt v. Moody, 234 Ark. 245, 352 S.W.2d 87 (1961); Doepke v. Smith, 248 Ark. 511, 452 S.W.2d 627 (1970); Sutton v. Milburn, 289 Ark. 421, 711 S.W.2d 808 (1986); Sanders v. Ryles, 318 Ark. 418, 885 S.W.2d 888 (1994); Dunklin v. Ramsay, 328 Ark. 263, 944 S.W.2d 76 (1997); Tatro v. Langston, 328 Ark. 548, 944 S.W.2d 118 (Ark. 1997); Barrera v. Vanpelt, 332 Ark. 482, 965 S.W.2d 780 (1998).

28-1-103. Effect of code.

  1. Effective Date. The Probate Code shall take effect on July 1, 1949, except that, when its application, or parts thereof, would not be feasible or would work injustice in particular proceedings then pending, the former procedure shall apply.
  2. Rights Not Affected. Acts done and rights accrued prior to July 1, 1949, shall not be affected or impaired by its provisions. When a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time which has commenced to run by the provision of any statute in force before the Probate Code takes effect, the provision shall remain in force and be deemed a part of the Probate Code with respect to such a right.

History. Acts 1949, No. 140, § 2; A.S.A. 1947, § 62-2002.

Publisher's Notes. The Probate Code, referred to in this section, is codified as set out in the note following § 28-1-101.

Case Notes

Exceptions.

The probate of a will which, together with necessary proof of its execution, had been filed with the probate clerk in 1947, but which the clerk had failed to enter an order admitting to probate came within the exceptions of this section, and § 28-40-103 limiting the time for probate did not apply. Muldrew v. Dodson, 237 Ark. 852, 376 S.W.2d 672 (1964).

Rights Arising Prior to Code.

Proceeding in 1950 to probate will of person who died in 1935 was not barred by five-year limitation period contained in 1949 Code, since Probate Code is not retroactive. Hudson v. Hudson, 219 Ark. 211, 242 S.W.2d 154 (1951).

This section is not retroactive, and therefore a probate court was not authorized to hear a petition to set aside prior order of probate court disposing of estate in 1943 on grounds that petitioner was actual heir since only the circuit or chancery courts could determine questions of heirship at that time. Adams v. Hart, 228 Ark. 687, 309 S.W.2d 719 (1958).

Cited: Mosely v. Mosely, 217 Ark. 536, 231 S.W.2d 99, 18 A.L.R.2d 695 (1950).

28-1-104. Probate proceedings.

The circuit court shall have jurisdiction over:

  1. The administration, settlement, and distribution of estates of decedents;
  2. The probate of wills;
  3. The persons and estates of minors;
  4. Persons of unsound mind and their estates;
  5. The determination of heirship or of adoption;
  6. The restoration of lost wills and the construction of wills when incident to the administration of an estate; and
  7. All such other matters as are provided by law.

History. Acts 1949, No. 140, §§ 4, 5; A.S.A. 1947, §§ 62-2004, 62-2005; Acts 2003, No. 1185, § 268.

Research References

Ark. L. Rev.

Minimum Standards of Judicial Administration — Arkansas, 5 Ark. L. Rev. 1, 22.

Amendments of the Probate Code, 7 Ark. L. Rev. 377.

Conflict of Laws: Arkansas 1969-72, 27 Ark. L. Rev. 27.

Case Notes

Adoption.

The probate court is vested with both inherent and statutory authority to close adoption records; a writ of prohibition will not lie to prevent a probate court from sealing adoption records. Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994).

For purposes of § 9-9-212, appellants claimed that the failure to file a home study for the adoption of the child was jurisdictional and required reversal; however, under subdivision (5) of this section, the trial court had jurisdiction to determine the child's adoption and any error in relying on appellees’ home study had to be raised in the trial court to be preserved for review. Wilson v. Golen, 2013 Ark. App. 267, 427 S.W.3d 723 (2013).

Authority of Court.

A probate court has authority, on a proper showing, to set aside any order that it makes at the same term of court. Knight v. Worthen Bank & Trust Co., 233 Ark. 465, 345 S.W.2d 361 (1961).

In order to establish lost will, probate court must follow dictates of this section. Conkle v. Walker, 294 Ark. 222, 742 S.W.2d 892 (1988).

Chancery Courts.

Chancery courts could interfere in guardians' settlements to correct fraud, or relieve against accident, or upon some other acknowledged ground of equity jurisdiction. Nelson v. Cowling, 77 Ark. 351, 91 S.W. 773 (1906) (decision under prior law).

A chancery court has no jurisdiction to probate wills or settle and distribute a decedent's estate even though a will has not been probated nor letters of administration issued. Gaylor v. Gaylor, 224 Ark. 644, 275 S.W.2d 644 (1955).

The distribution of assets contained in a deceased husband's testamentary marital trust need not pass through the wife's estate; the probate court acted properly by deferring the trust and distribution issues to the chancery court. Clement v. Larkey, 314 Ark. 488A, 314 Ark. 498, 863 S.W.2d 578 (1993).

Claims Against Estate.

It was not error for the probate court to grant the petition of administrator to grant a lien upon decedent's real estate and to revive a judgment allowing claims, as § 28-50-105 specifically permits an order allowing claims against an estate the effect of a judgment, and this section gives the probate court the same powers to carry out its judgments as exist in courts of general equity. Price v. Price, 253 Ark. 1124, 491 S.W.2d 793 (1973).

Closing of Estate.

While a probate court is not the proper forum to enforce contractual rights, where a contract provided for completion after close of administration and no action was being taken to close estate, it was proper to bring proceedings in the probate court to obtain a closing of the estate. Davis v. Adams, 231 Ark. 197, 328 S.W.2d 851 (1959).

Collateral Attack.

In collateral proceeding attacking judgment of a probate court, every fact necessary to give the court jurisdiction will be conclusively presumed in favor of jurisdiction where the record is silent. Redditt v. Hale, 199 F.2d 386 (8th Cir. 1952), cert. denied, 345 U.S. 908, 73 S. Ct. 647 (1953).

The judgment of a probate court approving accounts of resident guardian of nonresident incompetents could not be attacked in collateral proceeding in federal district court where no fraud was charged, but only that resident guardian had not realized as much as should have been realized. Redditt v. Hale, 199 F.2d 386 (8th Cir. 1952), cert. denied, 345 U.S. 908, 73 S. Ct. 647 (1953).

When a probate court has acted within its jurisdiction, its judgments are not open to collateral attack. When a probate court acts without its jurisdiction, however, its judgments are void and subject to collateral attack. Filk v. Beatty, 298 Ark. 40, 764 S.W.2d 454 (1989).

A judgment cannot be collaterally attacked unless it is void on the face of the record or the probate court is shown to have lacked subject-matter jurisdiction. Rowland v. Farm Credit Bank, 41 Ark. App. 79, 848 S.W.2d 433 (1993).

Dower.

A probate court had jurisdiction in matters of dower. Carter v. Younger, 112 Ark. 483, 166 S.W. 547 (1914) (decision under prior law).

Enforcing Compromise Claim.

A probate court had no jurisdiction to enforce a compromise of a ward's claim against an insurance company, such jurisdiction being in the circuit court. Union Cent. Life Ins. Co. v. Boggs, 188 Ark. 604, 66 S.W.2d 1077 (1934) (decision under prior law).

Equitable Relief and Doctrines.

Probate courts were held to be without jurisdiction to confer equitable relief; however in probate matters properly brought before them they could apply equitable doctrines. Jones v. Graham, 36 Ark. 383 (1880) (decision under prior law).

Exhumation.

Although not specifically enumerated in this section, an appellate court had jurisdiction over a request to exhume a body because the decedent's personal representative petitioned the probate division of the circuit court, during administration of the decedent's estate, to enforce a provision in the decedent's will by ordering exhumation and reburial and probate orders were appealable pursuant to § 28-1-116(a) and Ark. R. App. P. Civ. 2(a)(12). Long v. Alford, 2010 Ark. App. 233, 374 S.W.3d 219 (2010).

Fees of Attorneys and Guardians.

A probate court had no jurisdiction of a claim by an attorney for services in prosecution of claim in behalf of an estate. Pike v. Thomas, 62 Ark. 223, 35 S.W. 212 (1896); Parker & Parker v. Mayo, 72 Ark. 513, 83 S.W. 324 (1904) (decision under prior law).

A probate court had no jurisdiction to audit claim against administrator for heirs' attorney's fee. Paget v. Brogan, 67 Ark. 522, 55 S.W. 938 (1900) (decision under prior law).

Probate courts could authorize the employment of counsel by the administrator and could allow fees for such services rendered as necessary expenses of administration. Paget v. Brogan, 67 Ark. 522, 55 S.W. 938 (1900) (decision under prior law).

Where the term at which fees of an attorney and a guardian had been ordered was allowed to lapse, the executor could not have an order allowing the fees set aside except by filing a petition which complied with the requirements of former Arkansas Statutes Annotated §§ 29-506 and 29-508. Hobbs v. Dowds, 233 Ark. 501, 345 S.W.2d 925 (1961).

Gift Inter Vivos.

A probate court was without jurisdiction to decide the ownership of jewelry claimed as a gift inter vivos from the testator. Huff v. Hot Springs Savs., Trust & Guar. Co., 185 Ark. 20, 45 S.W.2d 508 (1932) (decision under prior law).

Homestead.

A probate court had jurisdiction to order sale of decedent's homestead. Huffstedler v. Kibler, 67 Ark. 239, 54 S.W. 210 (1899) (decision under prior law).

A probate court had no jurisdiction of an action by a widow against the heirs of her deceased husband to recover a homestead of which they were in adverse possession. James v. James, 72 Ark. 329, 80 S.W. 148 (1904) (decision under prior law).

Jurisdiction and Powers Generally.

A probate court had only such jurisdiction as was conferred by statute and the Arkansas Constitution. Lewis v. Rutherford, 71 Ark. 218, 72 S.W. 373 (1903) (decision under prior law).

The jurisdiction of probate courts was limited in its general scope as to the subject matter to the undisputed property of decedents and of wards, and, as to persons, to those interested in such property as equitably or legally entitled to some distributive share therein, or in the residue, and as to creditors who voluntarily, upon general notice and without special citation, present their claims. Huff v. Hot Springs Savs., Trust & Guar. Co., 185 Ark. 20, 45 S.W.2d 508 (1932) (decision under prior law).

The probate court is a court of special and limited jurisdiction, having only such jurisdiction and powers as are conferred by the constitution or by statute, or necessarily incidental to the exercise of the jurisdiction and powers specifically granted. Carpenter v. Logan, 281 Ark. 184, 662 S.W.2d 808 (1984).

Lost or destroyed wills are generally established by an action in chancery, but probate court has additional jurisdiction in matters of heirship, adoption, and, concurrent with jurisdiction of other courts, jurisdiction to restore lost wills and for the construction of wills when incident to the administration of an estate. Conkle v. Walker, 294 Ark. 222, 742 S.W.2d 892 (1988).

Neither the Arkansas Constitution nor this section confers on probate courts jurisdiction to administer a trust created by a will. Clement v. Larkey, 314 Ark. 488A, 314 Ark. 498, 863 S.W.2d 578 (1993).

The construction, interpretation, and operation of trusts are matters within the jurisdiction of the courts of equity; neither the Arkansas Constitution nor this section confers on probate courts jurisdiction to administer a trust created by a will. Long Trust v. Holk, 315 Ark. 112, 864 S.W.2d 869 (1993).

The probate court had subject matter jurisdiction to determine title to the real property where the appellant was a beneficiary of the testator's will, even though appellant was not acting in that capacity by asserting her claim to this property. Williams ex rel. Tucker v. Titterington, 46 Ark. App. 322, 881 S.W.2d 226 (1994).

Generally speaking, lost or destroyed wills are established by an action in chancery under § 28-40-301; however, subdivision (a)(6) of this section grants probate court jurisdiction (concurrent with the jurisdiction other courts) over the restoration of lost wills and for the construction of wills when incident to the administration of an estate. Gilbert v. Gilbert, 47 Ark. App. 37, 883 S.W.2d 859 (1994).

Trial court erred in awarding a law firm an attorney's fee of $11,902.47 as the claim was barred by res judicata as: (1) in a first suit, the firm was denied relief for breach of contract and quantum meruit; (2) Ark. Const. Amend. 80 granted the trial court jurisdiction to rule on all claims of relief, legal and equitable; (3) jurisdiction was proper in the first suit under this section, and the first suit fully and finally settled all issues between the firm and the clients; and (4) both suits involved the same parties, and the same claims. Hooten v. Mobley Law Firm, P.A., 2011 Ark. App. 778, 387 S.W.3d 298 (2011).

Jurisdiction over Administrators.

A probate court could render summary judgment on an administrator's bond for the payment of assets found to be in his hands and which it had ordered to be paid over. Planters' Mut. Ins. Ass'n v. Harris, 96 Ark. 222, 131 S.W. 949 (1910) (decision under prior law).

A probate court had jurisdiction to set aside administrator's sale and to remove administrator. Hall v. Cox, 104 Ark. 303, 149 S.W. 80 (1912) (decision under prior law).

Jurisdiction Over Assets.

The jurisdiction of the probate court over the estates of deceased persons was held to be confined to the administration of assets which came under its control and, incidentally, to compel the discovery of assets. Shane v. Dickson, 111 Ark. 353, 163 S.W. 1140 (1914) (decision under prior law).

A probate court had jurisdiction to require an executor to disclose assets of the estate, including what, if anything, he owed the estate on notes or otherwise and to require him to charge himself with any amount he may have wrongfully paid to himself or to others without presenting the claim to the court for allowance. Gocio v. Seamster, 203 Ark. 937, 160 S.W.2d 194 (1942) (decision under prior law).

Probate court did not have jurisdiction over suit by administrator of the estate to collect a debt alleged to be due to the estate by the defendant, where defendant was not an heir, distributee, or beneficiary, and was a third person or stranger to the estate. Estate of Puddy v. Gillam, 785 S.W.2d 254 (1990).

Laches of Creditor.

A probate court had jurisdiction to determine whether or not creditors had, by laches, lost the right to subject the real estate of the decedent to the payment of their debts. Brogan v. Brogan, 63 Ark. 405, 39 S.W. 58 (1897) (decision under prior law).

Lost Will.

A probate court had no jurisdiction to establish a lost will. Waggener v. Lyles, 29 Ark. 47 (1874) (decision under prior law).

Jurisdiction was proper in probate court where the proceedings were to restore a lost will incident to the administration of an estate. Gilbert v. Gilbert, 47 Ark. App. 37, 883 S.W.2d 859 (1994).

Partnership Accounts.

A probate court had no jurisdiction to adjust the partnership accounts between deceased and surviving partners. However, where the accounts had been settled and a balance struck against a deceased partner, the probate court could render judgment for this balance against the estate. Culley & Son v. Edwards, 44 Ark. 423 (1884). See also Morris v. Stroude, 123 Ark. 313, 185 S.W. 451 (1916) (decision under prior law).

Paternity.

Where sole purpose of action is to establish paternity, the probate court is without jurisdiction to hear the matter. In re Estate of F.C., 321 Ark. 191, 900 S.W.2d 200 (1995).

Power to Give Accounting.

Where a probate judge dismissed a petition for an accounting filed by an executor and a third party complaint filed by the widow and the dismissals were without prejudice to have the matters heard in the chancery court, the dismissals were not clearly erroneous, since the chancery court had the power to give an accounting even though it could have been had in the probate court where the matter was pending. Stokes v. Stokes, 275 Ark. 110, 628 S.W.2d 6 (1982).

Proper Venue.

In action by devisee for possession of motel devised to her for life against executors of will, the probate court of the county was court of competent jurisdiction to hear and determine the question of possession where the property was located in the county and ancillary administration of deceased's estate was being conducted there under the supervision of the probate court. Sides v. Haynes, 181 F. Supp. 889 (W.D. Ark. 1960).

Property Rights.

The enactment of the Probate Code did not enlarge the jurisdiction of probate courts to hear contests over property rights between the personal representative and third persons. Hilburn v. First State Bank, 259 Ark. 569, 535 S.W.2d 810 (1976).

The probate courts have no jurisdiction to resolve disputes as to property rights between a personal representative and third persons claiming adversely to the estate; persons who are neither heirs, devisees, distributees, nor beneficiaries of the estate are third persons and “strangers” within the meaning of this rule. Williams ex rel. Tucker v. Titterington, 46 Ark. App. 322, 881 S.W.2d 226 (1994).

Real Property.

Under § 28-49-101 real property is an asset in the hands of the administrator only when the probate court finds that it should be sold, mortgaged, leased, or exchanged for purposes stated in § 28-51-103. Keenan v. Peevy, 267 Ark. 218, 590 S.W.2d 259 (1979).

Rents.

Probate court had no jurisdiction to adjudicate a claim by a widow against the administrator of her husband's estate for rents due her which were collected by the administrator. Mobley v. Andrews, 55 Ark. 222, 17 S.W. 805 (1891) (decision under prior law).

Sale of Realty.

Probate courts had jurisdiction to order the sale of real estate to pay the debts of an estate in accordance with the jurisdiction conferred by this section. Sullivan v. Times Publishing Co., 181 Ark. 27, 24 S.W.2d 865 (1930) (decision under prior law).

Title to Realty.

A probate court had no jurisdiction to try title to real property. Fancher v. Kenner, 110 Ark. 117, 161 S.W. 166 (1913); Fowler v. Frazier, 116 Ark. 350, 172 S.W. 875 (1915); Moss v. Moose, 184 Ark. 798, 44 S.W.2d 825 (1931) (decision under prior law).

Unborn Children.

Since nothing is said about unborn children in Ark. Const., Art. 7, § 34, concerning probate courts or in this section, which is the statutory jurisdictional provision, any attempt to extend the Probate Code to unborn children would be without specific authority and would be void. Accordingly, a probate court is correct in refusing to grant letters of administration to a deceased fetus. Carpenter v. Logan, 281 Ark. 184, 662 S.W.2d 808 (1984).

Vacating Judgment.

A probate court was without jurisdiction to vacate its judgment probating a will, such judgment being final. Dunn v. Bradley, 175 Ark. 182, 299 S.W. 370 (1927) (decision under prior law).

Cited: Ozment v. Mann, 235 Ark. 901, 363 S.W.2d 129 (1962); Coleman v. Coleman, 257 Ark. 404, 520 S.W.2d 239 (1975); McDermott v. McAdams, 273 Ark. 20, 616 S.W.2d 476 (1981); Hutton v. Savage, 298 Ark. 256, 769 S.W.2d 394 (1989); Hall v. Superior Fed. Bank, 303 Ark. 125, 794 S.W.2d 611 (1990); In re D.J.M., 39 Ark. App. 116, 839 S.W.2d 535 (1992); Schenebeck v. Schenebeck, 329 Ark. 198, 947 S.W.2d 367 (1997); Judkins v. Hoover, 351 Ark. 552, 95 S.W.3d 768 (2003).

28-1-105. [Repealed.]

Publisher's Notes. This section, concerning the jurisdiction of probate judges, was repealed by Acts 2003, No. 1185, § 269. The section was derived from Acts 1949, No. 140, § 4; A.S.A. 1947, § 62-2004.

28-1-106. Referees and probate clerks.

  1. Circuit courts shall have the authority to appoint referees in probate in the respective counties in the manner and with the powers and duties as provided by Supreme Court rule.
    1. In the absence of the circuit judge or a referee within a county, the probate clerk of the circuit court may appoint administrators, executors, guardians, and curators and shall approve the bond of the appointees.
    2. However, the appointment of administrators, executors, guardians, and curators and the approval of their bond shall be subject to review by the court.
    1. The probate clerk of the circuit court shall be the custodian of all probate records and documents and shall have the power either in person or by deputy to:
      1. Take acknowledgments;
      2. Administer oaths;
      3. Issue notices and process;
      4. Certify copies of instruments, documents, and records of the court; and
      5. Perform the usual functions of his or her office and other functions as may be authorized by law.
    2. All original papers, when filed, shall be retained in the custody of the clerk except when otherwise ordered by a court of competent jurisdiction.
  2. The probate clerk of the circuit court shall be the custodian of all adoption records and documents.

History. Acts 1949, No. 140, §§ 6, 8; 1953, No. 165, § 1; A.S.A. 1947, §§ 62-2006, 62-2008; Acts 1993, No. 758, § 1; 2003, No. 1185, § 270.

Cross References. Probate clerk to notify Revenue Division of the Department of Finance and Administration of appointment, § 26-59-120.

Research References

Ark. L. Rev.

Amendments of the Probate Code, 7 Ark. L. Rev. 377.

Case Notes

Special Action.

This section does not prohibit the judge in a special action from receiving documents in open court, without the intervention of the clerk of court and with the receipt of the documents constituting their “filing.” Orlando v. Wizel, 443 F. Supp. 744 (W.D. Ark. 1978).

28-1-107. [Repealed.]

Publisher's Notes. This section, concerning court reporters, was repealed by Acts 2003, No. 1185, § 271. The section was derived from Acts 1949, No. 140, § 14; A.S.A. 1947, § 62-2014.

28-1-108. Records.

The following records of the court shall be maintained:

  1. An index in which files pertaining to estates of deceased persons shall be indexed under the name of the decedent, and those pertaining to guardianships under the name of the ward. The file and docket number shall be shown after the name of each file;
  2. A docket in which shall be listed in chronological order under the name of the decedent or ward all documents filed or issued and all orders made pertaining to the estate, including:
    1. The dates thereof;
    2. The names and addresses of fiduciaries and of attorneys for parties in interest when and as known to the clerk;
    3. Reference to the volume and page of any record which shall have been made of the document or order; and
    4. Other data as the court may direct;
  3. A record of wills, properly indexed, in which shall be recorded all wills admitted to probate with the certificate of probate thereof;
  4. Other records as may be required by law or the court.

History. Acts 1949, No. 140, § 9; 1983, No. 250, § 1; A.S.A. 1947, § 62-2009.

28-1-109. Petition — Verification.

  1. Unless otherwise provided, every application to the court shall be by petition signed and verified by or on behalf of the petitioner.
  2. This requirement shall be mandatory but not jurisdictional, and noncompliance therewith shall not alone be grounds for appeal.

History. Acts 1949, No. 140, § 10; A.S.A. 1947, § 62-2010.

Case Notes

Application to Court.

An application to the court within the meaning of § 28-40-103 was made when proponents of a will filed a verified petition for probate within three days after death of testator, and a personal appearance before the probate court was not necessary. Minchew v. Tullis, 236 Ark. 818, 368 S.W.2d 282 (1963).

28-1-110. Filing objections to petition.

  1. On or before the day set for hearing, an interested person may file written objections to a petition previously filed.
  2. Upon special order or general rule of the court, objections to a petition must be filed in writing as a prerequisite to being heard by the court.

History. Acts 1949, No. 140, § 11; A.S.A. 1947, § 62-2011.

Case Notes

Response.

Where there is no order or rule, a court does not err in permitting appellees to dictate a response into the record, for this section requires objections to a petition to be filed in writing only when the court so requires by a special order or general rule. Coogler v. Dorn, 231 Ark. 188, 328 S.W.2d 506 (1959).

Rules of Procedure.

Where a petition for determination of heirship under § 28-53-101 was filed in July 1980, and the executor filed his response in September 1980, beyond the 20-day period provided for in ARCP 12, but before the hearing, it was proper for the probate judge to deny petitioner's motion to strike the response, since objections by the defendant are not governed by ARCP 12, in probate proceedings and may be made at any time, up to and including the day of the hearing, unless a special order or general rule of the court under this section requires a written objection as a prerequisite to the arguments being heard by the court. King v. King, 273 Ark. 55, 616 S.W.2d 483 (1981).

28-1-111. Guardians and attorneys ad litem.

  1. Circuit courts shall have the power and duty to appoint a guardian ad litem to a proceeding to represent an incompetent party who is not represented by a guardian or next friend and, for the protection of the interests of a nonresident party who is not represented before the court and has not been personally served with notice, to appoint an attorney ad litem to give notice to the nonresident of the pendency and nature of the proceeding as is provided by law with respect to proceedings in courts of equity.
  2. The appointment of a guardian ad litem or attorney ad litem may be made by the clerk of the court at any time after the initiation of a proceeding by the filing of a petition, subject to the approval of the court.

History. Acts 1949, No. 140, § 4; A.S.A. 1947, § 62-2004.

Case Notes

Accounting Against Guardian.

Where a person for whom a guardian was appointed as being insane was subsequently adjudged to be sane, a suit for an accounting against the guardian was not within the exclusive jurisdiction of the probate court, but could be maintained in the chancery court. Smith v. Walker, 187 Ark. 161, 58 S.W.2d 946 (1933) (decision under prior law).

Convicted Felon.

Probate court had no jurisdiction of a proceeding to determine the issue of a convicted felon's sanity where he was in custody of the law for execution. Ferguson v. Martineau, 115 Ark. 317, 171 S.W. 472 (1914) (decision under prior law).

Determination of Mental Status.

In suit to redeem property sold for delinquent taxes, a chancery court had authority to determine plaintiff's mental status, irrespective of any previous adjudication by the probate court, which would be prima facie evidence. Schuman v. Westbrook, 207 Ark. 495, 181 S.W.2d 470 (1944) (decision under prior law).

Unable to Challenge Appointment.

Because an attorney-ad-litem had performed the services requested by a circuit court and the circuit court had already rendered a ruling in the case, an attorney's argument on appeal that the circuit court lacked authority to appoint an attorney-ad-litem in a case involving a petition for ante-mortem probate was moot. Sanford v. Murdoch, 374 Ark. 12, 285 S.W.3d 620 (2008).

Cited: Ozment v. Mann, 235 Ark. 901, 363 S.W.2d 129 (1962); Coleman v. Coleman, 257 Ark. 404, 520 S.W.2d 239 (1975); McDermott v. McAdams, 273 Ark. 20, 616 S.W.2d 476 (1981).

28-1-112. Notice — Service — Proof — Costs.

  1. When Notice to Be Given. Notice to interested persons need be given only when and as specifically provided for in the Probate Code or as ordered by the court. When no notice is required by the Probate Code, the court, by rule or by order in a particular case, may require such notice as it deems desirable.
  2. Kinds of Notice Required. Unless waived and except as otherwise provided by law, and subject to rule of the court or order of the court in a particular case specifying which of the following types of service shall be employed, notices required by the Probate Code may be served either:
    1. By delivering a copy personally to a person, if a natural person, and, if a corporation or a partnership, by delivering a copy to an individual upon whom civil process may be legally served in behalf of the corporation or partnership at least ten (10) days prior to the date set for the hearing;
    2. By leaving a copy at the usual place of abode of the person being served with some person over fifteen (15) years of age who is a member of his or her family, the notice to be served by an officer authorized to serve process in civil actions at least ten (10) days prior to the date set for the hearing;
    3. By registered mail, requesting a return receipt signed by addressee only, addressed to the person to be served located in the United States at his or her address stated in the petition for the hearing, to be posted by depositing in any United States Post Office in this state at least fifteen (15) days prior to the date set for the hearing;
      1. By publishing one (1) time a week for two (2) consecutive weeks in a newspaper published and having a general circulation in the county, with the first day of publication to be at least fifteen (15) days prior to the date set for the hearing.
      2. In addition, when service by publication only is employed, all persons whose names and addresses appear in the petition shall be served by ordinary mail, bearing on the envelope the return address of the clerk, in the same time and manner as provided in subdivision (b)(3) of this section with respect to notice by registered mail, except that no registration shall be required;
    4. By any combination of two (2) or more of the methods set out in subdivisions (b)(1)-(4) of this section; or
    5. By any method of service allowed by the Arkansas Rules of Civil Procedure.
  3. By Whom Prepared, Signed, and Served.
    1. Except when by statute or by order of the court otherwise expressly provided, a notice in a probate proceeding shall be in writing or print and prepared by or by procurement of the party upon whom rests the burden of giving the notice and shall be signed by the clerk or the attorney for the party upon whom rests the burden of giving notice. If service is to be by mail, the person preparing the notice shall sign it or deliver it to the clerk properly prepared for the clerk's signature.
      1. In the case of notices served by registered or certified mail, the clerk or the attorney of record in a probate proceeding for the party upon whom rests the burden of giving notice pursuant to this section may deposit the notices in the United States mail, cause the receipts for the delivery of the certified or registered mail to be returned to the clerk or the attorney, and duly prove service by the execution and filing with the clerk of the statement prescribed in subsection (f) of this section.
      2. Personal service may be made in any part of this state and, except as provided by subdivision (b)(2) of this section, may be made by any person not an incompetent.
  4. Service Upon an Incompetent Person. Except when otherwise expressly provided by statute with reference to a particular proceeding, notice to an incompetent person shall be served as follows:
    1. Upon the guardian, if any, of the estate of the incompetent person if the proceedings affect his or her estate, and upon the guardian, if any, of the person of the incompetent person if the proceedings affect the control or custody of his or her person;
    2. If there is no guardian of the estate or of the person upon whom notice may appropriately be served, service shall be upon the incompetent person, except:
      1. If he or she is a minor under fourteen (14) years of age, service shall be upon the parent, or person in loco parentis, having custody or control of the minor;
      2. If he or she is mentally incompetent and is confined in a hospital or institution for the treatment or care of mentally incompetent persons, service shall be upon the superintendent or acting superintendent of the hospital or institution. It shall be the superintendent's duty to promptly deliver or communicate the notice to the incompetent person; or
      3. If he or she is a mentally incompetent person who is not confined in a hospital or institution for the treatment or care of mentally incompetent persons, but is in the care or under the control of a spouse of the incompetent person or of a person related to the incompetent person within the third degree of consanguinity, then service may be upon the spouse or near relative whose duty it shall be to deliver or communicate the notice to the incompetent person; and
    3. In proceedings in which the interests of the incompetent person are adverse to the interests of his or her guardian, notice shall be served upon the incompetent person as provided in cases in which there is no guardian.
  5. Service on Attorney. If there is an attorney of record for a party in a proceeding or matter pending in the court, all notices required to be served on the party in the proceeding or matter shall be served on the attorney, and this service shall be in lieu of service upon the party for whom the attorney appears.
  6. Proof of Service.
    1. Proof of service of notice, otherwise than by publication in a newspaper or posting, shall be made by filing with the clerk a copy of the notice which has endorsed thereon a statement naming the person or persons upon whom it was served, the time, place, and manner of service, and is signed by the person who served the notice. This certificate of notice shall be sworn to unless signed by an officer authorized by law to serve civil process, or signed by the clerk or by an attorney of this state.
    2. In the case of service by registered mail, the return receipt shall be attached to the proof of service if a receipt has been received. If no receipt has been received, the court, in its discretion, may order further service on the party.
  7. Proof of Publication. When notice by publication in a newspaper or by posting is required by the Probate Code or by the court, proof thereof shall be made as provided by law in civil proceedings.
  8. Costs of Notice. All expense incurred in giving notice under the provisions of the Probate Code shall be taxed as costs in the proceeding.

History. Acts 1949, No. 140, § 12; 1951, No. 255, § 2; A.S.A. 1947, § 62-2012; Acts 1995, No. 734, § 1; 2001, No. 240, § 1.

Publisher's Notes. The Probate Code, referred to in this section, is codified as set out in the note following § 28-1-101.

Research References

Ark. L. Rev.

Probate Code Amendments, 5 Ark. L. Rev. 377.

Notices under the Probate Code, 8 Ark. L. Rev. 324.

Case Notes

Not Entitled to Notice.

Although appellant argued that there was no evidence that anyone received notice of the hearing set on the final accounting, which appellant claimed violated this section, the argument was without merit, given the notices that the trial court sent out after excluding appellant from distribution of the estate, and appellant conceded to having received actual notice in any event and possibly not having been entitled to notice in the first place; because appellant had been excluded, she was not an interested person under § 28-1-102(11) and so there was no legal requirement that she be served notice, and she lacked standing to complain about the failure to send notice to others who had not appealed. Seymour v. Biehslich, 371 Ark. 359, 266 S.W.3d 722 (2007).

Substantial Compliance.

Substantial compliance with the requirements of law for the presentation of claims is sufficient. Merritt v. Rollins, 231 Ark. 384, 329 S.W.2d 544 (1959).

There was substantial compliance with this section where, though county clerk did not notify executor of claim against estate by registered mail as provided by § 28-50-104, her attorney received a copy of the claim within the statutory period for notice. Edwards v. Brimm, 236 Ark. 588, 367 S.W.2d 433 (1963).

On the question of whether service on a court-appointed attorney for an absent military mother was sufficient service of process in a case of continuing jurisdiction on the issues of custody and guardianship, it was undisputed that service was made on the mother's attorney of record, and thus, the service of notice was in compliance with subsection (e) of this section. Finney v. Cook, 351 Ark. 367, 94 S.W.3d 333 (2002).

Unable to Challenge Appointment.

Issue raised by an attorney regarding violation of his due-process rights allegedly resulting from a circuit court's appointment of an attorney-ad-litem without notice, without a hearing, and without adequate time to respond would have had no practical effect on the controversy, would have been purely advisory, and was moot because the attorney-ad-litem had performed the services requested by the circuit court and the circuit court had already rendered a ruling in the case. Sanford v. Murdoch, 374 Ark. 12, 285 S.W.3d 620 (2008).

Voluntary Submission to Jurisdiction.

A party contesting a will voluntarily submitted to the jurisdiction of the probate court by requesting in writing that notice by ordinary mail of any petition, motion, or other filing of any kind be sent to his attorney. Gibbins v. Hancock, 267 Ark. 298, 590 S.W.2d 280 (1979).

Cited: Burdette v. Dietz, 18 Ark. App. 107, 711 S.W.2d 178 (1986).

28-1-113. Waiver of notice.

  1. A person who submits to the jurisdiction of the court in any hearing shall be deemed to have waived notice.
  2. A waiver in writing, executed in person or by attorney, in behalf of a person who is interested in a hearing in a probate proceeding, shall be effective if made by:
    1. A legally competent person in his or her own behalf;
    2. The guardian of the estate of an incompetent person in behalf of his or her ward, unless the interests of the ward and the guardian in the hearing are adverse;
    3. An incompetent person in his or her own behalf if the interests of the guardian and the ward in the hearing are adverse, or if there is no guardian;
    4. Either parent in behalf of a minor child, if the child is under fourteen (14) years of age and in the actual custody of the parent, or the minor child in his or her own behalf if the minor child has attained fourteen (14) years of age;
    5. A guardian ad litem in behalf of an incompetent person;
    6. A trustee in behalf of a beneficiary of his or her trust; or
    7. A consul or other representative of a foreign government whose appearance has been entered as provided by law in behalf of a person residing in a foreign country.
  3. A waiver, executed by a competent person in his or her own behalf or by his or her attorney, by its terms, may include one (1) or more hearings in a particular probate proceeding.

History. Acts 1949, No. 140, § 13; 1951, No. 255, § 3; 1975, No. 620, § 8; A.S.A. 1947, § 62-2013.

Research References

Ark. L. Rev.

Probate Code Amendments, 5 Ark. L. Rev. 377.

Notices under the Probate Code, 8 Ark. L. Rev. 324.

Case Notes

Personal Waiver.

Personal waiver of successor guardian who was not a party to the action, in her own behalf, did not bar the guardian from challenging the order on behalf of ward where her personal waiver was executed prior to her appointment as successor guardian. Smart v. Biggs, 26 Ark. App. 141, 760 S.W.2d 882 (1988).

Circuit court did not clearly err when it found that appellant's waiver of notice as written applied to “all proceedings” and that appellant did not intend it to be limited to only proceedings that involved the appointment of his parents as guardians to his children, as opposed to other persons; although appellant could have limited under the statute his waiver to waive notice only of specific hearings, he failed to do so. Paschall v. Paschall, 2018 Ark. App. 514, 563 S.W.3d 592 (2018).

Voluntary Submission to Jurisdiction.

A party contesting a will voluntarily submitted to the jurisdiction of the probate court by requesting in writing that notice by ordinary mail of any petition, motion, or other filing of any kind be sent to his attorney. Gibbins v. Hancock, 267 Ark. 298, 590 S.W.2d 280 (1979).

28-1-114. [Repealed.]

Publisher's Notes. This section, concerning rules of procedure and forms for probate courts, was repealed by Acts 2003, No. 1185, § 272. The section was derived from Acts 1949, No. 140, §§ 4, 7; A.S.A. 1947, § 62-2007.

28-1-115. Vacation and modification of orders.

  1. For good cause and at any time within the period allowed for appeal after the final termination of the administration of the estate of a decedent or ward, the court may vacate or modify an order or grant a rehearing. However, no such power shall exist as to any order from which an appeal has been taken or to set aside the probate of a will after the time allowed for contest thereof.
  2. No vacation or modification under this section shall affect any act previously done or any right previously acquired in reliance on such an order or judgment.

History. Acts 1949, No. 140, § 15; A.S.A. 1947, § 62-2015.

Research References

Ark. L. Rev.

Mark James Chaney, Recent Developments: Arkansas Supreme Court Holds the Appointment of a Special Personal Representative to an Estate Is Voidable, but Not Void, upon the Discovery of a Disqualifying Characteristic, 66 Ark. L. Rev. 1145 (2013).

Case Notes

Purpose.

This section was designed to afford a probate court greater flexibility with regard to the finality of its orders in the process of administration of an estate. White v. Toney, 37 Ark. App. 36, 823 S.W.2d 921 (1992).

Probate court did not err in reopening a decedent's estate in order to reform the probate file and a deed to show that real property was conveyed to purchasers with a reservation of one-half the mineral rights on each tract of land because the president of the bank that administered the estate testified that one-half of the mineral rights were not to be sold to purchasers, and his testimony was supported by the evidence; this section was inapplicable and did not limit § 28-53-119 because this section did not speak to reopening the estate, which was authorized by § 28-53-119. Moore v. First Presbyterian Church of Searcy, Ark., Inc., 2010 Ark. App. 269 (2010).

Dismissal with Prejudice.

The probate court's dismissal of will contest was necessarily with prejudice; any reconsideration of the dismissal must therefore relate to the dismissal itself and not to the merits of the will contest. Brantley v. Davis, 305 Ark. 68, 805 S.W.2d 75 (1991).

Good Cause.

Good cause to vacate previous order of court to sell property to pay claim exists where claim is barred by lapse of time under § 28-50-101. Brooks v. Baker, 242 Ark. 128, 412 S.W.2d 271 (1967).

Where a contest of will had already been filed at time will was admitted to probate, there was no time period in which contest had to be filed, and court could vacate or modify its order admitting will to probate, for good cause, at any time within period allowed for appeal after final termination of administration of estate. Even if court had felt admitting will to probate was res judicata on validity of will, it could have vacated its order because probate case was still open. Carpenter v. Horace Mann Life Ins. Co., 21 Ark. App. 112, 730 S.W.2d 502 (1987).

The record was void of any evidence for appellate review of whether good cause existed to vacate dismissal of will contest pursuant to subsection (a) where appellant offered no explanation of why “newly discovered” evidence was not offered prior to dismissal. Brantley v. Davis, 305 Ark. 68, 805 S.W.2d 75 (1991).

Probate judge did not err in failing to find good cause to vacate order, which had found woman to be natural daughter of decedent, on basis of newly discovered evidence that woman was not natural daughter of decedent where there was no satisfactory explanation offered to show why this evidence could not have been obtained prior to entry of the order. Cobb v. Estate of Keown, 53 Ark. App. 171, 920 S.W.2d 501 (1996).

Jurisdiction.

Probate court had jurisdiction to set aside its previous order determining heirship, because there was an extended period during which courts had jurisdiction to modify or vacate orders in probate proceedings, there had not been a final termination of the proceedings, and it was not entirely clear that the order determining heirship would have ended the proceedings. McVesting, LLC v. Heirs of Macie McGoon, 2012 Ark. App. 541 (2012).

Circuit court had the authority to set aside the order granting a petition for approval to make final distribution and determine heirship because the vacated order did not terminate the estate, and thereby, did not fulfill the requirements of this statute. Grant v. Williams, 2013 Ark. App. 663, 430 S.W.3d 786 (2013).

Right of Appeal.

The fact that appellant did not appeal from an order under the commissioner's report as to the value of homestead under the provisions of § 28-39-203, prior to the probate court's final order, even though they might have done so, did not constitute a bar to a later appeal. Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975).

Time.

Notwithstanding the provisions of ARCP 60, subsection (a) allows a probate court to vacate or modify its orders at any time before the time for appeal has elapsed after the final termination of the estate. White v. Toney, 37 Ark. App. 36, 823 S.W.2d 921 (1992).

A probate order may be vacated or modified at any time before a final order is entered, notwithstanding the dictates of Ark. R. Civ. P. Rule 60(b). Snowden v. Riggins, 70 Ark. App. 1, 13 S.W.3d 598 (2000).

In accordance with Ark. R. Civ. P. 81, it is precisely because the probate code and the Arkansas Rules of Civil Procedure set forth different time limits on the court's authority to modify or vacate prior orders that this section applies in probate proceedings; thus, an appeal under § 28-1-116 was timely since Ark. R. Civ. P. 52 was not implicated in an appeal from a denial of reconsideration arising from a denial of intervention in a probate case. Helena Reg'l Med. Ctr. v. Wilson, 362 Ark. 117, 207 S.W.3d 541 (2005).

Unqualified Personal Representative's Prior Acts.

Appointment of an unpardoned felon as a personal representative was voidable, rather than void ab initio, because (1) subsection (b) of this section states that no vacation of a probate court order affects a prior act, (2) § 28-48-105(b) states that removing a personal representative does not invalidate prior official acts, and (3) § 28-48-102(d)(2) also provides that a personal representative's acts before removal are valid. In re Estate of L.C. Taylor v. MCSA, LLC, 2013 Ark. 429, 430 S.W.3d 120 (2013).

Cited: Alexander v. First Nat'l Bank, 278 Ark. 406, 646 S.W.2d 684 (1983).

28-1-116. Appeals.

  1. Appeal Permitted. Except as provided in subsection (b) of this section, a person aggrieved by an order of the circuit court in probate proceedings under the provisions of the Probate Code may obtain a review of the order by the Supreme Court or the Court of Appeals.
  2. Orders Which Are Not Appealable. There shall be no appeal from an order:
    1. Removing a fiduciary for failure to give a new bond or to render an account as required by the court; or
    2. Appointing a special administrator.
  3. Stay of Appeal.
    1. When an appeal is taken with respect to any appealable order in the administration of a decedent's estate made prior to the order of final distribution, other than an order admitting or denying the probate of a will or appointing or refusing to appoint a personal representative, the circuit court or appellate court, in its discretion, may order that the appeal be:
      1. Stayed until the order of final distribution is made; and
      2. Heard only as a part of any appeal which may be taken from the order of final distribution.
    2. This subsection shall not apply to guardianships.
  4. When Appeal from Order of Final Distribution Includes Appeal from Prior Orders. When an appeal is taken from the order of final distribution in the administration of a decedent's estate, all prior appealable orders and judgments to which the appellant has filed objections in writing within sixty (60) days after the order of judgment was rendered and from which an appeal has not been taken, except orders admitting or denying the probate of a will or appointing a personal representative, shall be reviewed at the election of the appellant. The appellant shall indicate the election by clearly stating in the appeal the orders which he or she desires to have reviewed.
  5. Stay.
    1. An appeal shall stay other proceedings in the circuit court except when and to the extent that the court finds that no interested person will be prejudiced and by order permits other proceedings to be had.
    2. An order granting an allowance to the widow of minor children of a decedent pending settlement of the estate or setting apart exempt personal property to them shall not be stayed by an appeal.
  6. When Fiduciary Not Required to Give Supersedeas Bond. No supersedeas bond shall be required of a fiduciary when, in any probate matter, he or she appeals on behalf of his or her ward or the estate.
  7. Applicability of General Appellate Rules.
    1. Except as otherwise provided in the Probate Code, the provisions as to time, manner, notice, appeal bonds, stays, scope of review, duties of the clerk, and all other matters relating to appellate review shall be determined by the law and rules applicable to appeals in equity cases.
    2. The transcript on appeal shall be compiled in the same manner and consist of the same material as prescribed by law for appeals in equity cases.

History. Acts 1949, No. 140, § 16; A.S.A. 1947, § 62-2016; Acts 2003, No. 1185, § 273.

A.C.R.C. Notes. Acts 2003, No. 1885, § 273, purported to amend this section in its entirety, but did not set out subsections (f) and (g) as expressly repealed. The Arkansas Code Revision Commission does not construe the omission of subsections (f) and (g) by Acts 2003, No 1885, § 273, as an implied repeal of those subsections. Accordingly, subsections (f) and (g) have been included in this section as set out above.

Publisher's Notes. The Probate Code, referred to in this section, is codified as set out in the note following § 28-1-101.

Research References

Ark. L. Rev.

Minimum Standards of Judicial Administration — Arkansas, 5 Ark. L. Rev. 1, 22.

Case Notes

Applicability.

This section provides for appeals from probate causes involving wills, estates, and fiduciary relationships; it was enacted in 1949 and was in effect at the time ARAP 2 was adopted and, therefore, determines whether there is a right of appeal in a case involving orders of the probate court. Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994).

Law and rules applicable to appeals from equity courts apply equally to appeals from probate court, except as otherwise provided in the probate code. In re Vesa, 319 Ark. 574, 892 S.W.2d 491 (1995).

Right to review by the Supreme Court lies from all probate court orders other than an order removing a fiduciary for failure to give a new bond or render an accounting required by the court, or an order appointing a special administrator. In re Vesa, 319 Ark. 574, 892 S.W.2d 491 (1995).

Because a right to review lies from all probate orders other than an order removing a fiduciary for failure to give bond or to render a required accounting or an order appointing a special administrator under subsections (a) and (b) of this section, claimant's appeal from the order denying the motion to enter an order was properly before the court. Smith v. Estate of Howell, 372 Ark. 186, 272 S.W.3d 106 (2008).

Decedent’s son’s appeal was dismissed because prior to a hearing on the admission of the will to probate, he executed a waiver and entry of appearance and a disclaimer of his interest in the decedent’s estate, did not file a notice of appeal of an order staying the matter until a final distribution was made, and despite the denial of his motion to supplement the record, he included in his addendum materials found only in the supplemental volume and did not include certain necessary documents. Stratton v. Stratton, 2014 Ark. App. 292 (2014).

Adoption Proceedings.

In adoption proceedings, appellate court reviews the record de novo, but will not reverse the probate judge's decision unless it is clearly erroneous or against a preponderance of the evidence, after giving due regard to his opportunity to determine the credibility of the witnesses. Chrisos v. Egleston, 7 Ark. App. 82, 644 S.W.2d 326 (1983).

Aggrieved Person.

Where the plaintiffs filed an action against the administrator prior to his resignation as administrator, plaintiffs were interested parties within the meaning of subdivision (11) of § 28-1-102 and aggrieved parties within the meaning of this section for purposes of appealing from probate orders that affected those proceedings, but as such a resignation was ordinarily a matter of discretion for the probate judge and, as such resignation had no effect on venue and § 28-48-107 gave plaintiffs a remedy for the appointment of another administrator, there was no abuse of discretion in allowing the resignation to stand. Barkley v. Cullum, 252 Ark. 474, 479 S.W.2d 535 (1972).

Authority.

Circuit court did not err in appointing a sister as guardian over her sibling, an incapacitated adult, because the circuit court acted with its authority when it continued to enter orders while a brother's appeal was pending; the circuit court faced changed circumstances that called for immediate action because it was grappling with a situation in which the terms of its orders had not been fulfilled, and subdivision (e)(1) of this section did not preclude the circuit court from exercising that kind of judicial authority. Kuelbs v. Hill, 2010 Ark. App. 793, 379 S.W.3d 716 (2010), review denied, — Ark. —, — S.W.3d —, 2011 Ark. LEXIS 284 (Ark. June 2, 2011).

Because a guardianship case, like a child-custody or child-support case, involves ongoing events in the life of a person who is dependent on the court for protection, the court must continually exercise its powers, where changed conditions warrant, to safeguard those persons whose needs cannot wait a year or more while an appeal makes its way through the courts. Kuelbs v. Hill, 2010 Ark. App. 793, 379 S.W.3d 716 (2010), review denied, — Ark. —, — S.W.3d —, 2011 Ark. LEXIS 284 (Ark. June 2, 2011).

Evidence.

Since an appellate review is de novo under the provisions of subsection (g) of this section, improperly excluded evidence will be considered. Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975).

Exhumation.

Although not specifically enumerated in § 28-1-104, an appellate court had jurisdiction over a request to exhume a body because the decedent's personal representative petitioned the probate division of the circuit court, during administration of the decedent's estate, to enforce a provision in the decedent's will by ordering exhumation and reburial and probate orders were appealable pursuant to subsection (a) of this section and Ark. R. App. P.-Civ. 2(a)(12). Long v. Alford, 2010 Ark. App. 233, 374 S.W.3d 219 (2010).

Incompetency Determination.

Once a person's incompetency is established, that incompetency is presumed to continue until a change has been established by proof. In reviewing the probate court's finding on whether a change has been established, an appellate court affirms unless the court's decision is clearly erroneous, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. In re Estate of Lemley, 9 Ark. App. 140, 653 S.W.2d 141 (1983).

Jurisdiction.

Probate court had jurisdiction to set aside its previous order determining heirship, because there was an extended period during which courts had jurisdiction to modify or vacate orders in probate proceedings, there had not been a final termination of the proceedings, and it was not entirely clear that the order determining heirship would have ended the proceedings. McVesting, LLC v. Heirs of Macie McGoon, 2012 Ark. App. 541 (2012).

In an appeal from an order appointing a permanent guardian of the person and estate of appellant's husband, the circuit court was without jurisdiction to appoint special administrators to act on appellant's behalf following her death after the record was lodged on appeal. Because the appeal did not have an appellant to prosecute the appeal, it was dismissed. Guenther v. Guenther, 2018 Ark. App. 538, 566 S.W.3d 132 (2018) (petition for special administrators was filed before the January 1, 2018 effective date of Ark. R. App. P. Civil 12).

Order of Court Binding.

An order of the probate court upon subject matter and between parties over which it has jurisdiction remains binding upon all parties interested therein until it is set aside under proper procedure. Sides v. Haynes, 181 F. Supp. 889 (W.D. Ark. 1960).

Order of Final Distribution.

Appeal from a motion to increase distribution was not an appeal from the final order of distribution, and had nothing to do with the manner of administration; rather, it was an attempt to appeal for the second time an earlier order denying probate of the codicil and denying that the church disclaimed its interest, and was barred by subsection (d) of this section and the doctrine of res judicata. Simmons v. Estate of Wilkinson, 318 Ark. 371, 885 S.W.2d 673 (1994).

Removal of Executor.

Under this section, any order of a probate court is generally appealable, but under § 28-48-103(f), there can be no appeal from an order appointing or refusing to appoint a special administrator; however, the denial or granting of a petition to remove an executor or administrator, other than a special administrator, is an appealable order. Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994).

Ripeness.

Because a circuit court had not yet ruled on the merits of a daughter's petition for guardianship over the person and estate of her mother, and because additional evidence was expected when a hearing resumed, evidentiary challenges were not yet ripe for review on the mother's appeal of the circuit court's order requiring an independent medical evaluation. Howard v. Jenkins, 2019 Ark. App. 15, 568 S.W.3d 771 (2019).

Scope of Review.

When an appeal is taken from the order of final distribution, all prior appealable judgments and orders to which the appellant has filed an objection within sixty days after the order of judgment was rendered, with certain exceptions, may be reviewed on appeal. Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975).

Special Administrator.

Where heirs at law attacked probate of will and filed petitions asking for removal of executor on the ground that he failed to include certain assets in the inventory and, while matters were pending, the probate court granted a petition for appointment of a special administrator for purpose of filing proceedings against executors and others, the appointment of a special administrator was proper since probate court had original and exclusive jurisdiction to appoint a special administrator. Breshears v. Williams, 223 Ark. 368, 265 S.W.2d 956 (1954).

No appeal is allowed from an order refusing to appoint a special administrator. In re Estate of McLaughlin, 306 Ark. 515, 815 S.W.2d 937 (1991).

There can be no appeal from an order refusing to appoint a special administrator. Harwood v. Monroe, 65 Ark. App. 57, 984 S.W.2d 93 (1999).

Stay.

Pursuant to subsection (e), court's failure to make a finding of lack of prejudice and issue an order permitting additional proceedings prohibited the court from proceeding further where action was stayed by appeal. National Union Fire Ins. Co. v. Standridge, 299 Ark. 91, 771 S.W.2d 22 (1989).

By declining to determine the appellants' heirship claims, the probate court did not impliedly stay any appeal of its order until final distribution; the court's order gave no indication of any intent to curtail the appellants' right to appeal, but only to clarify and restrict the scope of the order and, additionally, the order appealed from was largely concerned with the appointment of a personal representative and thus was not encompassed by subsection (c) of this section. Snowden v. Riggins, 70 Ark. App. 1, 13 S.W.3d 598 (2000).

In response to a jurisdictional argument under subdivision (e)(1) of this section, an appellate court considered a recusal argument in a probate matter out of an abundance of caution, even though there were no specific findings of no prejudice or a specific order permitting further proceedings in the order of a companion case. Ashley v. Ashley, 2012 Ark. App. 230 (2012).

Time for Appeal.

Appeal could not be taken four months after collateral heirs were notified of hearing on final accounting and final accounting was approved and published. Wilson v. Davis, 239 Ark. 305, 389 S.W.2d 442 (1965).

In accordance with Ark. R. Civ. P. 81, it is precisely because the probate code and the Arkansas Rules of Civil Procedure set forth different time limits on the court's authority to modify or vacate prior orders that § 28-1-115 applies in probate proceedings; thus, an appeal under this section was timely since Ark. R. Civ. P. 52 was not implicated in an appeal from a denial of reconsideration arising from a denial of intervention in a probate case. Helena Reg'l Med. Ctr. v. Wilson, 362 Ark. 117, 207 S.W.3d 541 (2005).

Appeals from a circuit court's order construing a decedent's will in the widow's favor were timely, under subsections (a) and (g) of this section, because (1) any attempt to appeal from the partial summary judgment would have been a nullity because the partial summary judgment lacked finality because it was obviously partial and other issues remained, and the partial summary judgment did not contain an Ark. R. Civ. P. 54(b) certification allowing for an immediate appeal; (2) the partial summary judgment became final on July 31, 2006, when judgment was entered disposing of the remaining claims; (3) motions for new trial were filed and, under Ark. R. App. P. Civ. 4(b), such motions extended the time for all parties to file their notice of appeal; and (4) the older children filed their notice of appeal on September 18, 2006. Taylor v. Woods, 102 Ark. App. 92, 282 S.W.3d 285 (2008), rehearing denied, — Ark. App. —, — S.W.3d —, 2008 Ark. App. LEXIS 625 (Aug. 20, 2008).

Because the notice of appeal by the trustee of the residuary beneficiary was timely filed within 30 days from entry of the circuit court's interlocutory order on Oct. 19, 2017, the appellate court had jurisdiction over the appeal and could review the circuit court's failure to enforce a family-settlement agreement. However, the appellate court did not have jurisdiction to hear a cross-appeal advancing a challenge to the family-settlement agreement because the contingent beneficiary did not file a notice of appeal within 30 days from the entry of the court's June 2, 2017, interlocutory order approving the family-settlement agreement. Trask v. Trask, 2018 Ark. App. 400, 559 S.W.3d 277 (2018).

Untimely Appeal.

Where an order of the probate court on May 18, 1978, assigned dower and homestead rights to the widow and directed that certain other payments be made to her, the order was final as to dower and homestead rights and was an appealable order, so that, whether the 30-day (§ 16-67-310 [superseded]) or 60-day (§ 28-1-116) time limit for appeals was applicable, the executor's appeal was not timely when he appealed from an order of May 15, 1979, wherein the court directed compliance with its former order of May 18, 1978. Owen v. Owen, 267 Ark. 532, 592 S.W.2d 120 (1980).

Appealability of court order held not preserved. Morris v. Garmon, 291 Ark. 67, 722 S.W.2d 571 (1987), cert. denied, 484 U.S. 816, 108 S. Ct. 69 (1987).

Court lacked jurisdiction to address the claimant's argument that the circuit court erred in approving the settlement, where the claimant neither filed an objection pursuant to subsection (d) of this section to preserve the issue as part of the appeal from the order of final distribution, nor did he file a timely notice of appeal to appeal the order separately. Smith v. Estate of Howell, 372 Ark. 186, 272 S.W.3d 106 (2008).

Former attorney's appeal from a probate court's order striking the former attorney's response to a motion for modification and declaratory judgment and discovery requests was dismissed with prejudice because (1) the order striking the response was the only issue raised on appeal, (2) the order striking the response was an appealable order, under Ark. R. App. P. Civ. 2(a)(4), (3) the order striking the response was not reviewable under subsection (d) of this section as being an appealable order entered prior to a final order of distribution, as no final order of distribution meeting the requirements of § 28-53-104 was entered, (4) even if the contested order were viewed as an order of a probate court, rather than an order striking a response, the appeal was still untimely, as the order was appealable at the interlocutory stage, under Ark. R. App. P. Civ. 2(a)(12) and this section, and (5) the appeal was not timely filed under Ark. R. App. P. Civ. 4(a). Brown v. Wilson (In re Estate of Stinnett), 2011 Ark. 278, 383 S.W.3d 357 (2011).

Written Objection.

Contestant's failure to file written objections to orders concerning unpaid rent and executor and attorney fees precluded appellate review. Swaffar v. Swaffar, 327 Ark. 235, 938 S.W.2d 552 (1997), cert. denied, 522 U.S. 820, 118 S. Ct. 73 (1997).

Cited: Black v. Morton, 233 Ark. 197, 343 S.W.2d 437 (1961); Brooks v. Baker, 242 Ark. 128, 412 S.W.2d 271 (1967); Knight v. Deavers, 259 Ark. 45, 531 S.W.2d 252, 78 A.L.R.3d 761 (1976); Hanna v. Hanna, 273 Ark. 399, 619 S.W.2d 655 (1981); Monroe v. Dallas, 6 Ark. App. 10, 636 S.W.2d 881 (1982); Widmer v. Widmer, 293 Ark. 296, 737 S.W.2d 457 (1987); Arkansas Dep't of Human Servs. v. Lopez, 302 Ark. 154, 787 S.W.2d 686 (1990); White v. Welsh, 323 Ark. 479, 915 S.W.2d 274 (1996); Dunklin v. Ramsay, 328 Ark. 263, 944 S.W.2d 76 (1997); Guess v. Going, 62 Ark. App. 19, 966 S.W.2d 930 (1998); West v. Williams, 355 Ark. 148, 133 S.W.3d 388 (2003); Ferguson v. Ferguson, 2009 Ark. App. 549, 334 S.W.3d 425 (2009); Grant v. Williams, 2013 Ark. App. 663, 430 S.W.3d 786 (2013).

28-1-117. Use of certified mail permitted.

Anything permitted or required by the Probate Code to be served or transmitted by registered mail may be served or transmitted either by registered mail or by certified mail, and return receipts for the delivery of certified mail shall be received in the courts as prima facie evidence of the delivery to the same extent as return receipts for the delivery of registered mail.

History. Acts 1957, No. 29, § 1; A.S.A. 1947, § 62-2017.

Publisher's Notes. The Probate Code, referred to in this section, is codified as set out in the note following § 28-1-101.

28-1-118. Deceased viable fetus.

  1. For purposes of the Probate Code, a “deceased viable fetus” is considered a person and decedent so that the probate division of circuit court may have jurisdiction for the administration, settlement, and distribution of the deceased fetus's estate.
  2. No person shall be liable under subsection (a) of this section when the death of the fetus results from a legal abortion or from the fault of the pregnant woman carrying the fetus.

History. Acts 2001, No. 1775, § 1.

Publisher's Notes. The Probate Code, referred to in this section, is codified as set out in the note following § 28-1-101.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Probate Law, 24 U. Ark. Little Rock L. Rev. 631.

Case Notes

Person.

District court concluded that the Arkansas Supreme Court would extend its decision in Aka, which held that wrongful death suits could be brought on behalf of unborn, viable fetuses, to allow a negligence suit to be filed on a child's behalf, seeking to recover for alleged negligently-inflicted injuries that the child sustained in utero, before she was born. The district court noted that the state supreme court had found persuasive the state legislature's decision to expand the definition of “person” in the homicide and probate laws, § 5-1-102(13)(B)(i)(b) and subsection (a) of this section, to include viable fetuses, thereby giving statutory protection to unborn children, and that it would be absurd to think that less protection would be provided under Arkansas law to children who suffered in utero injury, but nevertheless managed to be born. Crussell v. Electrolux Home Prods., 499 F. Supp. 2d 1137 (W.D Ark. 2007).

28-1-119. Access to decedent's autopsy records.

  1. As used in this section, “healthcare provider” means a person, corporation, facility, or institution licensed, certified, or otherwise authorized by the law of this state to administer health care in the ordinary course of business or practice of a profession.
  2. A healthcare provider who, in good faith, releases copies of a decedent's autopsy records upon the authorization of any of the individuals listed under § 28-1-102(19)(B) shall not be held liable under any criminal law or held civilly liable to the deceased patient's estate or to any other person.

History. Acts 2011, No. 722, § 2.

Chapter 2 Disclaimer Of Property

Publisher's Notes. For Comments regarding the Uniform Disclaimer of Property Interests Act, see Commentaries Volume B.

Cross References. Disclaimer by custodian of minor, § 9-26-218.

Effective Dates. Acts 2003, No. 610, § 19: Sept. 1, 2003.

Research References

ALR.

Relinquishment of interest by life beneficiary in possession as accelerating remainder of which there is substitutional gift in case primary remainderman does not survive life beneficiary. 7 A.L.R.4th 1084.

Creditor's right to prevent debtor's renunciation of benefit under will or debtor's election to take under will. 39 A.L.R.4th 633.

Am. Jur. 23 Am. Jur. 2d, Desc. & D., § 157 et seq.

Ark. L. Notes.

Looney, Use of the Disclaimer as an Estate Planning Device under Arkansas Law, 1985 Ark. L. Notes 67.

C.J.S. 26B C.J.S., Desc. & D., § 69.

U. Ark. Little Rock L.J.

Legislative Survey, Decedents' Estates, 4 U. Ark. Little Rock L.J. 591.

Subchapter 1 — Uniform Disclaimer of Property Interests Act [Repealed.]

A.C.R.C. Notes. As originally codified, chapter 2 was not divided into subchapters. However, subsequent to the enactment of Acts 2003, No. 610, the Arkansas Code Revision Commission determined that, for codification purposes, it would be necessary to reorganize chapter 2. Accordingly, Acts 2003, No. 610, §§ 1-19, were codified as new subchapter 2. Newly designated subchapter 1 was listed as a repealed subchapter.

28-2-101 — 28-2-109. [Repealed.]

Publisher's Notes. Former chapter 2, designated herein as subchapter 1, the former Uniform Disclaimer of Property Interests Act, was repealed by Acts 2003, No. 610, § 20. The chapter was derived from the following sources:

28-2-101. Acts 1981, No. 348, §§ 1, 6, 9; A.S.A. 1947, §§ 62-3201, 62-3206.

28-2-102. Acts 1981, No. 348, § 5; A.S.A. 1947, § 62-3205.

28-2-103. Acts 1981, No. 348, § 7; A.S.A. 1947, § 62-3207.

28-2-104. Acts 1981, No. 348, § 2; A.S.A. 1947, § 62-3202.

28-2-105. Acts 1981, No. 348, § 8; A.S.A. 1947, § 62-3208.

28-2-106. Acts 1981, No. 348, § 3; A.S.A. 1947, § 62-3203.

28-2-107. Acts 1981, No. 348, § 2; A.S.A. 1947, § 62-3202.

28-2-108. Acts 1981, No. 348, §§ 2, 4; A.S.A. 1947, §§ 62-3202, 62-3204.

28-2-109. Acts 1981, No. 348, § 2; A.S.A. 1947, § 62-3202.

Subchapter 2 — Uniform Disclaimer of Property Interests Act (1999)

28-2-201. Short title.

This subchapter may be cited as the “Uniform Disclaimer of Property Interests Act (1999).”

History. Acts 2003, No. 610, § 1; 2009, No. 346, § 1.

Amendments. The 2009 amendment substituted “Uniform Disclaimer of Property Interests Act (1999)” for “Arkansas Disclaimer of Property Interests Act.”

28-2-202. Definitions.

In this subchapter:

  1. “Disclaimant” means the person to whom a disclaimed interest or power would have passed had the disclaimer not been made.
  2. “Disclaimed interest” means the interest that would have passed to the disclaimant had the disclaimer not been made.
  3. “Disclaimer” means the refusal to accept an interest in or power over property.
  4. “Fiduciary” means a personal representative, trustee, agent acting under a power of attorney, or other person authorized to act as a fiduciary with respect to the property of another person.
  5. “Jointly held property” means property held in the name of two or more persons under an arrangement in which all holders have concurrent interests and under which the last surviving holder is entitled to the whole of the property.
  6. “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; public corporation, or any other legal or commercial entity.
  7. “State” means a State of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band, or Alaskan native village, recognized by federal law or formally acknowledged by a State.
  8. “Trust” means:
    1. an express trust, charitable or noncharitable, with additions thereto, whenever and however created; and
    2. a trust created pursuant to a statute, judgment, or decree which requires the trust to be administered in the manner of an express trust.

History. Acts 2003, No. 610, § 2.

28-2-203. Scope.

This subchapter applies to disclaimers of any interest in or power over property, whenever created.

History. Acts 2003, No. 610, § 3.

28-2-204. Subchapter supplemented by other law.

  1. Unless displaced by a provision of this subchapter, the principles of law and equity supplement this subchapter.
  2. This subchapter does not limit any right of a person to waive, release, disclaim, or renounce an interest in or power over property under a law other than this subchapter.

History. Acts 2003, No. 610, § 4.

28-2-205. Power to disclaim — General requirements, when irrevocable.

  1. A person may disclaim, in whole or part, any interest in or power over property, including a power of appointment. A person may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim.
  2. Except to the extent a fiduciary's right to disclaim is expressly restricted or limited by another statute of this State or by the instrument creating the fiduciary relationship, a fiduciary may disclaim, in whole or part, any interest in or power over property, including a power of appointment, whether acting in a personal or representative capacity. A fiduciary may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim, or an instrument other than the instrument that created the fiduciary relationship imposed a restriction or limitation on the right to disclaim.
  3. To be effective, a disclaimer must be in a writing or other record, declare the disclaimer, describe the interest or power disclaimed, be signed by the person making the disclaimer, and be delivered or filed in the manner provided in § 28-2-212. In this subsection:
    1. “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
    2. “Signed” means, with present intent to authenticate or adopt a record, to:
      1. execute or adopt a tangible symbol; or
      2. attach to or logically associate with the record an electronic sound, symbol, or process.
  4. A partial disclaimer may be expressed as a fraction, percentage, monetary amount, term of years, limitation of a power, or any other interest or estate in the property.
  5. A disclaimer becomes irrevocable when it is delivered or filed pursuant to § 28-2-212 or when it becomes effective as provided in §§ 28-2-206 — 28-2-211, whichever occurs later.
  6. A disclaimer made under this subchapter is not a transfer, assignment, or release.

History. Acts 2003, No. 610, § 5.

28-2-206. Disclaimer of interest in property.

  1. In this section:
    1. “Future interest” means an interest that takes effect in possession or enjoyment, if at all, later than the time of its creation.
    2. “Time of distribution” means the time when a disclaimed interest would have taken effect in possession or enjoyment.
  2. Except for a disclaimer governed by § 28-2-207 or § 28-2-208, the following rules apply to a disclaimer of an interest in property:
    1. The disclaimer takes effect as of the time the instrument creating the interest becomes irrevocable, or, if the interest arose under the law of intestate succession, as of the time of the intestate's death.
    2. The disclaimed interest passes according to any provision in the instrument creating the interest providing for the disposition of the interest, should it be disclaimed, or of disclaimed interests in general.
    3. If the instrument does not contain a provision described in subdivision (b)(2), the following rules apply:
      1. If the disclaimant is not an individual, the disclaimed interest passes as if the disclaimant did not exist.
      2. If the disclaimant is an individual, except as otherwise provided in subdivisions (b)(3)(C) and (D), the disclaimed interest passes as if the disclaimant had died immediately before the time of distribution.
      3. If by law or under the instrument, the descendants of the disclaimant would share in the disclaimed interest by any method of representation had the disclaimant died before the time of distribution, the disclaimed interest passes only to the descendants of the disclaimant who survive the time of distribution.
      4. If the disclaimed interest would pass to the disclaimant's estate had the disclaimant died before the time of distribution, the disclaimed interest instead passes by representation to the descendants of the disclaimant who survive the time of distribution. If no descendant of the disclaimant survives the time of distribution, the disclaimed interest passes to those persons, including the state but excluding the disclaimant, and in such shares as would succeed to the transferor's intestate estate under the intestate succession law of the transferor's domicile had the transferor died at the time of distribution. However, if the transferor's surviving spouse is living but is remarried at the time of distribution, the transferor is deemed to have died unmarried at the time of distribution.
    4. Upon the disclaimer of a preceding interest, a future interest held by a person other than the disclaimant takes effect as if the disclaimant had died or ceased to exist immediately before the time of distribution, but a future interest held by the disclaimant is not accelerated in possession or enjoyment.

History. Acts 2003, No. 610, § 6; 2005, No. 1962, § 116; 2009, No. 346, § 2.

Amendments. The 2009 amendment reversed the sequence of (a)(1) and (a)(2); and rewrote (b)(3).

Research References

Ark. L. Rev.

Carroll, Uniform Laws in Arkansas, 52 Ark. L. Rev. 313.

Case Notes

Disclaimer by Heirs.

Where the four children of the intestate who were alive at his death and the five children of the decedent's son who had predeceased him had executed disclaimers of interest in the estate with the purpose of having certain property pass to his widow as the surviving spouse, but the other 12 grandchildren and 10 great grandchildren did not execute disclaimers, the property in question did not pass to the widow because under § 28-9-214 the estate would have passed to the widow only if there were no surviving descendants. The disclaimers in this case resulted in the property in issue passing to the 12 grandchildren and 10 great grandchildren who did not execute disclaimers and not to the widow as the surviving spouse. Hunt v. United States, 566 F. Supp. 356 (E.D. Ark. 1983).

Federal Tax Liens.

The inheritance property taxpayer held under state law rendered the inheritance “property” or “rights to property” belonging to him within the meaning of 26 U.S.C. 6321 and subject to federal tax liens, despite the taxpayer's exercise of his state-law right to disclaim the interest retroactively. Drye v. United States, 528 U.S. 49, 120 S. Ct. 474, 145 L. Ed. 2d 466 (1999).

28-2-207. Disclaimer of rights of survivorship in jointly held property.

  1. Upon the death of a holder of jointly held property, a surviving holder may disclaim, in whole or part, the greater of:
    1. a fractional share of the property determined by dividing the number one by the number of joint holders alive immediately before the death of the holder to whose death the disclaimer relates; or
    2. all of the property except that part of the value of the entire interest attributable to the contribution furnished by the disclaimant.
  2. A disclaimer under subsection (a) takes effect as of the death of the holder of jointly held property to whose death the disclaimer relates.
  3. An interest in jointly held property disclaimed by a surviving holder of the property passes as if the disclaimant predeceased the holder to whose death the disclaimer relates.

History. Acts 2003, No. 610, § 7.

Case Notes

Creditor's Rights.

A third party may execute against a spouse's interest in a tenancy by the entirety, subject to the other spouse's continued rights of possession and survivorship, and interest in one-half of the rents and profits. Morris v. Solesbee, 48 Ark. App. 123, 892 S.W.2d 281 (1995).

28-2-208. Disclaimer of interest by trustee.

If a trustee disclaims an interest in property that otherwise would have become trust property, the interest does not become trust property.

History. Acts 2003, No. 610, § 8.

28-2-209. Disclaimer of power of appointment or other power not held in fiduciary capacity.

If a holder disclaims a power of appointment or other power not held in a fiduciary capacity, the following rules apply:

  1. If the holder has not exercised the power, the disclaimer takes effect as of the time the instrument creating the power becomes irrevocable.
  2. If the holder has exercised the power and the disclaimer is of a power other than a presently exercisable general power of appointment, the disclaimer takes effect immediately after the last exercise of the power.
  3. The instrument creating the power is construed as if the power expired when the disclaimer became effective.

History. Acts 2003, No. 610, § 9.

28-2-210. Disclaimer by appointee, object, or taker in default of exercise of power of appointment.

  1. A disclaimer of an interest in property by an appointee of a power of appointment takes effect as of the time the instrument by which the holder exercises the power becomes irrevocable.
  2. A disclaimer of an interest in property by an object or taker in default of an exercise of a power of appointment takes effect as of the time the instrument creating the power becomes irrevocable.

History. Acts 2003, No. 610, § 10.

28-2-211. Disclaimer of power held in fiduciary capacity.

  1. If a fiduciary disclaims a power held in a fiduciary capacity which has not been exercised, the disclaimer takes effect as of the time the instrument creating the power becomes irrevocable.
  2. If a fiduciary disclaims a power held in a fiduciary capacity which has been exercised, the disclaimer takes effect immediately after the last exercise of the power.
  3. A disclaimer under this section is effective as to another fiduciary if the disclaimer so provides and the fiduciary disclaiming has the authority to bind the estate, trust, or other person for whom the fiduciary is acting.

History. Acts 2003, No. 610, § 11.

28-2-212. Delivery or filing.

  1. In this section, “beneficiary designation” means an instrument, other than an instrument creating a trust, naming the beneficiary of:
    1. an annuity or insurance policy;
    2. an account with a designation for payment on death;
    3. a security registered in beneficiary form;
    4. a pension, profit-sharing, retirement, or other employment-related benefit plan; or
    5. any other nonprobate transfer at death.
  2. Subject to subsections (c) through (l), delivery of a disclaimer may be effected by personal delivery, first-class mail, or any other method likely to result in its receipt.
  3. In the case of an interest created under the law of intestate succession or an interest created by will, other than an interest in a testamentary trust:
    1. a disclaimer must be delivered to the personal representative of the decedent's estate; or
    2. if no personal representative is then serving, it must be filed with a court having jurisdiction to appoint the personal representative.
  4. In the case of an interest in a testamentary trust:
    1. a disclaimer must be delivered to the trustee then serving, or if no trustee is then serving, to the personal representative of the decedent's estate; or
    2. if no personal representative is then serving, it must be filed with a court having jurisdiction to enforce the trust.
  5. In the case of an interest in an inter vivos trust:
    1. a disclaimer must be delivered to the trustee then serving;
    2. if no trustee is then serving, it must be filed with a court having jurisdiction to enforce the trust; or
    3. if the disclaimer is made before the time the instrument creating the trust becomes irrevocable, it must be delivered to the settlor of a revocable trust or the transferor of the interest.
  6. In the case of an interest created by a beneficiary designation made before the time the designation becomes irrevocable, a disclaimer must be delivered to the person making the beneficiary designation.
  7. In the case of an interest created by a beneficiary designation made after the time the designation becomes irrevocable, a disclaimer must be delivered to the person obligated to distribute the interest.
  8. In the case of a disclaimer by a surviving holder of jointly held property, the disclaimer must be delivered to the person to whom the disclaimed interest passes.
  9. In the case of a disclaimer by an object or taker in default of exercise of a power of appointment at any time after the power was created:
    1. the disclaimer must be delivered to the holder of the power or to the fiduciary acting under the instrument that created the power; or
    2. if no fiduciary is then serving, it must be filed with a court having authority to appoint the fiduciary.
  10. In the case of a disclaimer by an appointee of a nonfiduciary power of appointment:
    1. the disclaimer must be delivered to the holder, the personal representative of the holder's estate, or to the fiduciary under the instrument that created the power; or
    2. if no fiduciary is then serving, it must be filed with a court having authority to appoint the fiduciary.
  11. In the case of a disclaimer by a fiduciary of a power over a trust or estate, the disclaimer must be delivered as provided in subsection (c), (d), or (e), as if the power disclaimed were an interest in property.
  12. In the case of a disclaimer of a power by an agent, the disclaimer must be delivered to the principal or the principal's representative.

History. Acts 2003, No. 610, § 12.

28-2-213. When disclaimer barred or limited.

  1. A disclaimer is barred by a written waiver of the right to disclaim.
  2. A disclaimer of an interest in property is barred if any of the following events occur before the disclaimer becomes effective:
    1. the disclaimant accepts the interest sought to be disclaimed;
    2. the disclaimant voluntarily assigns, conveys, encumbers, pledges, or transfers the interest sought to be disclaimed or contracts to do so; or
    3. a judicial sale of the interest sought to be disclaimed occurs.
  3. A disclaimer, in whole or part, of the future exercise of a power held in a fiduciary capacity is not barred by its previous exercise.
  4. A disclaimer, in whole or part, of the future exercise of a power not held in a fiduciary capacity is not barred by its previous exercise unless the power is exercisable in favor of the disclaimant.
  5. A disclaimer is barred or limited if so provided by law other than this subchapter.
  6. A disclaimer of a power over property which is barred by this section is ineffective. A disclaimer of an interest in property which is barred by this section takes effect as a transfer of the interest disclaimed to the persons who would have taken the interest under this subchapter had the disclaimer not been barred.

History. Acts 2003, No. 610, § 13.

28-2-214. Tax-qualified disclaimer.

Notwithstanding any other provision of this subchapter, if as a result of a disclaimer or transfer the disclaimed or transferred interest is treated pursuant to the provisions of Title 26 of the United States Code, as now or hereafter amended, or any successor statute thereto, and the regulations promulgated thereunder, as never having been transferred to the disclaimant, then the disclaimer or transfer is effective as a disclaimer under this subchapter.

In order for a disclaimer made under the provisions of this subchapter to be effective as a tax-qualified disclaimer pursuant to the provisions of Title 26 of the United States Code, the disclaimer must be made within the time periods set out in Title 26, Section 2518 of the United States Code, generally within 9 months from the day that the interest being disclaimed was created.

History. Acts 2003, No. 610, § 14.

28-2-215. Disclaimer of interest in real property — Recording of disclaimer.

  1. If real property or an interest therein is disclaimed, a copy of the disclaimer shall be recorded in the office of the circuit clerk of the county in which the property or interest disclaimed is located.
  2. If an interest in or relating to real property is disclaimed and recorded as provided in this section, the spouse of the person entering the disclaimer, if the spouse has consented to the disclaimer in writing, shall be automatically debarred from any dower or curtesy interest in the real estate to which the spouse would have been lawfully entitled except for the disclaimer.
  3. Failure to file, record, or register the disclaimer does not affect its validity as between the disclaimant and persons to whom the property interest or power passes by reason of the disclaimer.

History. Acts 2003, No. 610, § 15.

A.C.R.C. Notes. This section of the Arkansas Disclaimer of Property Interests Act differs substantially from Section 15 of the Uniform Disclaimer of Property Interests Act (U.L.A. 1999).

28-2-216. Minor, incompetent, or deceased beneficiary.

A guardian of the property or an executor or administrator of the estate of a minor, incompetent, or deceased beneficiary may, if the fiduciary deems it to be in the best interest of those concerned with the estate of the beneficiary and of those who will take the beneficiary's interest by virtue of the disclaimer and is not detrimental to the best interest of the beneficiary, with or without an order of the court having jurisdiction, shall execute and file a disclaimer on behalf of the beneficiary within the time and in the manner in which the beneficiary himself or herself could disclaim if he or she were living, of legal age, or competent.

History. Acts 2003, No. 610, § 16.

A.C.R.C. Notes. This section of the Arkansas Disclaimer of Property Interests Act differs substantially from Section 16 of the Uniform Disclaimer of Property Interests Act (U.L.A. 1999).

28-2-217. Relation to Electronic Signatures in Global and National Commerce Act.

This subchapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act (15 U.S.C. Section 7001 et seq.) but does not modify, limit, or supersede Section 101(c) of that act (15 U.S.C. Section 7001(c)) or authorize electronic delivery of any of the notices described in Section 103(b) of that act (15 U.S.C. Section 7003(b)).

History. Acts 2003, No. 610, § 17.

28-2-218. Uniformity of application and construction.

In applying and construing this Uniform Act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among States that enact it.

History. Acts 2003, No. 610, § 18.

Meaning of “this act”. Acts 2003, No. 610, codified as §§ 28-2-20128-2-218, 28-2-220, and 28-2-221.

28-2-219. [Reserved.]

A.C.R.C. Notes. Section 19 of the Uniform Disclaimer of Property Interests Act (U.L.A. 1999, as amended), a severability provision, was not adopted in Arkansas.

28-2-220. Effective date.

This act takes effect on September 1, 2003.

History. Acts 2003, No. 610, § 19.

Meaning of “this act”. Acts 2003, No. 610, codified as §§ 28-2-20128-2-218, 28-2-220, and 28-2-221.

28-2-221. Repeals.

Sections 28-2-101 — 28-2-109 are repealed.

History. Acts 2003, No. 610, § 20.

Chapters 3-7 [Reserved.]

[Reserved]

Subtitle 2. Descent And Distribution

Chapter 8 General Provisions

28-8-101. Survivorship abolished.

All survivorships of real and personal estate are forever abolished.

History. Rev. Stat., ch. 82, § 6; C. & M. Dig., § 6232; Pope's Dig., § 4351; A.S.A. 1947, § 61-114.

Research References

Ark. L. Rev.

Gift and Estate Tax Consequences of Arkansas Cotenancies, 7 Ark. L. Rev. 237.

Joint Tenancy — Right of Survivorship — “Four Unities,” 23 Ark. L. Rev. 136.

Case Notes

Choses in Action.

This section did not abolish survivorship in choses in action. Sessions v. Peay, 19 Ark. 267 (1857).

Estate by Entirety.

The right of survivorship, where real property is held by the entirety, has not been abolished by this section, nor is the character of such estate changed by a divorce of the parties. Ward v. Ward, 186 Ark. 196, 53 S.W.2d 8 (1932).

Personal property acquired with the proceeds of land held by the entirety also constituted an estate by the entirety, and it was, therefore, appropriate for the farm equipment and livestock to pass to the surviving spouse by operation of law. Morris v. Cullipher, 306 Ark. 646, 816 S.W.2d 878 (1991).

Joint Tenancy.

Where joint tenancy was created in a loan association certificate, this section did not apply, as joint tenancies are authorized by statute, and survivorship is one of the essentials of a joint tenancy. Ferrell v. Holland, 205 Ark. 523, 169 S.W.2d 643 (1943).

28-8-102. Declaration of heirs.

  1. In all cases, when any person desires to make a person an heir at law, it shall be lawful to do so by a declaration in writing in favor of the person, to be acknowledged before any judge, justice of the peace, clerk of any court, or before any court of record in this state.
  2. Before the declaration shall be of any force or effect, it shall be recorded in the county where the declarant may reside, or in the county where the person in whose favor such a declaration is made may reside.

History. Acts 1853, §§ 1, 2, p. 207; C. & M. Dig., §§ 3493, 3494; Pope's Dig., §§ 4361, 4362; A.S.A. 1947, §§ 61-301, 61-302.

Research References

Ark. L. Rev.

Domestic Relations — Adoption of Adults, 12 Ark. L. Rev. 199.

Legitimacy and Paternity, 14 Ark. L. Rev. 55.

Case Notes

Applicability.

The applicability of this section is not limited to situations where a person desires to make an illegitimate child his heir but applies to anyone that a person may desire to make his heir. Reed v. Billingslea, 226 Ark. 589, 291 S.W.2d 497 (1956).

Acknowledgment in Writing.

A mere acknowledgment in writing by one person that another person is his illegitimate son or daughter is not sufficient to make the illegitimate person an heir of a father recognizing him as a son or daughter. Reed v. Billingslea, 226 Ark. 589, 291 S.W.2d 497 (1956).

Filing of Document.

A document which designates a named individual as the declarant's sole heir at law does not have to be filed before the declarant's death for it to be of any effect. Ricketts v. Ferrell, 283 Ark. 143, 671 S.W.2d 753 (1984).

Procurement of Birth Certificate.

Where father merely procured birth certificate for his illegitimate daughter at her request and signed it before a notary public but in no way indicated that he wished to make the daughter his heir, this was not sufficient to constitute a declaration in writing that he wished to make the daughter his heir. Reed v. Billingslea, 226 Ark. 589, 291 S.W.2d 497 (1956).

Will Contest.

Sufficient showing adverse to a will to permit person claiming under this section to join in its contest. First Nat'l Bank v. Ary, 180 Ark. 1084, 24 S.W.2d 336 (1930).

Cited: Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979).

Chapter 9 Intestate Succession

Research References

Am. Jur. 23 Am. Jur. 2d, Desc. & D., § 1 et seq.

C.J.S. 26B C.J.S., Desc. & D., § 1 et seq.

Subchapter 1 — General Provisions

[Reserved]

Subchapter 2 — Arkansas Inheritance Code of 1969

Publisher's Notes. Acts 1969, No. 303, § 26, provided, in part, that this subchapter would control, for purposes of intestate succession, the devolution of real and personal property of all persons dying totally or partially intestate after midnight, December 31, 1969, and that the laws repealed or superseded by this subchapter would remain in effect with respect to intestacies occurring prior to that date.

Cross References. Claims for nursing care, § 28-13-103.

Effective Dates. Acts 1969, No. 303, § 26: midnight, Dec. 31, 1969.

Acts 1979, No. 1015, § 5: Apr. 18, 1979. Emergency clause provided: “It is hereby found and determined by the General Assembly that the U.S. Supreme Court in Trimble v. Gordon, 430 U.S. 762 (1977) found that a state's statutory prohibition of illegitimate children inheriting by intestate succession from their fathers while allowing legitimate children to inherit by intestate succession from both their fathers and mothers was constitutionally flawed under the Fourteenth Amendment's equal protection clause as discriminating against illegitimates where it excludes unnecessarily those categories of illegitimate children of intestate men for which inheritance rights can be recognized without jeopardizing the orderly settlement of estates or the dependability of titles to property passing under intestacy laws; that the Trimble decision, in effect, held that Arkansas Statute 61-141 (d) [see now § 28-9-209] as presently written is unconstitutional under the equal protection clause as discriminating against illegitimates in that it prohibits absolutely any inheritance from the father; that this Act is designed to bring the Arkansas law relating to the rights of an illegitimate child to inherit from the father into conformity with the decision of the Court in the Trimble case and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1985, No. 703, § 8: Mar. 28, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that present law provides for escheated estates to become the property of the State; that due to the financial hardships facing counties it now appears more equitable to allow estates to escheat to the county wherein the decedent resided at death; that such property will continue to escheat to the State until this Act goes into effect. Therefore, an emergency is hereby declared to exist and this Act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1987, No. 847, § 3: Apr. 8, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that some confusion exists concerning the method of computing degrees of consanguinity under present Arkansas law; that Section 14 of Act 303 of 1969 was designed and intended to apply in computing degree of relationship between two kinsmen who are related laterally and not in a direct line of ascent or descent; that if the language of that section is applied in determining degrees of relationship to persons in a direct line of ascent or descent the result is impractical and unworkable; that the purpose of this Act is to prescribe a specific procedure for determining degrees of relationship between persons related in a direct line of ascent or descent and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this Act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Research References

ALR.

Right to probate subsequently discovered will as affected by completed prior proceedings in intestate administration. 2 A.L.R.4th 1315.

Homicide as precluding taking under will or by intestacy. 25 A.L.R.4th 787.

Adopted children as subject to protection of statute regarding right of children pretermitted by will, or statute preventing disinheritance of child. 43 A.L.R.4th 947.

Rights of inheritance as between kindred of whole and half blood. 47 A.L.R.4th 561.

Ark. L. Rev.

The New Arkansas Inheritance Laws: A Step into the Present with an Eye to the Future, 23 Ark. L. Rev. 313.

Notes, Estate of Sargent v. Benton State Bank: Judicial Limitations on a Slayer's Right to Inherit from the Decedent, 38 Ark. L. Rev. 653.

Case Note, Cox v. Whitten: Limiting the Inheritance Rights of Adopted Adults, etc., 40 Ark. L. Rev. 627.

U. Ark. Little Rock L.J.

Brantley and Effland, Inheritance, The Share of the Surviving Spouse, and Willis: Arkansas Law and the Uniform Probate Code Compared, 3 U. Ark. Little Rock L.J. 361.

Averill & Brantley, A Comparison of Arkansas's Current Law Concerning Succession, Wills, and Other Donative Transfers with Article II of the 1990 Uniform Probate Code, 17 U. Ark. Little Rock L.J. 631.

28-9-201. Title.

This subchapter may be cited as the “Arkansas Inheritance Code of 1969”.

History. Acts 1969, No. 303, § 25; A.S.A. 1947, § 61-155.

28-9-202. Definitions.

As used in this subchapter:

    1. “Descendants” means a person's children, grandchildren, and all others, however remotely related to such a person, who are in a direct line of descent from him or her. In other words, the term “descendants” refers to lineal descendants and excludes an intestate's ascendants or collateral relatives.
    2. The term “descendants”, wherever used in this subchapter, shall also include adopted children and their descendants of the intestate or of any other person in connection with whom the term “descendants” may be used.
    3. In determining which of an intestate's descendants shall constitute an inheriting class, the descendants of a living descendant shall be excluded from the class; and
  1. “Dying intestate” means dying without a valid last will and testament. A person so dying is referred to in this subchapter as an “intestate”, and it is recognized that a person may die wholly or partially intestate.

History. Acts 1969, No. 303, §§ 2, 3; A.S.A. 1947, §§ 61-132, 61-133.

Case Notes

Disclaimer by Descendants.

Where the four children of the intestate who were alive at his death and the five children of the decedent's son who predeceased him had executed disclaimers of interest in the estate with the purpose of having certain property pass to his widow as the surviving spouse, but the other 12 grandchildren and 10 great grandchildren did not execute disclaimers, the property in question did not pass to the widow because under § 28-9-214 the estate would pass to the widow only if there were no surviving descendants. The disclaimers in this case resulted in the property in issue passing to the 12 grandchildren and 10 great grandchildren who did not execute disclaimers and not to the widow as the surviving spouse. Hunt v. United States, 566 F. Supp. 356 (E.D. Ark. 1983).

Cited: Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979); Smith v. Wright, 300 Ark. 416, 779 S.W.2d 177 (1989).

28-9-203. Intestate succession generally.

  1. Any part of the estate of a decedent not effectively disposed of by his or her will shall pass to his or her heirs as prescribed in the following sections.
  2. In this connection, the terms “heir” and “heirs”, as used in this subchapter, are intended to designate the person or persons who succeed by inheritance to the ownership of real or personal property in respect to which a person dies intestate.
    1. Real estate passes immediately to the heirs upon the death of the intestate, subject to the right of the personal representative under the Probate Code to mortgage, lease, exchange, sell, or possess it for the payment of claims or legacies, the preservation or protection of the assets of the estate, the distribution of the estate, or any other purpose in the best interest of the estate.
    2. However, personalty will pass to the personal representative, if any, for distribution to the heirs unless otherwise disposed of as permitted by the Probate Code.

History. Acts 1969, No. 303, § 1; 1973, No. 33, § 1; A.S.A. 1947, § 61-131.

Publisher's Notes. The Probate Code, referred to in this section, is codified as set out in the note following § 28-1-101.

Research References

Ark. L. Rev.

Andrew L. Lawson, “Body” Building: Expanding Arkansas's Standard for Holographic Wills, 71 Ark. L. Rev. 917 (2019).

Case Notes

Disclaimer by Heirs.

Where the heirs of the intestate, who were the four children of the intestate who were alive at his death and the five children of a son who predeceased him, had executed disclaimers of interest in the estate with the purpose of having certain property pass to his widow as the surviving spouse, but the other 12 grandchildren and 10 great grandchildren did not execute disclaimers, the property in question did not pass to the widow because under § 28-9-214 the estate would pass to the widow only if there were no surviving descendants. The disclaimers in this case resulted in the property in issue passing to the 12 grandchildren and 10 great grandchildren who did not execute disclaimers and not to the widow as the surviving spouse. Hunt v. United States, 566 F. Supp. 356 (E.D. Ark. 1983).

Pretermitted Children.

If an owner of real property dies leaving a will which devises the property to his widow, but does not make mention of his children, the children are considered pretermitted heirs, and decedent is deemed to have died intestate as to them, so that the title to the property vests immediately in his heirs subject to appropriate provisions for administration under the Probate Code and subject to the widow's dower and homestead rights, if any. Farmers Coop. Ass'n v. Webb, 249 Ark. 277, 459 S.W.2d 815 (1970) (decision under prior law).

Putative Father.

Evidence that the child had lived in the home of the putative father for several months and that the putative father had listed the child as a dependent child on his income tax returns for three years, without other acknowledgment of paternity, without testimony of the child's mother, and without marriage of the mother and the putative father was insufficient to establish the child as an heir of the putative father. Bell v. Bell, 249 Ark. 959, 462 S.W.2d 837 (1971).

Widow.

A widow is not an heir within the meaning of the statute of descent and distribution. Johnson v. Supreme Lodge, 53 Ark. 255, 13 S.W. 794 (1890) (decision under prior law).

Cited: Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979); Farris v. Farris, 287 Ark. 479, 700 S.W.2d 371 (1985); Sutton v. Milburn, 289 Ark. 421, 711 S.W.2d 808 (1986); Hartford Ins. Co. v. Brewer, 54 Ark. App. 1, 922 S.W.2d 360 (1996).

28-9-204. Per capita distribution.

Heirs will take per capita in the following circumstances:

    1. If all members of the class who inherit real or personal property from an intestate are related to the intestate in equal degree, they will inherit the intestate's estate in equal shares and will be said to take per capita.
    2. For illustration:
      1. If the intestate leaves no heirs except children, the children will take per capita and in equal shares;
      2. If the intestate leaves no heirs except grandchildren, all the grandchildren will take per capita and in equal shares; and
      3. If the inheriting class consists solely of great-grandchildren, or any more remote descendants of the intestate who are all related to the intestate in the same degree, they will take per capita.
    3. The same rule applies to the inheritance by collateral heirs of the intestate as when, for illustration, the inheriting class consists entirely of brothers and sisters, or consists solely of nieces and nephews who are descendants of deceased brothers and sisters, or consists of any other collateral relatives of the intestate who are related to the intestate in equal degree.
    4. Likewise, when the inheriting class consists of uncles, aunts, and grandparents or great-uncles, great-aunts, and great-grandparents who, under § 28-9-214, may constitute an inheriting class even though they represent different generations, all members of such a class who survive the intestate will take per capita and share equally; and
  1. If the members of the inheriting class are related to the intestate in unequal degree, those in the nearer degree will take per capita or in their own right, and those in the more remote degree will take per stirpes or through representation as provided in § 28-9-205.

History. Acts 1969, No. 303, § 4; A.S.A. 1947, § 61-134.

Case Notes

Cited: Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979); Dickerson v. Union Nat'l Bank, 268 Ark. 292, 595 S.W.2d 677 (1980).

28-9-205. Per stirpes distribution.

    1. Heirs will take “per stirpes” if the intestate is predeceased by one (1) or more persons who would have been entitled to inherit from the intestate had such a person survived the intestate.
    2. The intestate's estate shall be divided into as many equal shares as there are:
      1. Surviving heirs in the nearest degree of kinship to the intestate; and
      2. Persons, hereinafter called “predeceased persons”, in the same degree of kinship as the heirs mentioned in subdivision (a)(2)(A) of this section, who predeceased the intestate leaving descendants who survived the intestate.
    3. Each surviving heir in the nearest degree taking per capita shall receive one (1) share and the descendants of each predeceased person taking per stirpes shall collectively receive one (1) share.
    1. If the descendants of a predeceased person are all related to the predeceased person in the same degree, they will take in equal parts the share accruing to them collectively.
    2. However, if such descendants are related to the predeceased person in unequal degree, the share accruing to them collectively shall pass per capita to those in the nearer degree and per stirpes to those in the more remote degree according to the formula set out in subdivision (a)(3) of this section.
    3. If the descendants of a predeceased person are found in multiple generations, the above formula for division shall be applied in respect to the descendants in each generation.
    1. The provisions of this section shall be applied to both real and personal property and to both lineal and collateral heirs.
    2. However, if under § 28-9-214, the inheriting class consists of grandparents and uncles and aunts, or of great-grandparents and great-uncles and great-aunts, the per stirpes rule shall apply when an uncle or aunt, or great-uncle or great-aunt, as the case may be, shall predecease the intestate, leaving descendants. However, it shall not be applied in respect to a grandparent or great-grandparent of the intestate who predeceased the intestate. In this event the grandparent or great-grandparent shall not be counted in determining the number of shares passing to the members of the inheriting class or those taking through them by representation.

History. Acts 1969, No. 303, § 5; A.S.A. 1947, § 61-135.

Case Notes

Life Insurance.

Where a benefit certificate of a life insurance company is payable at a mother's death to her children, the issue of a child who died before the mother succeeds to the parent's share. Johnson v. Hall, 55 Ark. 210, 17 S.W. 874 (1891) (decision under prior law).

Nephews and Nieces.

After setting aside the widow's share, there being no nearer kindred than nephews and nieces, an intestate's ancestral estate shall be divided into as many shares as there are living nephews and nieces or, being deceased, then having descendants alive. The nephews and nieces take per capita while descendants of those deceased take per stirpes. Daniels v. Johnson, 216 Ark. 374, 226 S.W.2d 571, 15 A.L.R.2d 1401 (1950) (decision under prior law).

Per Capita Distribution Proper.

In a probate dispute regarding the estate of the decedent, because the decedent's aunts, uncles, and grandparents had predeceased her, the per capita distribution of the estate at the first-cousin level under subdivision (a)(2) of this section was proper as it was the first level at which the intestate had surviving heirs, regardless of what level was used to determine the inheriting class under § 28-9-214. Stokan v. Estate of Cann, 100 Ark. App. 216, 266 S.W.3d 210 (2007).

Cited: Dickerson v. Union Nat'l Bank, 268 Ark. 292, 595 S.W.2d 677 (1980).

28-9-206. Interests transmissible by inheritance.

  1. Heirs may inherit every right, title, and interest not terminated by the intestate's death in real or personal property owned by an intestate at the time of the intestate's death and not disposed of by will.
  2. The rights of heirs will be subject to:
    1. The dower or curtesy of the intestate's surviving spouse;
    2. The homestead rights of the surviving spouse and children of the intestate, including the quarantine rights of the surviving spouse;
    3. All statutory rights and allowances to the surviving spouse and minor children;
    4. Any rights of a surviving spouse in respect to income tax refunds made pursuant to a joint federal income tax return; and
    5. An administration of the estate, if any.
  3. The portion of the intestate's estate which may pass by inheritance, after giving effect to subsection (b) of this section and to any partial testamentary disposition, is hereinafter sometimes called the “heritable estate” of the intestate.
  4. In this connection it is declared that subject to the conditions set out above, the intestate's entire right and title in respect to any and all reversionary and remainder interests, rights of reentry or forfeiture for condition broken, executory interests, and possibilities of reverter, whether any of such interests are vested or contingent, shall be transmissible by inheritance and will pass to the intestate's heirs determined as of the time of the intestate's death.
  5. An intestate may transmit his or her title to real or personal property by inheritance even though:
    1. The intestate is not in actual or constructive possession thereof; and
    2. There may be adverse possession thereof.

History. Acts 1969, No. 303, §§ 7, 8; A.S.A. 1947, §§ 61-137, 61-138.

Case Notes

Dower.

Where a husband died seized of estate in land for life of another, his widow was entitled to receive as dower one-third thereof, absolutely, as in case of personalty. Stull v. Graham, 60 Ark. 461, 31 S.W. 46 (1895) (decision under prior law).

Incomplete Devise.

Under a devise of a life estate to the only child of the devisor, with no designation of a remainderman, the child takes the fee under the statute of descent. Wyatt v. Henry, 121 Ark. 479, 181 S.W. 297 (1915) (decision under prior law).

Inheritable Interests.

A personal right to use land is not inheritable. Field v. Morris, 88 Ark. 148, 114 S.W. 206 (1908) (decision under prior law).

The interest of a purchaser under a bond for title is inheritable. Hill v. Heard, 104 Ark. 23, 148 S.W. 254 (1912) (decision under prior law).

Life Estate.

A conveyance of land by a grantor to a named son “and unto his bodily, or his brothers and sisters heirs and assigns forever” amounted in substance to a conveyance to the son for life, with a remainder to (a) the son's bodily heirs, or, if the son should leave no bodily heirs, then to (b) the heirs of his brothers and sisters; such conveyance was not brought within the rule in Shelley's case by means of clause (b). Robertson v. Sloan, 222 Ark. 671, 262 S.W.2d 148 (1953) (decision under prior law).

Murder of Decedent.

Title to all lands of a father and mother who were murdered by their son vested in their only other heir, another son, and the issue of the son who had been convicted of the murders was not entitled to any interest in the lands of his deceased grandparents. Wright v. Wright, 248 Ark. 105, 449 S.W.2d 952 (1970) (decision under prior law).

Personal Estate.

Personalty converted into realty by surviving partner descends as realty. Coolidge v. Burke, 69 Ark. 237, 62 S.W. 583 (1901) (decision under prior law).

The owner of personal property may dispose of it at will during his life. Wooton v. Keaton, 168 Ark. 981, 272 S.W. 869 (1925) (decision under prior law).

Real Estate.

Immediately upon an intestate's death, the title to real estate descends to the heirs at law. Dean v. Brown, 216 Ark. 761, 227 S.W.2d 623 (1950) (decision under prior law).

Rights of Widow and Children.

Where a widow, pursuant to a family agreement, conveys her homestead and dower interests in certain lands of her husband to one of his heirs, she will be held to have abandoned her rights therein. Felton v. Brown, 102 Ark. 658, 145 S.W. 552 (1912) (decision under prior law).

Where an only child dies before the husband, the surviving wife does not, as the child's heir, inherit the whole of the husband's land on his death, as there is no title to pass through the child. Smith v. Goldby, 172 Ark. 549, 289 S.W. 780 (1927) (decision under prior law).

Where property had been devised to the widow of the decedent under a will which made no mention of his children, the children became pretermitted heirs in the land of the deceased parent, and a judgment creditor of one of the surviving children and heir-at-law could levy execution on the interest of such heir in the land in question. Farmers Coop. Ass'n v. Webb, 249 Ark. 277, 459 S.W.2d 815 (1970) (decision under prior law).

Tenants in Common.

Lands held by tenants in common by descent are distributed in equal shares. Cottonwood Lumber Co. v. Walker, 106 Ark. 102, 152 S.W. 1005 (1912) (decision under prior law).

Title.

As a general rule, the legal, as distinguished from equitable, title determines the course of descent. Howard v. Grant, 107 Ark. 594, 156 S.W. 433 (1913) (decision under prior law).

War Risk Insurance.

All war risk instalments of insurance become assets of the estate of the insured to be distributed to his heirs in accordance with the intestacy laws as of the date of his death, and upon the subsequent death of one of the beneficiaries, his share goes to his heirs. Jones v. Jones, 186 Ark. 359, 53 S.W.2d 586 (1932) (decision under prior law).

Where beneficiary under war risk policy was intestate veteran's only heir as of date of his death, balance due on beneficiary's death was payable as provided in his will and not to veteran's heirs as of date of beneficiary's death. Wade v. Wade, 192 Ark. 7, 90 S.W.2d 214 (1936), cert. denied, 299 U.S. 548, 57 S. Ct. 11, 81 L. Ed. 404 (1936) (decision under prior law).

Cited: Fletcher v. Hurdle, 259 Ark. 640, 536 S.W.2d 109 (1976).

28-9-207. Heirs as tenants in common.

When real or personal property is transmitted by inheritance to two (2) or more persons, they will take the same as tenants in common. However, when personal property is distributed in separate units by a personal representative, each distributee will hold his or her distributed part in severalty.

History. Acts 1969, No. 303, § 9; A.S.A. 1947, § 61-139.

28-9-208. Male not preferred over female.

The common law principle that in the matter of inheritance the male will be preferred over the female shall constitute no part of the Arkansas law of inheritance.

History. Acts 1969, No. 303, § 10; A.S.A. 1947, § 61-140.

28-9-209. Legitimacy of child — Effect.

    1. If the parents of a child have lived together as man and wife and, before the birth of their child, have participated in a marriage ceremony in apparent compliance with the law of the state where the marriage ceremony was performed, though the attempted marriage is void, their child is deemed to be the legitimate child of both parents for all purposes of intestate succession.
    2. A child born or conceived during a marriage is presumed to be the legitimate child of both spouses for the same purposes.
  1. If a man has a child or children by a woman, and afterward intermarries with her and recognizes the child or children to be his, the child or children shall be deemed and considered legitimate.
  2. Any child conceived following artificial insemination of a married woman with the consent of her husband shall be treated as their child for all purposes of intestate succession. Consent of the husband is presumed unless the contrary is shown by clear and convincing evidence.
  3. An illegitimate child or his or her descendants may inherit real or personal property in the same manner as a legitimate child from the child's mother or her blood kindred. The child may inherit real or personal property from his or her father or from his or her father's blood kindred, provided that at least one (1) of the following conditions is satisfied and an action is commenced or claim asserted against the estate of the father in a court of competent jurisdiction within one hundred eighty (180) days of the death of the father:
    1. A court of competent jurisdiction has established the paternity of the child or has determined the legitimacy of the child pursuant to subsection (a), (b), or (c) of this section;
    2. The man has made a written acknowledgment that he is the father of the child;
    3. The man's name appears with his written consent on the birth certificate as the father of the child;
    4. The mother and father intermarry prior to the birth of the child;
    5. The mother and putative father attempted to marry each other prior to the birth of the child by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid; or
    6. The putative father is obligated to support the child under a written voluntary promise or by court order.
  4. Property of an illegitimate person passes in accordance with the usual rules of intestate succession to his or her mother and his or her kindred of her blood and to his or her father and his or her kindred of his or her father's blood, provided that paternity has been established in accordance with subsection (d) of this section.
  5. Nothing contained in this section shall extend the time within which a right of inheritance or a right to a succession may be asserted beyond the time provided by law relating to distribution and closing of decedents' estates or to the determination of heirship, or otherwise.

History. Acts 1969, No. 303, § 11; 1979, No. 1015, §§ 1-3; A.S.A. 1947, §§ 61-141, 61-141.1.

Research References

Ark. L. Rev.

Legitimacy and Paternity, 14 Ark. L. Rev. 55.

Fuqua, Comments: Bastardy Law in Arkansas — The Need for Revision, 33 Ark. L. Rev. 178.

Mark James Chaney, Recent Developments: Arkansas Supreme Court Holds Presumed-Legitimate Children Seeking to Inherit from Out-of-Wedlock Fathers Must Meet the Same Statutory Requirements as Illegitimate Children to Make a Claim Against an Estate, and Paternity Must Be Established Within 180 Days of the Decedent's Death, 67 Ark. L. Rev. 509 (2014).

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Constitutional Law, 1 U. Ark. Little Rock L.J. 140.

Survey of Arkansas Law, Decedents' Estates, 1 U. Ark. Little Rock L.J. 185.

Survey of Arkansas Law, Family Law, 1 U. Ark. Little Rock L.J. 200.

Jans, Survey of Decedents' Estates, 3 U. Ark. Little Rock L.J. 216.

Arkansas Law Survey, Irving, Family Law, 9 U. Ark. Little Rock L.J. 173.

Survey — Property, 11 U. Ark. Little Rock L.J. 243.

Case Notes

Constitutionality.

This section does not unconstitutionally discriminate against blacks. Brown v. Danley, 263 Ark. 480, 566 S.W.2d 385, cert. denied, 439 U.S. 983, 99 S. Ct. 572, 58 L. Ed. 2d 654 (1978).

Former provision of subsection (d) limiting the right of an illegitimate child to inherit from its father bore no rational relationship to any legitimate state purpose. Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979) (decision under prior law).

This section does not violate the equal protection clause of U.S. Const. Amend. 14. Statutory differentiation based solely on illegitimacy can be justified by a state's interests in preventing spurious claims against intestate estates, and in the maintenance of a prompt and accurate method of distributing an intestate's property. Boatman v. Dawkins, 294 Ark. 421, 743 S.W.2d 800 (1988).

Requirement that an action be filed and a condition satisfied within 180 days did not violate a purported beneficiary's federal constitutional due process rights because she had no right to bring a paternity action on her own behalf since she was a person for whom paternity was presumed. The purported beneficiary was seeking to recover as a pretermitted heir. Bell v. McDonald, 2014 Ark. 75, 432 S.W.3d 18 (2014).

Requirement that an action be filed and a condition satisfied within 180 days did not violate a purported beneficiary's federal constitutional equal protection rights because she had no right to bring a paternity action on her own behalf since she was a person for whom paternity was presumed. The purported beneficiary was seeking to recover as a pretermitted heir. Bell v. McDonald, 2014 Ark. 75, 432 S.W.3d 18 (2014).

Applicability.

Former statute was not applicable where question involved was whether child born after divorce was issue of the marriage. George v. George, 247 Ark. 17, 444 S.W.2d 62 (1969) (decision under prior law).

This section and § 28-40-103 are not applicable in a paternity case; paternity action must be commenced in chancery court because it is not a determination of heirship. In re Estate of F.C., 321 Ark. 191, 900 S.W.2d 200 (1995).

This section is irrelevant in the context of the distribution of the proceeds of a wrongful-death settlement. Rager v. Turley, 68 Ark. App. 187, 6 S.W.3d 113 (1999).

Subsection (d) does not apply to claims to share in a wrongful-death settlement. Rager v. Turley, 342 Ark. 223, 27 S.W.3d 729 (2000).

Where the alleged heir had never been determined a legitimate heir of the decedent, his petition for appointment as administrator of the estate could not constitute an action or claim against the estate under subsection (d) of this section because the alleged heir did not comply with the 180-day requirement. Burns v. Estate of Cole, 364 Ark. 280, 219 S.W.3d 134 (2005).

Annulment of Marriage.

Annulment decree against mother on the ground that she was pregnant by other man, which was offered into evidence to determine heirship of son to intestate's estate, was not res judicata as to question of legitimacy of son. Earp v. Earp, 250 Ark. 107, 464 S.W.2d 70 (1971) (decision under prior law).

Bigamous Marriage.

Children of bigamous marriage were legitimate and entitled to inherit from their father. Evatt v. Miller, 114 Ark. 84, 169 S.W. 817 (1914); Cooper v. McCoy, 116 Ark. 501, 173 S.W. 412 (1915); Morrison v. Nicks, 211 Ark. 261, 200 S.W.2d 100 (1947) (decision under prior law).

Marriage between plaintiff and defendant while defendant was legally married to another was void, but divorce proceeding would be remanded for the purpose of entering order legitimatizing children born of union. Bruno v. Bruno, 221 Ark. 759, 256 S.W.2d 341 (1953) (decision under prior law).

The fact that a mother may not have been divorced from former husband would not be material insofar as the legitimacy of a child is concerned. Yocum v. Holmes, 222 Ark. 251, 258 S.W.2d 535 (1953) (decision under prior law).

Inheritance by Illegitimate Child.

Where a serviceman's life insurance policy named no beneficiary but stated that proceeds were to go first to a widow, second to a child, and third to his parents, the proceeds would go to his illegitimate child whose paternity he had acknowledged by affidavit filed in court. Cantrell v. Prudential Ins. Co. of Am., 252 Ark. 70, 477 S.W.2d 484 (1972).

This section giving an illegitimate child 180 days to file a claim creates a new right, and the right is created for only 180 days. State interests may justify the imposition of special requirements upon an illegitimate child who asserts a right to inherit from her father, and, of course, it justifies the enforcement of generally applicable limitations on the time and the manner in which claims may be asserted. Boatman v. Dawkins, 294 Ark. 421, 743 S.W.2d 800 (1988).

Because there is no comma separating “illegitimate child” and the modifier “except such as would inherit under the law of descent and distribution” in the definition of child in § 28-1-102(a)(1), the General Assembly intended for “except such as would inherit…” to modify only “illegitimate children.” McCoy v. Walker, 317 Ark. 86, 876 S.W.2d 252 (1994).

The heirs of the decedent were not estopped from invoking the requirement of subsection (d) of this section that the illegitimate son of the decedent commence an action against the decedent's estate within 180 days of the decedent's death, notwithstanding that the illegitimate son had been acknowledged by the decedent, that he was named as the decedent's son in his obituary, and that he was described as an heir in a deed. Rasberry v. Ivory, 67 Ark. App. 227, 998 S.W.2d 431 (1999).

Illegitimate child was awarded a share of his father's estate as a pretermitted heir under § 28-39-407(b) where the wife waived an issue regarding competent jurisdiction by failing to object to a failure to join the estate in a paternity action; moreover, collateral estoppel applied because the wife appeared at the paternity proceeding, it was fully litigated, the necessary party issue was not raised, and no appeal was filed. Taylor v. Hamilton, 90 Ark. App. 235, 205 S.W.3d 149 (2005).

Time limitations in the nonclaim statute, § 28-50-101(a), do not apply to claims by illegitimate children under subsection (d) of this section; therefore, the trial court did not err by finding that an illegitimate son was a pretermitted heir. Taylor v. Hamilton, 90 Ark. App. 235, 205 S.W.3d 149 (2005).

Circuit court did not err in finding that one of the six conditions set out in subdivisions (d)(1)-(6) was required to be satisfied within 180 days from the death of the decedent; the alleged heir failed to commence an action or assert a claim pursuant to the statute. Burns v. Estate of Cole, 364 Ark. 280, 219 S.W.3d 134 (2005).

Decedent's illegitimate, pretermitted child was not entitled to inherit from decedent as he was required to meet requirements of §§ 28-39-407(b), 28-1-102(a)(1), and the six requirements of subsection (d) of this section, but he failed to show that he had been recognized by the decedent or by a court and he failed to file his action within 180 days of decedent's death. Shelton v. Keathley, 367 Ark. 568, 242 S.W.3d 223 (2006).

Under a plain reading of the language in this section, one of the six conditions must have been satisfied and an action commenced or a claim asserted against the estate prior to the expiration of the 180-day time period. Therefore, where a paternity case was not completed within the time period, a purported beneficiary failed to state a claim to recover from an estate as a pretermitted heir. Bell v. McDonald, 2014 Ark. 75, 432 S.W.3d 18 (2014).

Circuit court did not err in recognizing a son born out of wedlock as the decedent's sole heir because the son satisfied the written-acknowledgment condition in subsection (d) of this section; a beneficiary-designation form depicted that the decedent clearly wrote “son” and provided the son's proper name, Social Security number, date of birth, address, phone number, and gender on the form, and the 180-day limit was satisfied because the form was completed before decedent's death. Noble v. Neal, 2019 Ark. App. 86, 572 S.W.3d 40 (2019).

Court's establishment of paternity is the particular statutory condition that must be met within 180 days following decedent's death; a decedent's acknowledgment must have been accomplished before the decedent's death, allowing a child born out of wedlock 180 days following a putative father's death to make a claim based on the decedent's written acknowledgment. Noble v. Neal, 2019 Ark. App. 86, 572 S.W.3d 40 (2019).

Presumption of Legitimacy.

A parent's testimony is incompetent when it is employed to bastardize a child, which is presumed legitimate by one of the strongest presumptions found in the law. Bankston v. Prime W. Corp., 271 Ark. 727, 610 S.W.2d 586 (1981).

There is a statutory presumption that a child born during a marriage is the legitimate child of both spouses. The longstanding common law rule is that the declarations of a father or mother, cannot be admitted to bastardize the issue born after marriage. Lakey v. Lakey, 18 Ark. App. 182, 712 S.W.2d 663 (1986).

Presumption of legitimacy of a child conceived, but not born, during marriage, is rebuttable. Willmon v. Hunter, 297 Ark. 358, 761 S.W.2d 924 (1988).

A child is considered legitimate if the parents were married at the time of its conception and before its birth, even though they were not married to each other at the time the child was born. Willmon v. Hunter, 297 Ark. 358, 761 S.W.2d 924 (1988).

It is not against the public policy of this state to allow a third party to attempt to illegitimize a child which was conceived, but not born, during marriage. Willmon v. Hunter, 297 Ark. 358, 761 S.W.2d 924 (1988).

Proof of Paternity.

Evidence established recognition of child by father. Rogers v. Morgan, 213 Ark. 229, 210 S.W.2d 129 (1948); Parker v. Hadley, 227 Ark. 161, 296 S.W.2d 391 (1956); Tuttle v. Phillips, 249 Ark. 617, 460 S.W.2d 328 (1970) (decision under prior law).

Evidence insufficient to establish paternity. Martin v. Martin, 212 Ark. 204, 205 S.W.2d 189 (1947); Edgar v. Dickens, 230 Ark. 7, 320 S.W.2d 761 (1959); Johnson v. Sanford, 239 Ark. 362, 389 S.W.2d 421 (1965) (decision under prior law); Eldridge v. Sullivan, 980 F.2d 499 (8th Cir. 1992).

In a suit to determine the distribution of proceeds of an insurance policy, it was not error to introduce an affidavit made by the deceased in a bastardy suit after being advised by an attorney, acknowledging that he was the father of the illegitimate child. Cantrell v. Prudential Ins. Co. of Am., 252 Ark. 70, 477 S.W.2d 484 (1972).

Where the proof as a whole indicated that the decedent, upon a number of occasions, had acknowledged the petitioner as being his son, the trial court's finding to the contrary was reversible error. Christman v. Jones, 254 Ark. 936, 497 S.W.2d 14 (1973).

Where in an action partitioning a decedent's estate, some putative heirs of the decedent sought a share of the proceeds when the land was partitioned, the evidence presented did not support their claim through their mother who allegedly was a daughter of the decedent, since the putative heirs did not prove that the decedent even knew their mother's mother some 26 years before he married her or that he fathered her child, the putative heirs' mother, when he was 15 and she was only 13 years of age. Ford v. King, 268 Ark. 128, 594 S.W.2d 227 (1980).

In probate proceeding which occurred after subsection (d) of this section was declared unconstitutional, but prior to 1979 amendment of the subsection, determination that woman was illegitimate daughter of decedent was properly made from clear, cogent, and convincing proof rather than written acknowledgment of the putative father or a judicial determination during the lifetime of the parties. Lewis v. Petty, 272 Ark. 250, 613 S.W.2d 585 (1981).

Testimony as to general reputation in the community on the issue of paternity and woman's birth certificate were admissible in order to determine if the woman was the illegitimate daughter of decedent. Lewis v. Petty, 272 Ark. 250, 613 S.W.2d 585 (1981) (decision under prior law).

Evidence supported the finding that the claimants were the legitimate children of their father and were entitled to inherit from their great-uncle through their father. Allen v. Wallis, 279 Ark. 149, 650 S.W.2d 225 (1983).

Paternity must be proven by clear and convincing evidence, i.e., that which instantly tilts the scales in the affirmative when weighed against evidence in opposition, and clearly convinces the factfinder that the evidence is true. Eldridge v. Sullivan, 980 F.2d 499 (8th Cir. 1992).

Retroactive Effect.

There is no language from which a legislative intention that the 1979 amendment to this section should have retroactive effect can be implied. Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979).

To prevent chaotic conditions arising from the lack of title to real property, Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977), under which former subsection (d) of this section was constitutionally invalid should not be applied retroactively. Frakes v. Hunt, 266 Ark. 171, 583 S.W.2d 497 (1979), cert. denied, 444 U.S. 942, 100 S. Ct. 297, 62 L. Ed. 2d 309 (1979).

Cited: Walker v. Yarbrough, 257 Ark. 300, 516 S.W.2d 390 (1974); Compton v. White, 266 Ark. 648, 587 S.W.2d 829 (1979); Stewart v. Smith, 269 Ark. 363, 601 S.W.2d 837 (1980); Fulton v. Harris, 658 F.2d 641 (8th Cir. 1981); Henry v. Johnson, 292 Ark. 446, 730 S.W.2d 495 (1987); Finley v. Astrue, 372 Ark. 103, 270 S.W.3d 849 (2008); Finley v. Farm Cat, Inc., 103 Ark. App. 292, 288 S.W.3d 685 (2008).

28-9-210. Posthumous heirs.

  1. Posthumous descendants of the intestate conceived before his or her death but born thereafter shall inherit in the same manner as if born in the lifetime of the intestate.
  2. However, no right of inheritance shall accrue to any person other than a lineal descendant of the intestate, unless such a person has been born at the time of the intestate's death.

History. Acts 1969, No. 303, § 12; A.S.A. 1947, § 61-142.

Research References

ALR.

Legal status of posthumously conceived child of decedent. 17 A.L.R.6th 593.

Case Notes

In Vitro Fertilization.

Child who was created as an embryo through in vitro fertilization during his parents' marriage, but implanted into his mother's womb after his father's death, could not inherit from the father under Arkansas intestacy law as a surviving child under this section; in order to inherit, the child had to have been conceived before the father's death. Finley v. Astrue, 372 Ark. 103, 270 S.W.3d 849 (2008).

28-9-211. Alienage.

  1. No person is disqualified to inherit, or transmit by inheritance, real or personal property because he or she is or has been an alien.
  2. An alien may inherit, or transmit by inheritance, as freely as a citizen of this state, subject to the same laws of intestate succession which are applicable to citizens of this state.
  3. The term “alien” as used in this section refers to a person who is not a citizen of the United States.

History. Acts 1969, No. 303, § 13; A.S.A. 1947, § 61-143.

28-9-212. Computing degrees of consanguinity.

    1. In computing the degrees of relationship between any two (2) kinsmen who are not related in a direct line of ascent or descent, it is proper to start with the common ancestor of the kinsmen and count downwards. In whatever degree the kinsmen or the more remote of them is distant from the common ancestor, that is the degree in which they are related to each other.
    2. Thus two (2) or more children of a common parent are related to each other in the first degree, because from the common parent to each of the children is counted only one (1) degree.
    3. But a person and his or her nephew are related in the second degree, for the nephew is two (2) degrees removed from his grandparent who is the common ancestor.
    4. A person and his or her second cousin are related in the third degree, for they are both three (3) degrees removed from the great-grandparent who is their common ancestor.
  1. In computing the degrees of relationship between any two (2) kinsmen related in a direct line of ascent or descent, the degree of relationship shall be determined by starting with one (1) of the persons and counting up or down to the other. Thus, a person and his or her:
    1. Parent or child are related in the first degree;
    2. Grandparent or grandchild are related in the second degree; and
    3. Great-grandparent or great-grandchild are related in the third degree.

History. Acts 1969, No. 303, § 14; A.S.A. 1947, § 61-144; Acts 1987, No. 847, § 1.

Case Notes

Advancement of Class.

When the persons composing the nearest class of kin of an intestate die before his death, the next class in order will be advanced, and the persons composing it will inherit equally if equal in degree, and per stirpes if not in equal degree. Garrett v. Bean, 51 Ark. 52, 9 S.W. 435 (1888); McFarlane v. Grober, 70 Ark. 371, 69 S.W. 56 (1902) (decision under prior law).

Common Ancestor.

Degrees of relationship are counted by the number of degrees removed from the common ancestor. Carton v. Missouri Pac. R.R., 315 Ark. 5, 865 S.W.2d 635 (1993).

Second Degree.

First cousins are related in the second degree of consanguinity. Morton v. Benton Publishing Co., 291 Ark. 620, 727 S.W.2d 824 (1987).

28-9-213. Kinsmen of the half blood.

An intestate's kinsmen of the half blood will inherit the intestate's real or personal property to the same extent as if they were the intestate's kinsmen of the whole blood.

History. Acts 1969, No. 303, § 15; A.S.A. 1947, § 61-145.

Case Notes

Class of Heirs.

Where one group of claimants of heirship were related to the decedent as descendants of the decedent's maternal grandfather and another group was descendant only from one of her maternal great-grandfathers, the descendants of the grandfather inherited to the exclusion of the descendants of the great-grandfather. Locke v. Cook, 245 Ark. 787, 434 S.W.2d 598 (1968) (decision under prior law).

Proof of Marriage.

In proceeding to determine heirship, half brother was entitled to share estate with nephew even though no certificate of marriage was introduced showing a second marriage of father of deceased where there was substantial evidence showing a second marriage actually existed and proof of birth of half brother as result of second marriage by a birth certificate filed prior to death of deceased. Butler v. Alldredge, 219 Ark. 197, 242 S.W.2d 136 (1951) (decision under prior law).

28-9-214. Tables of descents.

The heritable estate of an intestate as defined in § 28-9-206 shall pass as follows upon the intestate's death:

  1. First, to the children of the intestate and the descendants of each child of the intestate who may have predeceased the intestate. The children and descendants will take per capita or per stirpes according to §§ 28-9-204 and 28-9-205;
  2. Second, if the intestate is survived by no descendant, to the intestate's surviving spouse unless the intestate and the surviving spouse had been continuously married less than three (3) years next preceding the death of the intestate, in which event the surviving spouse will take merely fifty percent (50%) of the intestate's heritable estate;
  3. Third, if the intestate is survived by no descendant or spouse, to the intestate's surviving parents, sharing equally, or to the sole surviving parent if only one (1) of them shall be living;
  4. Fourth, if the intestate is survived by no descendant but is survived by a spouse to whom the intestate has been continuously married less than three (3) years next preceding the death of the intestate, the entire portion of his or her heritable estate which does not pass to the surviving spouse under subdivision (2) of this section shall pass to the intestate's surviving parents, sharing equally, or to the sole surviving parent if only one (1) of them shall be living;
  5. Fifth, if the intestate is survived by no descendant or parent, then all of his or her heritable estate which under subdivisions (3) and (4) of this section would have vested in the intestate's surviving parent or parents will pass to the intestate's brothers and sisters and the descendants of any brothers and sisters of the intestate who may have predeceased the intestate, such brothers, sisters, and descendants taking per capita or per stirpes according to §§ 28-9-204 and 28-9-205;
  6. Sixth, if the intestate is survived by no descendant, then in respect to such portion of his or her heritable estate as does not pass under subdivisions (2)-(5) of this section, the inheriting class will be the surviving grandparents, uncles, and aunts of the intestate. In this situation, each surviving grandparent shall take the same share as each surviving uncle and aunt, and no distinction shall be made between the paternal and maternal sides. In other words, a maternal grandparent, uncle, or aunt shall take the same share as a paternal grandparent, uncle, or aunt and vice versa. If any uncle or aunt of the intestate shall predecease the intestate, the descendants of the deceased uncle or aunt will take, per capita or per stirpes according to §§ 28-9-204 and 28-9-205, the share the decedent would have taken if he or she had survived the intestate;
  7. Seventh, if the intestate is survived by no descendant, then in respect to the portion of his or her estate as does not pass under subdivisions (2)-(6) of this section, the inheriting class will be the surviving great-grandparents and great-uncles and great-aunts of the intestate. In this situation, each surviving great-grandparent shall take the same share as each surviving great-uncle and great-aunt, and no distinction shall be made between the paternal and maternal sides. In other words, a maternal great-grandparent, great-uncle, or great-aunt shall take the same share as a paternal great-grandparent, great-uncle, or great-aunt and vice versa. If any great-uncle or great-aunt shall predecease the intestate, the descendants of the decedent will take, per capita or per stirpes according to §§ 28-9-204 and 28-9-205, the share the decedent would have taken if he or she had survived the intestate; and
  8. Eighth, if heirs capable of inheriting the entire heritable estate cannot be found within the inheriting classes prescribed in subdivisions (1)-(7) of this section, the real and personal property of the intestate, or the portion not passing under those subdivisions, shall pass according to § 28-9-215, devolution when all or some portion of a heritable estate does not pass under this section.

History. Acts 1969, No. 303, § 19; A.S.A. 1947, § 61-149.

Cross References. Dower and curtesy, § 28-11-101 et seq.

Research References

Ark. L. Rev.

Estate Planning with Disclaimers in Arkansas, 27 Ark. L. Rev. 411.

U. Ark. Little Rock L.J.

Averill & Brantley, A Comparison of Arkansas's Current Law Concerning Succession, Wills, and Other Donative Transfers with Article II of the 1990 Uniform Probate Code, 17 U. Ark. Little Rock L.J. 631.

Case Notes

Abandonment of Marriage.

In a suit to contest a will, where no evidence was shown and no contention was made that the divorce and remarriage intervened between the time of marriage and the death of husband, the court was right in refusing to hear that the widow had abandoned her marriage with the decedent and thus was not “continuously married.” Mabry v. Mabry, 259 Ark. 622, 535 S.W.2d 824 (1976).

Conflict of Laws.

Inheritance is governed by the lex rei sitae. Crossett Lumber Co. v. Files, 104 Ark. 600, 149 S.W. 908 (1912); Wilson v. Storthz, 117 Ark. 418, 175 S.W. 45 (1915) (decision under prior law).

Devolution of Intestate's Property.

The distinction between ancestral estates and new acquisitions in the devolution of property by intestacy was abolished in Arkansas by Acts 1969, No. 303 and has not been reinstated. Accordingly, where a decedent died intestate and without descendants in 1982, the decedent's property, which consisted principally of lands that were formerly owned by her late father, all went to her surviving husband, to whom she had been married for 53 years. Heath v. Clear, 280 Ark. 482, 659 S.W.2d 504 (1983).

Disclaimer by Heirs.

Where the four children of the intestate who were alive at his death and the five children of a son who predeceased him had executed disclaimers of interest in the estate with the purpose of having certain property pass to his widow as the surviving spouse, but the other 12 grandchildren and 10 great grandchildren did not execute disclaimers, the property in question did not pass to the widow because under this section the estate would pass to the widow only if there were no surviving descendants. The disclaimers in this case resulted in the property in issue passing to the 12 grandchildren and 10 great grandchildren who did not execute disclaimers and not to the widow as the surviving spouse. Hunt v. United States, 566 F. Supp. 356 (E.D. Ark. 1983).

Escheat.

Escheat occurs immediately upon the death of the intestate, not when the probate court enters its order finding the estate must escheat. Newton County v. West, 293 Ark. 461, 739 S.W.2d 141 (1987).

Intestate Succession.

In a case seeking to determine heirship, a surviving spouse was properly awarded a one-sixth interest in property, even though she had waived her right to dower in a conveyance, because she received her interest after the death of her husband, pursuant to subdivision (2) of this section. Scroggin v. Scroggin, 103 Ark. App. 144, 286 S.W.3d 758 (2008).

Per Capita Distribution Proper.

In a probate dispute regarding the estate of the decedent, because the decedent's aunts, uncles, and grandparents had predeceased her, the per capita distribution of the estate at the first-cousin level under § 28-9-205(a)(2) was proper as it was the first level at which the intestate had surviving heirs, regardless of what level was used to determine the inheriting class under this section. Stokan v. Estate of Cann, 100 Ark. App. 216, 266 S.W.3d 210 (2007).

Cited: McDonald v. Petty, 254 Ark. 705, 496 S.W.2d 365 (1973); Maryland Cas. Co. v. Rowe, 256 Ark. 221, 506 S.W.2d 569 (1974); Keenan v. Peevy, 267 Ark. 218, 590 S.W.2d 259 (1979); Wilson v. Kemp, 7 Ark. App. 44, 644 S.W.2d 306 (1982); Smith v. Wright, 300 Ark. 416, 779 S.W.2d 177 (1989); Wisdom v. McBride, 311 Ark. 492, 845 S.W.2d 6 (1993); Douglas v. Holbert, 335 Ark. 305, 983 S.W.2d 392 (1998); Cockrum v. Fox, 359 Ark. 508, 199 S.W.3d 69 (2004); Dotson v. Dotson, 2009 Ark. App. 819, 372 S.W.3d 398 (2009).

28-9-215. Devolution where no heir under § 28-9-214.

If an heir to the heritable estate, or some portion thereof, cannot be found under § 28-9-214, then the portion of the heritable estate as does not pass under § 28-9-214 will pass as follows:

  1. First, to the surviving spouse of the intestate even though they had been married less than three (3) years;
    1. Second, if there is no such surviving spouse, to the heirs, determined as of the date of the intestate's death in accordance with § 28-9-214, of the intestate's deceased spouse, meaning the spouse to whom the intestate was last married if there had been more than one (1) marriage.
    2. However, in case a marriage was terminated by divorce rather than by death, the heirs of the divorced spouse shall not inherit; and
  2. Third, if there is no person capable of inheriting under subdivision (1) or (2) of this section, the estate shall escheat to the county wherein the decedent resided at death.

History. Acts 1969, No. 303, § 20; 1985, No. 703, § 1; A.S.A. 1947, § 61-150.

Research References

U. Ark. Little Rock L.J.

Legislative Survey, Probate, 8 U. Ark. Little Rock L.J. 597.

Averill & Brantley, A Comparison of Arkansas's Current Law Concerning Succession, Wills, and Other Donative Transfers with Article II of the 1990 Uniform Probate Code, 17 U. Ark. Little Rock L.J. 631.

Case Notes

Burden of Proof.

The proof need not show to a certainty that the deceased left no other heirs and the testimony of a widow alone raises a prima facie case in her own favor, throwing the burden of proof upon a stranger to show that there were other heirs. Carrier v. Comstock, 108 Ark. 515, 159 S.W. 1097 (1913) (decision under prior law).

Escheat.

Escheat occurs immediately upon the death of the intestate, not when the probate court enters its order finding the estate must escheat. Newton County v. West, 293 Ark. 461, 739 S.W.2d 141 (1987).

Cited: Wilson v. Kemp, 7 Ark. App. 44, 644 S.W.2d 306 (1982).

28-9-216. Advancements.

  1. If a person dies intestate as to all his or her estate, property which he or she gave in his or her lifetime to an heir shall be treated as an advancement against the heir's share of the estate if declared in writing by the decedent or acknowledged in writing by the heir to be an advancement.
  2. For this purpose, the property advanced shall be valued as of the time the heir came into possession or enjoyment of the property or as of the time of death of the decedent, whichever first occurs.
  3. If the recipient of the property fails to survive the decedent, the property shall not be taken into account in computing the share of the recipient's descendants.

History. Acts 1969, No. 303, § 23; A.S.A. 1947, § 61-153.

Case Notes

Definition.

An “advancement” is a gift by a parent to a child in anticipation of what it is supposed the child will be entitled to on the death of the parent. Holland v. Bonner, 142 Ark. 214, 218 S.W. 665, 26 A.L.R. 1101 (1920) (decision under prior law).

Intention.

Whether a conveyance or transfer of money or property by a parent to a child is an advancement or a gift depends on the intention of the parties, and if it appears that a gift is intended, it will not be treated as an advancement. Holland v. Bonner, 142 Ark. 214, 218 S.W. 665, 26 A.L.R. 1101 (1920) (decision under prior law).

Nominal Consideration.

Proof that a parent conveyed land worth from $6,000 to $8,000 for $500 was held a prima facie case of advancement to the extent at least of the difference between the consideration expressed and the real value of the land conveyed. Holland v. Bonner, 142 Ark. 214, 218 S.W. 665, 26 A.L.R. 1101 (1920) (decision under prior law).

Where consideration was nominal and deed was not recorded until grantor's death more than a year after execution, court was justified in holding that presumption of law as to advancements had not been overcome. Neal v. Neal, 194 Ark. 226, 106 S.W.2d 595 (1937) (decision under prior law).

Presumption.

In the absence of clear evidence to the contrary, a gift of a horse and of an insurance policy from a father to his daughter was presumed to be an advancement. Culberhouse v. Culberhouse, 68 Ark. 405, 59 S.W. 38 (1900) (decision under prior law).

A voluntary conveyance of land by a father to his son will, in the absence of evidence to the contrary, be presumed to be an advancement. Goodwin v. Parnell, 69 Ark. 629, 65 S.W. 427 (1901) (decision under prior law).

The presumption is that conveyances from a father to his daughters are intended as advancements. Jackson v. Richardson, 182 Ark. 997, 33 S.W.2d 1095 (1930) (decision under prior law).

Where a parent makes a voluntary conveyance or gift to his child, the law presumes that it is an advancement and that the parent intends that all his children shall equally share not only in what remains at his death, but in all that came from him. Neal v. Neal, 194 Ark. 226, 106 S.W.2d 595 (1937) (decision under prior law).

Testate Estates.

The doctrine of advancements does not apply to testate estates. Blanks v. Clark, 68 Ark. 98, 56 S.W. 1063 (1900) (decision under prior law).

Value of Insurance Policy.

The value of an advancement of a policy of life insurance payable to a daughter at her father's death was to be estimated as of the time when her right of beneficial enjoyment accrued, which was at the death of the insured. Culberhouse v. Culberhouse, 68 Ark. 405, 59 S.W. 38 (1900) (decision under prior law).

28-9-217. Debts to decedent.

A debt owed to the decedent shall not be charged against the intestate share of any person except the debtor. If the debtor fails to survive the decedent, the debt shall not be taken into account in computing the share of the debtor's descendants.

History. Acts 1969, No. 303, § 24; A.S.A. 1947, § 61-154.

Case Notes

Debts.

The interest of an heir in his ancestor's real estate descends to him free from his general debts to his intestate. Wheeler & Motter Mercantile Co. v. Knox, 136 Ark. 95, 206 S.W. 46 (1918) (decision under prior law).

Children inherit property subject to debts and dower. Yeates v. Yeates, 179 Ark. 543, 16 S.W.2d 996, 65 A.L.R. 466 (1929) (decision under prior law).

28-9-218. Doctrine of first purchaser abolished.

This subchapter is intended to abolish the common law rule of the blood of the first purchaser under which in the case of successive inheritances of land the intestate's property would descend only to such of his or her heirs as were of the blood of the next preceding ancestor in the line of successive descents who acquired title by purchase, that is to say, by any method other than descent.

History. Acts 1969, No. 303, § 16; A.S.A. 1947, § 61-146.

28-9-219. Distinction between ancestral estates and new acquisitions abolished.

  1. Only for the purposes of intestate succession, the distinction between “ancestral estate” and “new acquisitions” in respect to real estate owned by an intestate is abolished.
  2. The devolution of real estate and personal property which the intestate acquired by gift, devise, or descent from some ancestor shall be controlled by the same rules which apply to the devolution of real estate and personal property acquired by the intestate in any other manner.

History. Acts 1969, No. 303, § 18; A.S.A. 1947, § 61-148.

Case Notes

Devolution of Intestate's Property.

The distinction between ancestral estates and new acquisitions in the devolution of property by intestacy was abolished in Arkansas by Acts 1969, No. 303 and has not been reinstated. Accordingly, where a decedent died intestate and without descendants in 1982, the decedent's property, which consisted principally of lands that were formerly owned by her late father, all went to her surviving husband. Heath v. Clear, 280 Ark. 482, 659 S.W.2d 504 (1983).

28-9-220. Conveyance to heirs or next of kin — Doctrine of worthier title abolished.

  1. When any property is limited, mediately or immediately, in an otherwise effective testamentary conveyance, in form or in effect, to the heirs or next of kin of the conveyor, or to a person or persons who on the death of the conveyor are some or all of his or her heirs or next of kin, the conveyees acquire the property by purchase and not by descent.
  2. When any property is limited in an otherwise effective conveyance inter vivos, in form or in effect, to the heirs or next of kin of the conveyor, which conveyance creates one (1) or more prior interests in favor of a person or persons in existence, the conveyance operates in favor of such heirs or next of kin by purchase and not by descent.

History. Acts 1969, No. 303, §§ 21, 22; A.S.A. 1947, §§ 61-151, 61-152.

Case Notes

Predeceased Heir.

Since the provisions of this section do not take effect until the death of the testator, where the residuary clause of the will of testator left all property to a brother who survived testator and to a sister who predeceased testator, the sister could not have been an heir of the testator at the time of his death for she had already died. Eckert Heirs v. Harlow, 251 Ark. 1018, 476 S.W.2d 244 (1972).

28-9-221. Child conceived after death of parent.

  1. Notwithstanding the provisions of any law to the contrary, a child conceived after the death of a decedent who specifically authorized the decedent's surviving spouse, in a writing that is either notarized or witnessed by a licensed physician or a person acting under the supervision of a licensed physician, to use the decedent's gametes after the decedent's death shall be deemed the child of the decedent with the right to inherit from the decedent if the child is conceived within twelve (12) months following the death of the decedent and born within nineteen (19) months following the death of the decedent.
  2. This section is retroactive to December 1, 2009, solely for the purpose of establishing a posthumous child's entitlement to Social Security benefits under the federal Social Security Act, 42 U.S.C. § 402(d), deriving from the decedent.

History. Acts 2015, No. 1256, § 1.

Chapter 10 Uniform Simultaneous Death Act

Research References

Am. Jur. 23 Am. Jur. 2d, Desc. & D., §§ 56-58.

Ark. L. Rev.

Some Practical Aspects to Drafting in the Estate Planning Field, 21 Ark. L. Rev. 5.

C.J.S. 26B C.J.S., Desc. & D., §§ 14, 15.

U. Ark. Little Rock L.J.

Brantley and Effland, Inheritance, The Share of the Surviving Spouse, and Wills: Arkansas Law and the Uniform Probate Code Compared, 3 U. Ark. Little Rock L.J. 361.

Subchapter 1 — Uniform Simultaneous Death Act

A.C.R.C. Notes. Because of the enactment of subchapter 2 of this chapter by Acts 2005, No. 74, the existing provisions of this chapter have been designated as subchapter 1.

Acts 2005, No. 74, § 2, provided:

“Effective date of repeal. Except as provided in § 28-10-211, §§ 28-10-10128-10-112 shall be repealed and superseded by §§ 28-10-20128-10-211 on January 1, 2006.”

Effective Dates. Acts 2005, No. 74, § 3: Jan. 1, 2006, by its own terms.

28-10-101 — 28-10-112. [Repealed.]

Effective Dates. Acts 2005, No. 74, § 3: repeal effective by its own terms January 1, 2006.

Publisher's Notes. This subchapter was repealed by Acts 2005, No. 74, § 3, effective January 1, 2006. The subchapter was derived from the following sources:

28-10-101. Acts 1941, No. 15, § 1; A.S.A. 1947, § 61-124.

28-10-102. Acts 1941, No. 15, § 2; 1959, No. 203, § 1; A.S.A. 1947, § 61-125.

28-10-103. Acts 1941, No. 15, § 3; 1959, No. 203, § 2; A.S.A. 1947, § 61-126.

28-10-104. This was originally a reserved section, because Section 4 of the Uniform Simultaneous Death Act (U.L.A.), which provides for the distribution of community property, was not enacted by Acts 1941, No. 15.

28-10-105. Acts 1941, No. 15, § 4; A.S.A. 1947, § 61-127.

28-10-106. Acts 1941, No. 15, § 5; A.S.A. 1947, § 61-127n.

28-10-107. Acts 1941, No. 15, § 6; 1959, No. 203, § 3; A.S.A. 1947, § 61-128.

28-10-108. Acts 1941, No. 15, § 7; A.S.A. 1947, § 61-129.

28-10-109. Acts 1941, No. 15, § 8; A.S.A. 1947, § 61-130.

28-10-110. Acts 1941, No. 15, § 9; A.S.A. 1947, § 61-130n.

28-10-111. Acts 1941, No. 15, § 10; A.S.A. 1947, § 61-130n.

28-10-112. This was originally a reserved section, because Section 11 of the Uniform Simultaneous Death Act (U.L.A.), which is an effective date provision, was not enacted by Acts 1941, No. 15.

Subchapter 2 — Uniform Simultaneous Death Act (2005)

Effective Dates. Acts 2005, No. 74, § 1 provided: “Effective date.

“(a) This subchapter takes effect January 1, 2006.

“(b) On the effective date of this subchapter:

“(1) an act done before the effective date in any proceeding and any accrued right is not impaired by this subchapter. If a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time that has commenced to run by the provisions of any statute before the effective date, the provisions remain in force with respect to that right; and

“(2) any rule of construction or presumption provided in this subchapter applies to instruments executed and multiple-party accounts opened before the effective date unless there is a clear indication of a contrary intent.”

Acts 2007, No. 240, § 5: Mar. 9, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the current extremely harsh remedy under the rule against perpetuities that renders a grantor's entire grant void if the grant violates the rule is outdated and should be replaced; that the common law rule fosters litigation at great cost to the citizens of this state because of its many complexities, with often devastating consequences to estates; and that the revision by this act of the common law remedy to permit the likely occurrence that a grant will vest or to permit a court to reform a grant that does not vest in the manner that most likely approximate the transferor's manifested plan is immediately necessary for the good of the citizens of this state. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

28-10-201. Definitions.

In this subchapter:

  1. “Co-owners with right of survivorship” includes joint tenants, tenants by the entireties, and other co-owners of property or accounts held under circumstances that entitle one (1) or more to the whole of the property or account on the death of the other or others.
  2. “Governing instrument” means a deed, will, trust, insurance or annuity policy, account with POD designation, pension, profit-sharing, retirement, or similar benefit plan, instrument creating or exercising a power of appointment or a power of attorney, or a dispositive, appointive, or nominative instrument of any similar type.
  3. “Payor” means a trustee, insurer, business entity, employer, government, governmental agency, subdivision, or instrumentality, or any other person authorized or obligated by law or a governing instrument to make payments.

History. Acts 2005, No. 74, § 1.

RESEARCH REFERENCES

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2005 Arkansas General Assembly, Probate Law, 28 U. Ark. Little Rock L. Rev. 399.

28-10-202. Requirement of survival by 120 hours under probate code.

Except as provided in § 28-10-206, if the title to property, the devolution of property, the right to elect an interest in property, or the right to exempt property, homestead or family allowance depends upon an individual's survivorship of the death of another individual, an individual who is not established by clear and convincing evidence to have survived the other individual by 120 hours is deemed to have predeceased the other individual. This section does not apply if its application would result in a taking of intestate estate by the state.

History. Acts 2005, No. 74, § 1.

28-10-203. Requirement of survival by 120 hours under governing instruments.

Except as provided in § 28-10-206, for purposes of a provision of a governing instrument that relates to an individual surviving an event, including the death of another individual, an individual who is not established by clear and convincing evidence to have survived the event by 120 hours is deemed to have predeceased the event.

History. Acts 2005, No. 74, § 1.

28-10-204. Co-owners with right of survivorship — Requirement of survival by 120 hours.

Except as provided in § 28-10-206, if: (i) it is not established by clear and convincing evidence that one of two co-owners with right of survivorship survived the other co-owner by 120 hours, one-half of the property passes as if one had survived by 120 hours and one-half as if the other had survived by 120 hours and (ii) there are more than two co-owners and it is not established by clear and convincing evidence that at least one of them survived the others by 120 hours, the property passes in the proportion that one bears to the whole number of co-owners.

History. Acts 2005, No. 74, § 1.

28-10-205. Evidence of death or status.

In addition to the rules of evidence in courts of general jurisdiction, the following rules relating to a determination of death and status apply:

  1. Death occurs when an individual has sustained either: (1) irreversible cessation of circulatory and respiratory functions or (2) irreversible cessation of all functions of the entire brain, including the brain stem. A determination of death must be made in accordance with accepted medical standards.
  2. A certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death purportedly occurred is prima facie evidence of the fact, place, date, and time of death and the identity of the decedent.
  3. A certified or authenticated copy of any record or report of a governmental agency, domestic or foreign, that an individual is missing, detained, dead, or alive is prima facie evidence of the status and of the dates, circumstances, and places disclosed by the record or report.
  4. In the absence of prima facie evidence of death under paragraph (2) or (3), the fact of death may be established by clear and convincing evidence, including circumstantial evidence.
  5. An individual whose death is not established under the preceding paragraphs who is absent for a continuous period of five years, during which he or she has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead. His or her death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier.
  6. In the absence of evidence disputing the time of death stipulated on a document described in paragraph (2) or (3), a document described in paragraph (2) or (3) that stipulates a time of death 120 hours or more after the time of death of another individual, however the time of death of the other individual is determined, establishes by clear and convincing evidence that the individual survived the other individual by 120 hours.

History. Acts 2005, No. 74, § 1.

28-10-206. Exceptions.

This subchapter does not apply if:

  1. the governing instrument contains language dealing explicitly with simultaneous deaths or deaths in a common disaster and that language is operable under the facts of the case;
  2. the governing instrument expressly indicates that an individual is not required to survive an event, including the death of another individual, by any specified period or expressly requires the individual to survive the event for a specified period;
  3. the imposition of 120-hour requirement of survival would cause a nonvested property interest or a power of appointment to be invalid under any rule against perpetuities; or
  4. the application of a 120-hour requirement of survival to multiple governing instruments would result in an unintended failure or duplication of a disposition.

History. Acts 2005, No. 74, § 1; 2007, No. 240, § 4.

A.C.R.C. Notes. Section 6 of the Uniform Simultaneous Death Act (ULA 1993) begins as follows:

“Survival by 120 hours is not required if:”

Amendments. The 2007 amendment substituted “any rule against perpetuities” for “the Rule Against Perpetuities” in (3).

28-10-207. Protection of payors, bona fide purchasers, and other third parties — Personal liability of recipient.

    1. A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a person designated in a governing instrument who, under this subchapter, is not entitled to the payment or item of property, or for having taken any other action in good faith reliance on the person's apparent entitlement under the terms of the governing instrument, before the payor or other third party received written notice of a claimed lack of entitlement under this subchapter. A payor or other third party is liable for a payment made or other action taken after the payor or other third party received written notice of a claimed lack of entitlement under this subchapter.
    2. Written notice of a claimed lack of entitlement under paragraph 1 must be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of a claimed lack of entitlement under this subchapter, a payor or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent's estate, or if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence. The court shall hold the funds or item of property and, upon its determination under this subchapter, shall order disbursement in accordance with the determination. Payments, transfers, or deposits made to or with the court discharge the payor or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.
    1. A person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this subchapter to return the payment, item of property, or benefit nor liable under this subchapter for the amount of the payment or the value of the item of property or benefit. But a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this subchapter is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this subchapter.
    2. If this subchapter or any part of this subchapter is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this subchapter, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this subchapter is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this subchapter or part of this subchapter not preempted.

History. Acts 2005, No. 74, § 1.

28-10-208. Uniformity of application and construction.

This subchapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this subchapter among states enacting it.

History. Acts 2005, No. 74, § 1.

28-10-209. Short title.

This subchapter may be cited as the “Uniform Simultaneous Death Act (2005)”.

History. Acts 2005, No. 74, § 1.

28-10-210. [Reserved.]

A.C.R.C. Notes. Section 10 of the Uniform Simultaneous Death Act (ULA 1993), a repealing section, was not adopted in Arkansas.

28-10-211. Severability clause.

If any provision of this subchapter or its application to any persons or circumstance is held invalid, the invalidity does not affect other provisions or applications of the subchapter which can be given effect without the invalid provision or application, and to this end the provisions of this subchapter are severable.

History. Acts 2005, No. 74, § 1.

28-10-212. Effective date.

  1. This subchapter takes effect January 1, 2006.
  2. On the effective date of this subchapter:
    1. an act done before the effective date in any proceeding and any accrued right is not impaired by this subchapter. If a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time that has commenced to run by the provisions of any statute before the effective date, the provisions remain in force with respect to that right; and
    2. any rule of construction or presumption provided in this subchapter applies to instruments executed and multiple-party accounts opened before the effective date unless there is a clear indication of a contrary intent.

History. Acts 2005, No. 74, § 1.

Chapter 11 Dower And Curtesy

Research References

Am. Jur. 25 Am. Jur. 2d, Dower, § 1 et seq.

Ark. L. Rev.

Real Property — Requirement of Seisin as Basis for Award of Dower, 4 Ark. L. Rev. 246.

Real Property — Dower — Vesting of Title to Realty in Heirs of Intestate, 6 Ark. L. Rev. 67.

Medieval Law in the Age of Space: Some “Rules of Property” in Arkansas, 22 Ark. L. Rev. 248.

The New Arkansas Inheritance Laws: A Step into the Present with an Eye to the Future, 23 Ark. L. Rev. 313.

Estate Planning with Disclaimers in Arkansas, 27 Ark. L. Rev. 411.

C.J.S. 28 C.J.S., Dower & Curtesy, § 1 et seq.

U. Ark. Little Rock L.J.

Brantley and Effland, Inheritance, The Share of the Surviving Spouse, and Wills: Arkansas Law and the Uniform Probate Code Compared, 3 U. Ark. Little Rock L.J. 361.

Note, Property — Dower — Specific Performance Is Allowed. Box v. Dudeck, 265 Ark. 165, 578 S.W.2d 567 (1979), 3 U. Ark. Little Rock L.J. 495.

Note, Constitutional Law — Equal Protection — Arkansas' Gender-Based Statutes on Dower, Election, Statutory Allowances, and Homestead Are Unconstitutional, Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981); Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372, 18 A.L.R.4th 903 (1981), 4 U. Ark. Little Rock L.J. 361.

Legislative Survey, Decedents' Estates, 4 U. Ark. Little Rock L.J. 591.

Survey of Arkansas Law, Decedents' Estates, 5 U. Ark. Little Rock L.J. 135.

Cathey, The Real Estate Installment Sale Contract: Its Drafting, Use, Enforcement, and Consequences, 5 U. Ark. Little Rock L.J. 229.

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Subchapter 1 — General Provisions

Effective Dates. Acts 1981, No. 714, § 75: Mar. 25, 1981. Emergency clause provided: “It has been found and is declared by the General Assembly of Arkansas that existing law relating to such matters as homestead, dower, curtesy, statutory allowances payable from a decedent's estate, and the right of a surviving spouse to take against the will of a decedent, do not in all circumstances provide for equal treatment between the sexes, that the constitutionality of such existing law has been drawn into question by decisions of the United States Supreme Court and the Arkansas Supreme Court, and that there is an urgent need to insure that the law provides equality in the property rights and interests of married persons. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from the date of its approval.”

28-11-101. Definition.

As used in this chapter, “endowed” means invested and shall apply both to dower and curtesy.

History. Rev. Stat., ch. 52, § 1; C. & M. Dig., § 3514; Pope's Dig., § 4396; Acts 1981, No. 714, § 18; A.S.A. 1947, § 61-201.

Research References

Ark. L. Rev.

Comment, Arkansas Marriage: A Partnership Between a Husband and Wife, or a Safety Net for Support?, 61 Ark. L. Rev. 735.

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Case Notes

Cited: United States v. 339.77 Acres of Land, 240 F. Supp. 545 (W.D. Ark. 1965); Owen v. Owen, 267 Ark. 532, 592 S.W.2d 120 (1980); Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981).

28-11-102. Descent of land upon death of spouse having dower or curtesy interest.

At the death of any surviving spouse who has dower or curtesy for life in land, the property shall descend in accordance with the will of the first deceased spouse or, if the first spouse died intestate, then to descend in accordance with the law for the distribution of intestates' estates.

History. Rev. Stat., ch. 52, § 22; C. & M. Dig., § 3537; Pope's Dig., § 4423; Acts 1981, No. 714, § 39; A.S.A. 1947, § 61-227.

Research References

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Subchapter 2 — Entitlement Generally

Effective Dates. Acts 1935, No. 84, § 3: approved Feb. 26, 1935. Emergency clause provided: “Because certain Federal and State lending agencies are finding it difficult to place a construction on the meaning of Act 315 of 1923 and, therefore, it creating some confusion relative to the usage of this act and, thereby prohibiting numerous citizens from securing loans because of such defects in their titles; this act, therefore, being necessary for the immediate preservation of the public peace, health and safety; an emergency is hereby declared to exist and this act shall take effect and be in full force from and after its passage.”

Acts 1981, No. 714, § 75: Mar. 25, 1981. Emergency clause provided: “It has been found and is declared by the General Assembly of Arkansas that existing law relating to such matters as homestead, dower, curtesy, statutory allowances payable from a decedent's estate, and the right of a surviving spouse to take against the will of a decedent, do not in all circumstances provide for equal treatment between the sexes, that the constitutionality of such existing law has been drawn into question by decisions of the United States Supreme Court and the Arkansas Supreme Court, and that there is an urgent need to insure that the law provides equality in the property rights and interests of married persons. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from the date of its approval.”

Research References

U. Ark. Little Rock L.J.

Arkansas Law Survey, Looney, Decedents' Estates, 8 U. Ark. Little Rock L.J. 139.

28-11-201. Actions of spouse not to bar right to dower or curtesy.

  1. No act, deed, or conveyance executed or performed by one (1) spouse without the assent of the other spouse, evinced by acknowledgment in the manner required by law, shall pass the estate of dower or curtesy.
  2. No judgment, default, covin, or crime of one (1) spouse shall prejudice the right of the other spouse to curtesy or dower, or preclude either spouse from the recovery thereof, if otherwise entitled thereto.

History. Rev. Stat., ch. 52, § 16; C. & M. Dig., § 3529; Pope's Dig., § 4413; Acts 1981, No. 714, § 25; A.S.A. 1947, § 61-208.

Publisher's Notes. Acts 1939, No. 313, § 2, as amended by Acts 1943, No. 69, § 1, which were repealed by Acts 1981, No. 714, § 41, provided in part that a married woman could freely dispose of any property which she owned in her own name and of her own separate estate without her husband joining in the deed, conveyance, etc., affecting the title to the property. Acts 1943, No. 69, § 2, validated all sales and conveyances made theretofore by any married woman of such property whether or not her husband joined in the conveyance or act of sale.

Research References

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Case Notes

Constitutionality.

The operation of the dower provisions under §§ 28-11-301, 28-11-307, and this section which gave the wife the right of dower which could not be defeated by a husband's conveyance and the comparable curtesy statutes under former §§ 61-228 (repealed) and 61-229 (repealed) which allowed the wife to defeat curtesy by conveyance provided for dissimilar treatment for men and women similarly situated, and since there was no justification for the discrimination, § 28-11-307 and this section were held unconstitutional. Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981) (decision prior to 1981 amendment).

This section was a gender based statute which did not serve an important governmental function; thus it was held unconstitutional, since it violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981), overruled in part, Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983) (decision prior to 1981 amendment).

Right of Dower.

A spouse has the right to make a will which excludes the surviving spouse or provides for a bequest or devise in lieu of dower; that a surviving spouse may take against a will prevents any injustice that might result from the spouse's exercise of that right. Estate of Dahlmann v. Estate of Dahlmann, 282 Ark. 296, 668 S.W.2d 520 (1984).

The making of a will which excludes the surviving spouse is not an “act” which impermissibly defeats the right of dower under this section. Estate of Dahlmann v. Estate of Dahlmann, 282 Ark. 296, 668 S.W.2d 520 (1984).

28-11-202. Surviving spouse of alien entitled to dower or curtesy.

The surviving spouse of an alien shall be entitled to dower in the estate of the deceased spouse in the same manner as if the alien had been a native-born citizen of this state.

History. Acts 1939, No. 313, § 4; A.S.A. 1947, § 61-231.

Cross References. Aliens' right to receive property, § 18-11-101.

28-11-203. Right of dower and curtesy barred.

  1. The inchoate right of dower or curtesy of any spouse in real property in the State of Arkansas is barred in all cases when or where the other spouse has been barred of title or of any interest in the property for seven (7) years or more and also in real property or interest conveyed by the husband or wife but not signed by the other spouse when the conveyance is made or has been made for a period of seven (7) years or more.
    1. This section shall affect the inchoate right of dower and curtesy of a spouse in real property in this state only where or when the husband or wife has been barred of title for seven (7) years or more, or when a conveyance by the husband or wife, without the signature of the other spouse, has been made for a period of seven (7) years or more.
    2. However, this section shall not apply unless the instrument of conveyance by the husband or wife has been of record for at least seven (7) years.

History. Acts 1935, No. 84, § 1; Pope's Dig., §§ 4414, 8919; Acts 1981, No. 714, § 38; A.S.A. 1947, § 61-226.

Research References

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Case Notes

Constitutionality.

Since the wife's inchoate right of dower was not a vested right, it was not protected from legislative impairment by guaranties for protection of property or rights of citizens. Skelly Oil Co. v. Murphy, 180 Ark. 1023, 24 S.W.2d 314 (1930) (decision under prior law).

In General.

Where husband, pursuant to contract, sold land to which he held legal title and wife refused to release her inchoate right of dower, decree protecting dower rights of wife would be conditioned upon husband predeceasing her within seven years from date of decree. Fletcher v. Felker, 97 F. Supp. 755 (W.D. Ark. 1951).

Contract to Convey Land.

A mere contract to convey some land, signed only by the husband, does not cause this section to become operative. Smith v. Smith, 268 Ark. 993, 597 S.W.2d 848 (Ct. App. 1980).

Mortgage Foreclosures.

This section applies to actions to recover land and does not govern suits to foreclose mortgages. White v. White, 198 Ark. 740, 131 S.W.2d 4 (1939).

Sale Under Execution.

Sale of husband's land during his life-time under execution against him did not defeat the claim of his widow, within seven years of his death, to her dower interest therein. Roetzel v. Beal, 196 Ark. 5, 116 S.W.2d 591 (1938).

28-11-204. Murder of spouse — Effect.

  1. Whenever a spouse shall kill or slay his or her spouse and the killing or slaying would under the law constitute murder, either in the first or second degree, and that spouse shall be convicted of murder for the killing or slaying, in either the first or second degree, the one so convicted shall not be endowed in the real or personal estate of the decedent spouse so killed or slain.
  2. In the event that a decedent spouse under this section dies without a will, the descendents of the one so convicted shall not benefit from the estate of the decedent spouse unless the descendents of the spouse that committed the murder are also descendants of the decedent spouse.

History. Acts 1939, No. 313, § 3; A.S.A. 1947, § 61-230; Acts 2013, No. 1019, § 1.

Amendments. The 2013 amendment added (b).

Research References

Ark. L. Rev.

Wills — Descent and Distribution — Right of Felonious Killer to Participate in Estate of Person Killed, 7 Ark. L. Rev. 416.

Decedent's Estates: Share of Murderer and His Heirs in Victim's Estate, 24 Ark. L. Rev. 348.

Notes, Estate of Sargent v. Benton State Bank: Judicial Limitations on a Slayer's Right to Inherit from the Decedent, 38 Ark. L. Rev. 653.

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Case Notes

Applicability.

This section was intended to apply only to dower and curtesy and does not apply to a widow's claim for statutory allowance where she is convicted of the murder of her husband. However, apart from this section, the principle that one who wrongfully kills another will not be permitted to share in the other's estate or otherwise profit from the crime will apply to such a situation. Smith v. Dean, 226 Ark. 438, 290 S.W.2d 439 (1956), overruled, Zinger v. Terrell, 336 Ark. 423, 985 S.W.2d 737 (Ark. 1999).

This section was not applicable where the insured and his beneficiary wife were found together dead of gunshot wounds without evidence as to who died first or that the insured had killed his wife and then committed suicide. Belt v. Baser, 238 Ark. 644, 383 S.W.2d 657 (1964).

Evidence.

Where the husband was living with his wife at the time of her death and there is no evidence either that he had anything to do with the death of his wife or that he had abandoned her, a court commits error in holding that the husband forfeited his right of curtesy in his wife's estate. Phipps v. Wilson, 251 Ark. 377, 472 S.W.2d 929 (1971).

Necessity for Conviction.

Where a wife committed suicide shortly after killing her husband and consequently was not tried or convicted, this section did not exclude her heirs from asserting dower in her husband's property. Barnes v. Cooper, 204 Ark. 118, 161 S.W.2d 8 (1942).

Rule on Profiting from Crime.

One who wrongfully kills another is not permitted to profit by the crime; the purpose underlying this general rule is to deter such conduct. However, the rule is inapplicable where the wrongdoer stands to gain nothing by his actions, as where he kills himself too. Luecke v. Mercantile Bank, 286 Ark. 304, 691 S.W.2d 843 (1985).

Cited: Belt v. Baser, 238 Ark. 644, 383 S.W.2d 657 (1964); Wright v. Wright, 248 Ark. 105, 449 S.W.2d 952 (1970).

Subchapter 3 — Extent of Interest

Cross References. Life interests and remainders, determination of present value, § 18-2-101 et seq.

Effective Dates. Acts 1859, No. 231, § 1: effective on passage.

Acts 1891, No. 65, § 2: effective on passage.

Acts 1945, No. 143, § 4: Mar. 2, 1945. Emergency clause provided: “Due to the fact that a widow's dower has never been defined as provided by this act and many widows are being deprived of their dower rights in the sale of timber, oil, gas or mineral rights, an emergency is hereby declared to exist and this act shall be in full force and effect from and after the date of its passage and approval.”

Acts 1981, No. 714, § 75: Mar. 25, 1981. Emergency clause provided: “It has been found and is declared by the General Assembly of Arkansas that existing law relating to such matters as homestead, dower, curtesy, statutory allowances payable from a decedent's estate, and the right of a surviving spouse to take against the will of a decedent, do not in all circumstances provide for equal treatment between the sexes, that the constitutionality of such existing law has been drawn into question by decisions of the United States Supreme Court and the Arkansas Supreme Court, and that there is an urgent need to insure that the law provides equality in the property rights and interests of married persons. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from the date of its approval.”

Research References

U. Ark. Little Rock L.J.

Averill & Brantley, A Comparison of Arkansas's Current Law Concerning Succession, Wills, and Other Donative Transfers with Article II of the 1990 Uniform Probate Code, 17 U. Ark. Little Rock L.J. 631.

28-11-301. Land generally.

  1. If a person dies leaving a surviving spouse and a child or children, the surviving spouse shall be endowed of the third part of all the lands for life whereof his or her spouse was seized, of an estate of inheritance, at any time during the marriage, unless the endowment shall have been relinquished in legal form.
  2. A person shall have a dower or curtesy right in lands sold in the lifetime of his or her spouse without consent of the spouse in legal form against all creditors of the estate.

History. Rev. Stat., ch. 52, §§ 1, 28; C. & M. Dig., §§ 3514, 3543; Pope's Dig., §§ 4396, 4429; Acts 1981, No. 714, §§ 18, 24; A.S.A. 1947, §§ 61-201, 61-207.

Research References

Ark. L. Rev.

Comment, Arkansas Marriage: A Partnership Between a Husband and Wife, or a Safety Net for Support?, 61 Ark. L. Rev. 735.

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Case Notes

Constitutionality.

The operation of the dower provisions under subsection (b) of this section, § 28-11-201, and § 28-11-307 which gave the wife the right of dower which could not be defeated by a husband's conveyance and the comparable curtesy statutes under former §§ 61-228 (repealed) and 61-229 (repealed) which allowed the wife to defeat curtesy by conveyance provided for dissimilar treatment for men and women similarly situated and there was no justification for the discrimination. Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981) (decision prior to 1981 amendment).

Subsection (a) of this section which was gender based and did not serve an important governmental function was held unconstitutional as a violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution. Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981), overruled in part, Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983); Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983) (decision prior to 1981 amendment).

Subsection (b) of this section, which gave a wife a dower interest in property which her husband may have disposed of during the marriage without her consent, but did not give the husband equal rights to her property, was a gender based statute which did not serve an important governmental function and thus was unconstitutional since it violated the equal protection clause of the Fourteenth Amendment of the United States Constitution. Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981), overruled in part, Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983) (decision prior to 1981 amendment).

Where decedent died intestate, widow's claim of dower to a part of his real property under subsection (a) of this section was the exact equivalent of the rights of curtesy under former § 61-228 (repealed), which he could have enjoyed had he survived his wife; hence, there was no impingement of the equal protection clause, as there was no discrimination in favor of either sex where the deceased spouse died intestate. Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983) (decision prior to 1981 amendment).

The statement, in Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372, 18 A.L.R.4th 903 (1981), that subsection (a) of this section was unconstitutional was too broad and extended beyond the holding reached in Stokes, supra, which was that where a husband died testate the wife could not take dower against the will, there being no concomitant benefit given to husbands under the law the statement should have been qualified by the provisional wording that the statute was unconstitutional “as applied in this case.” Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983) (decision prior to 1981 amendment).

Dower and curtesy statutes, as they existed prior to 1981 amendments, were valid in cases of intestacy because there was no difference between the dower of a surviving wife and the curtesy of a surviving husband. Dent v. Rose, 281 Ark. 42, 661 S.W.2d 361 (1983) (decision prior to 1981 amendment).

Alienation of Inchoate Right.

A widow may make an equitable transfer of her unassigned dower. Griffin v. Dunn, 79 Ark. 408, 96 S.W. 190 (1906); Beauchamp v. Bertig, 90 Ark. 351, 119 S.W. 75 (1909).

Unassigned dower is not alienable at law. Flowers v. Flowers, 84 Ark. 557, 106 S.W. 949 (1907).

Bigamous Marriage.

In the absence of divorce, a married woman is entitled to dower, although she has contracted a second and bigamous marriage. Grober v. Clements, 71 Ark. 565, 76 S.W. 555 (1903).

Conflict of Laws.

The right to dower is governed by the law of the place where the lands are situated. Apperson v. Bolton, 29 Ark. 418 (1874).

Conveyance by Husband.

Dower is not barred by a conveyance by the husband. Smith v. Lamb, 87 Ark. 344, 112 S.W. 884 (1908).

Inchoate dower interest held by defendant's wife in non-homestead property did not preclude a finding that defendant could have obtained enough funds from sale of the property to pay legal fees in a criminal case; defendant was therefore required to reimburse the government for legal services provided under the Criminal Justice Act, 18 U.S.C.S. § 3006A. United States v. Fincher, 593 F.3d 702 (8th Cir. 2010).

Divorce.

A divorce from the bond of matrimony bars the wife's right of dower. Wood v. Wood, 59 Ark. 441, 27 S.W. 641 (1894); Kendall v. Crenshaw, 116 Ark. 427, 173 S.W. 393 (1915); Taylor v. Taylor, 153 Ark. 206, 240 S.W. 6 (1922); Moore v. Warren, 160 Ark. 629, 255 S.W. 306 (1923).

Dower Interest.

Ruling in favor of a corporation that the decedent's wife did not hold title to the land or mineral rights at issue was proper because she possessed only a dower interest at the time of the 1986 deed under subsection (a) of this section and the after-acquired title doctrine barred her from asserting a claim to the property. At most, she had only a dower interest in the oil, gas, and mineral rights reserved by her husband in the 1986 deed and even if the deed had specifically limited her conveyance to her actual interest at the time, that interest was inchoate when the deed was executed. Evans v. SEECO, Inc., 2011 Ark. App. 739 (2011).

Federal Estate Tax.

Widow's dower in real estate is not to be reduced by federal estate tax. Thompson v. Union & Mercantile Trust Co., 164 Ark. 411, 262 S.W. 324 (1924), superseded by statute as stated in, Terral v. Terral, 212 Ark. 221, 205 S.W.2d 198 (1947).

Improvements.

A widow is not entitled to dower in improvements made by a purchaser from her husband. Welch v. McKenzie, 66 Ark. 251, 50 S.W. 505 (1899).

A widow is not entitled to the value of improvements made upon lands sold without her consent. Welch v. McKenzie, 66 Ark. 251, 50 S.W. 505 (1899).

Judicial Sale.

A widow's dower is not cut off by a probate sale for the payment of debts. Livingston v. Cochran, 33 Ark. 294 (1878).

The probate court cannot order a sale of any part of the lands free of dower. Webb v. Smith, 40 Ark. 17 (1882).

The forfeiture of land for taxes and the sale by the state after the time for redemption expires extinguishes the widow's right to dower. McWhirter v. Roberts, 40 Ark. 283 (1883).

Dower is not barred by a judicial sale, though the widow is a party to the suit, unless her dower was put in issue. Fourche River Lumber Co. v. Walker, 96 Ark. 540, 132 S.W. 451 (1910).

Lands Subject to Dower.

There is no dower in lands held in joint tenancy. Cockrill v. Armstrong, 31 Ark. 580 (1876).

If a trustee has an interest in the trust estate, the wife is entitled to dower if it can be assigned without prejudice to the trust estate. Cockrill v. Armstrong, 31 Ark. 580 (1876).

Where the value of a widow's dower in all of her husband's lots is set apart to her in part of them, she has no claim to dower out of the remainder. Rockafellow v. Peay, 40 Ark. 69 (1882).

A widow is entitled to dower in estate pur autre vie as personalty. Stull v. Graham, 60 Ark. 461, 31 S.W. 46 (1895).

A widow is not entitled to dower in lands held in trust merely. McKneely v. Terry, 61 Ark. 527, 33 S.W. 953 (1896).

An estate in entirety is not subject to dower. Roulston v. Hall, 66 Ark. 305, 50 S.W. 690 (1899).

Land under lease and in tenant's possession at time of landlord's death is subject to widow's dower interest under rules relating to real property and not those relating to personalty. Brack v. Coburn, 210 Ark. 334, 196 S.W.2d 230 (1946).

Mortgaged Lands.

The widow of a deceased mortgagor is not barred of dower in the mortgaged lands by a decree of foreclosure, though she was a party to the suit, unless her right to dower was put in issue. McWhirter v. Roberts, 40 Ark. 283 (1883).

Where a wife joins her husband in a mortgage on land relinquishing her dower therein, after his death she only has dower interest subject to the mortgage, and has no right to compel the administrator to pay off the mortgage with the personal estate. Hewitt v. Cox, 55 Ark. 225, 15 S.W. 1026 (1891).

A mortgage upon a homestead accepted as security for an antecedent debt of the husband in consideration of which the time is extended for a definite period is valid to convey the wife's dower although the wife was induced to execute it by the misrepresentations of the officer who took her acknowledgment that mortgage did not cover the homestead where the mortgagee had no notice thereof. Hill v. Yarborough, 62 Ark. 320, 35 S.W. 433 (1896).

Dower is not barred by a mortgage in which wife did not join. Lowe v. Walker, 77 Ark. 103, 91 S.W. 22 (1905).

A widow's rights in land are subject to a mortgage existing at the time of her marriage, but an increase of indebtedness secured by the mortgage made after the marriage and in which she does not join would be void as against her. Harris v. Mosley, 195 Ark. 62, 111 S.W.2d 563 (1937).

Nature of Dower.

A widow has dower for life of one-third of the real estate owned by her husband at any time during coverture, whether unsold at his death or sold or alienated by him without her consent in legal form, and one-third of all personal estate owned by him at his death, including money or cash on hand and choses in action, absolutely, unless he leaves no children, in which case her interest is one-half of each part instead of one-third. And this dower in each part she takes by way of a lien, created by and at the time of marriage, and paramount to creditors and purchasers, and without any regard to his debts. Her dower in each part is carved out of the specific estate of which he was possessed; and, if she has been deprived of it, she can follow it wherever it may be found, and subject it to her lien, unless by her own laches, she has abandoned or waived the right. Hill's Adm'rs v. Mitchell, 5 Ark. (5 Pike) 608 (1844).

While dower remains unascertained, and until there has been an actual admeasurement by metes and bounds, it is a mere potential interest, amounting to nothing more than a chose in action, and is not subject to seizure and sale by execution at law. Pennington v. Yell, 11 Ark. 212 (1850).

A widow takes dower under law existing at husband's death. Hatcher v. Buford, 60 Ark. 169, 29 S.W. 641 (1895); Sanders v. Taylor, 193 Ark. 1095, 104 S.W.2d 797 (1937).

Dower must be carved out of specific property. Johnson v. Johnson, 92 Ark. 292, 122 S.W. 656 (1909).

A widow does not hold as heir of her husband her dower interest in his lands. Barton v. Wilson, 116 Ark. 400, 172 S.W. 1032 (Ark. 1915).

The legislature may change or abolish the inchoate right of dower, it being not a vested right. Skelly Oil Co. v. Murphy, 180 Ark. 1023, 24 S.W.2d 314 (1930).

Until her husband's death a wife's right of dower is inchoate, that is, it is contingent upon his death during her lifetime. It is not an interest in her husband's property as may be conveyed by her and may only be relinquished by her to her husband's grantee in the manner and form as provided by statute. Le Croy v. Cook, 211 Ark. 966, 204 S.W.2d 173 (1947).

A widow's dower is not an estate in itself but, when assigned, it becomes a life estate in the lands assigned, prior to which it has attached to nothing, although it is a right vested in the widow. Bradham v. United States, 287 F. Supp. 10 (W.D. Ark. 1968).

Oil and Gas Interests.

Where a wife fails to join in deed conveying an interest in oil and gas under certain land, one-third of the proceeds of the oil drawn therefrom is properly impounded to protect her inchoate right of dower. B.H. & M. Oil Co. v. Graves, 182 Ark. 659, 32 S.W.2d 630 (1930).

Partnership Property.

A widow is not entitled to dower in partnership property. Drewry v. Montgomery, 28 Ark. 256 (1873); Welch v. McKenzie, 66 Ark. 251, 50 S.W. 505 (1899).

A widow takes dower in the surplus of partnership real estate, after the payment of partnership debts, as in real estate, for life only, and not absolutely as in personalty, unless there is an agreement between the partners for a conversion and sale of the real estate after the partnership affairs are closed, in which event she takes as in personalty. Lenow v. Fones, 48 Ark. 557, 4 S.W. 56 (1887).

Priority Over Creditors.

When dower is once fixed, it is paramount to the right of creditors and purchasers, and no act of the husband, without his wife's consent, can divest her of it. Tate v. Jay, 31 Ark. 576 (1876).

Trial court's decision reducing a surviving spouses dower interest, received pursuant to the terms of this section and § 28-11-305, for certain claims against the estate under § 28-53-111 was reversed because the claim for a commission was not a debt that the spouse owed to the estate and the claim based on a note was a contingent claim still subject to unasserted defenses available to the spouse. Stevens v. Heritage Bank, 104 Ark. App. 56, 289 S.W.3d 147 (2008).

Proceeds of Land Sold.

A widow is not entitled to dower in the proceeds of land sold by an administrator, but in the specific lands. Tiner v. Christian, 27 Ark. 306 (1871).

Where testator's property at death consists of household goods and land, his will directs the land to be sold and converted into cash, and widow elects to take against the will and consents to the sale of the land, her dower in the realty is limited to a life interest in the proceeds from the sale of the land. Atkinson v. Van Echaute, 236 Ark. 423, 366 S.W.2d 273 (1963).

Redemption of Lands.

Where lands redeemed with money of insolvent estate are assigned as dower, a widow must pay her part of sum paid to redeem. Salinger v. Black, 68 Ark. 449, 60 S.W. 229 (1900).

Relinquishment.

A woman cannot relinquish dower in favor of her husband. Countz v. Markling, 30 Ark. 17 (1875); Pillow v. Wade, 31 Ark. 678 (1877).

An infant married woman cannot release dower. Watson v. Billings, 38 Ark. 278 (1881).

A wife's relinquishment of dower is inoperative when the husband's deed was ineffectual. Smith v. Howell, 53 Ark. 279, 13 S.W. 929 (1890).

A mortgage upon a homestead accepted as security for an antecedent debt of the husband in consideration of which the time was extended for a definite period was valid to convey the wife's dower although the wife was induced to execute it by misrepresentations of the officer who took her acknowledgment that the mortgage did not cover the homestead where the mortgagee had no notice thereof. Hill v. Yarborough, 62 Ark. 320, 35 S.W. 433 (1896).

Statutory mode of relinquishing is exclusive. Bowers v. Hutchinson, 67 Ark. 15, 53 S.W. 399 (1899).

Where a widow, in pursuance of a family agreement, conveys her homestead and dower interests in certain lands of her husband to one of his heirs, she will be held to have abandoned her rights therein. Felton v. Brown, 102 Ark. 658, 145 S.W. 552 (1912).

Sale Under Execution.

Sale of husband's land during his life-time, under execution against him, does not defeat the claim of his widow, within seven years of his death, to her dower interest therein. Roetzel v. Beal, 196 Ark. 5, 116 S.W.2d 591 (1938).

Seizen.

Seizen need not be a legal title as an equitable estate is sufficient. Kirby v. Vantrece, 26 Ark. 368 (1870); Tate v. Jay, 31 Ark. 576 (1876); Hewitt v. Cox, 55 Ark. 225, 15 S.W. 1026 (1891); Spalding v. Haley, 101 Ark. 296, 142 S.W. 172 (1911).

Where a husband died intestate and dower was assigned to his widow in certain lands and subsequently upon her remarriage her second husband purchased the reversion in the dower lands and died before the wife, such reversionary interest was not sufficient to give the second husband “seizen” in the land so as to support, after the death of the second husband, the widow's claim to dower in such reversionary interest. McGuire v. Cook, 98 Ark. 118, 135 S.W. 840 (1911).

The husband must have been seized in possession during coverture. McGuire v. Cook, 98 Ark. 118, 135 S.W. 840 (1911).

A tenant's widow cannot claim any dower interest in the land for the reason her husband had no title and was not seized of an estate of inheritance in the land. Kilpatrick v. Kilpatrick, 204 Ark. 452, 162 S.W.2d 897 (1942).

The requirements of seizen are the same under this section as under § 28-11-307. Pfaff v. Heizman, 218 Ark. 201, 235 S.W.2d 551, 23 A.L.R.2d 957 (1951).

Cited: United States v. 339.77 Acres of Land, 240 F. Supp. 545 (W.D. Ark. 1965); Owen v. Owen, 267 Ark. 532, 592 S.W.2d 120 (1980); Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981).

28-11-302. Lands exchanged — Election.

If a person seized of an estate of inheritance in lands exchanges it for other lands, the surviving spouse shall not have curtesy or dower of both, but shall make an election to curtesy or dower in the lands given or of those taken in exchange. If the election is not evinced by the commencement of proceedings to recover curtesy or dower of the lands given in exchange within one (1) year after the death of the deceased spouse, the surviving spouse shall be deemed to have elected to take the curtesy or dower of the lands received in exchange.

History. Rev. Stat., ch. 52, § 3; C. & M. Dig., § 3516; Pope's Dig., § 4400; Acts 1981, No. 714, § 26; A.S.A. 1947, § 61-209.

28-11-303. Mortgaged land.

  1. When a person seized of an estate of inheritance in land shall have executed a mortgage of the estate before marriage, the surviving spouse, nevertheless, shall be entitled to dower or curtesy out of the lands mortgaged as against every person except the mortgagee and those claiming under him or her.
    1. When a person shall purchase lands during coverture and shall mortgage his or her estate in the lands to secure the payment of the purchase money, the surviving spouse shall not be entitled to dower or curtesy out of the lands as against the mortgagee or those claiming under him or her, although he or she shall not have united in the mortgage. However, he or she shall be entitled to dower or curtesy as against all other persons.
    2. When, in such a case, the mortgagee or those claiming under him or her, shall, after the death of the mortgagor, cause the land mortgaged to be sold, either under a power contained in the mortgage or by virtue of the decree of a circuit court and any surplus shall remain after the payment of the moneys due on the mortgage and the costs and charges of sale, then the surviving spouse shall be entitled to the interest or income of one-third (1/3) part of the surplus for life, as his or her curtesy or dower.
  2. A surviving spouse shall not be endowed of lands conveyed to the deceased spouse by way of mortgage unless the deceased spouse has acquired an absolute estate therein during the marriage.

History. Rev. Stat., ch. 52, §§ 4-7; C. & M. Dig., §§ 3517-3520; Pope's Dig., §§ 4401-4404; Acts 1981, No. 714, §§ 27-30; A.S.A. 1947, §§ 61-210 — 61-213.

Research References

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Case Notes

Constitutionality.

This section, which gave a widow a dower interest in property which was mortgaged by her husband before the mortgage, but did not give this right to the husband, was gender based and served no important governmental function; thus, it was held unconstitutional since it violated the equal protection clause of the Fourteenth Amendment to the United States Constitution. Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981), overruled in part, Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983) (decision prior to 1981 amendment).

Increase of Indebtedness.

A widow's rights in land are subject to mortgage existing at the time of her marriage, but an increase of indebtedness secured by the mortgage made after her marriage and in which she did not join would be void as against her. Harris v. Mosley, 195 Ark. 62, 111 S.W.2d 563 (1937).

Waiver of Rights.

Where a surviving husband waited until real estate was sold and debts paid before asserting his curtesy right therein, he waived his curtesy rights in the real estate, but was still entitled to curtesy in the net proceeds of the sale. Quick v. Davidson, 261 Ark. 38, 545 S.W.2d 917 (1977).

Cited: Birnie v. Main, 29 Ark. 591 (1874); Bothe v. Gleason, 126 Ark. 313, 190 S.W. 562 (1916); Corcorren v. Sharum, 141 Ark. 572, 217 S.W. 803 (1920); Owen v. Owen, 267 Ark. 532, 592 S.W.2d 120 (1980); Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981).

28-11-304. Sale of timber, oil, gas, or mineral leases.

  1. If a person dies leaving a surviving spouse and a child or children, the surviving spouse shall be entitled, absolutely and in his or her own right, to one-third (1/3) of all money received from the sale of timber, oil and gas or other mineral leases, oil and gas or other mineral royalty or mineral sales, and to one-third (1/3) of the money derived from any and all royalty run to the credit of the royalty owners from any oil or gas well or to royalty accruing from the production of other mines or minerals in lands in which he or she has a dower, curtesy, or homestead interest, unless the surviving spouse shall have relinquished same in legal form.
    1. All persons, firms, partnerships, or corporations now engaged in the production of oil and gas or other minerals shall immediately withhold payments to the royalty interests until the rights of the surviving spouse are determined, as defined by this section, and shall thereafter pay the surviving spouse separately his or her one-third (1/3) part of all royalty accruing to the royalty interest unless he or she shall have relinquished the royalty interest in legal form.
    2. In the sale of timber, the purchaser shall pay one-third (1/3) of the purchase price directly to the surviving spouse or his or her agent or attorney at the time of the execution or delivery of the deed.

History. Acts 1945, No. 143, §§ 1, 2; 1963, No. 68, § 1; 1981, No. 714, §§ 21, 22; A.S.A. 1947, §§ 61-204, 61-205.

Research References

U. Ark. Little Rock L.J.

Wright, The Arkansas Law of Oil and Gas, 9 U. Ark. Little Rock L.J. 223.

28-11-305. Personalty.

If a person dies leaving a surviving spouse and a child or children, the surviving spouse shall be entitled, as part of dower or curtesy in his or her own right, to one-third (1/3) part of the personal estate whereof the deceased spouse died seized or possessed.

History. Rev. Stat., ch. 52, § 20; C. & M. Dig., § 3535; Pope's Dig., § 4420; Acts 1981, No. 714, § 19; A.S.A. 1947, § 61-202.

Research References

Ark. L. Rev.

Federal Estate Tax: Surviving Spouse Support Allowances and the Marital Deduction, 21 Ark. L. Rev. 131.

Comment, Arkansas Marriage: A Partnership Between a Husband and Wife, or a Safety Net for Support?, 61 Ark. L. Rev. 735.

U. Ark. Little Rock L.J.

Arkansas Law Survey, Looney, Decedents' Estates, 8 U. Ark. Little Rock L.J. 139.

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Case Notes

Constitutionality.

This section, which allowed a widow to take dower in bonds, bills, notes, books, accounts, and evidence of debt which her husband owned at the time of his death, but did not contain a similar provision for the husband, was a gender based statute which had no important governmental function and thus violated the equal protection clause of the Fourteenth Amendment of the United States Constitution. Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981), overruled in part, Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983) (decision prior to 1981 amendment). But see Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983).

The statement, in Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372, 18 A.L.R.4th 903 (1981), that § 28-11-301 was unconstitutional was too broad and extended beyond the holding reached in Stokes, supra, which was that where a husband died testate the wife could not take dower against the will, there being no concomitant benefit given to husbands under the law; the statement should have been qualified by the provisional wording that the statute was unconstitutional “as applied in this case.” Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983) (decision prior to 1981 amendment).

Choses in Action.

Prior to enactment of § 28-11-306, it was held that a widow was not entitled to dower in the choses in action of her deceased husband. Hill's Adm'rs v. Mitchell, 5 Ark. (5 Pike) 608 (1844); Mulhollan v. Thompson, 13 Ark. 232 (1853).

Rejection of the husband's claim that he had a curtesy interest in a settlement award involving his deceased wife was appropriate because the wife never possessed a chose in action since there was no cause of action for wrongful death created in any individual beneficiary under the wrongful-death statute. The circuit court found that she was possessed of a chose in action, which was incorrect as a matter of law; nevertheless, the circuit court reached the right result in denying the husband's claim under the dower and curtesy statute. Bridges v. Shields, 2011 Ark. 448, 385 S.W.3d 176 (2011).

Conflict of Laws.

A widow entitled to dower in the equity of redemption of pledged chattels and dower in chattels is governed by the law of the husband's domicile, irrespective of the situs of the chattel. Gibson v. Dowell, 42 Ark. 164 (1883).

Disposal Free of Dower.

A husband can dispose of personalty free of the wife's dower by sale or mortgage. Street v. Saunders, 27 Ark. 554 (1872); McClure v. Owens, 32 Ark. 443 (1877).

Execution Against Property.

The placing of an execution in the hands of the sheriff in the lifetime of a husband does not cut off the widow's right of dower in his goods, unless the officer proceeds to make a levy before his death. James v. Marcus, 18 Ark. 421 (1857).

Gift Causa Mortis.

A widow is entitled to dower in a gift causa mortis. Hatcher v. Buford, 60 Ark. 169, 29 S.W. 641 (1895).

Inchoate Right of Dower.

A widow's right of dower remains only an inchoate right and is not an estate until the husband's death, the right of dower being only a contingent expectancy during the lifetime of the husband. Mickle v. Mickle, 253 Ark. 663, 488 S.W.2d 45 (1972).

Bankruptcy debtor husband had no curtesy interest to exempt in stock owned by the co-debtor wife on the bankruptcy petition date since the wife, as the sole legal owner, was still living, and the husband's curtesy right had not yet accrued and did not become property of the husband's estate on the filing of the bankruptcy petition. In re Tankersley, 575 B.R. 848 (Bankr. E.D. Ark. 2017).

Bankruptcy debtor wife had no dower interest to exempt in the co-debtor husband's life insurance policy on the filing of the bankruptcy petition since the wife was neither an insured nor a beneficiary under the policy, and thus no interest in the policy became part of the wife's bankruptcy estate. In re Tankersley, 575 B.R. 848 (Bankr. E.D. Ark. 2017).

Land Under Lease.

Where land under lease is in tenant's possession at time of landlord's death, such possession is the possession of the landlord and the interest of the widow of the landlord is governed by the rules of dower in real property and not those relating to personalty. Brack v. Coburn, 210 Ark. 334, 196 S.W.2d 230 (1946).

Law Governing.

The legislature may increase or diminish dower in personal property. Wooton v. Keaton, 168 Ark. 981, 272 S.W. 869 (1925).

The law governing the widow's right of dower is the one existing at the time of the death of the husband and not that existing at the time of the marriage. Sanders v. Taylor, 193 Ark. 1095, 104 S.W.2d 797 (1937).

Prior Liens.

Dower in personalty is reduced by liens created prior to a husband's death. Thompson v. Union & Mercantile Trust Co., 164 Ark. 411, 262 S.W. 324 (1924), superseded by statute as stated in, Terral v. Terral, 212 Ark. 221, 205 S.W.2d 198 (1947).

Right to Dower.

A widow is entitled to one-third out of each kind or class of personal property of which her husband dies possessed. Ex parte Grooms, 102 Ark. 322, 143 S.W. 1063 (1912); Sharp v. Himes, 129 Ark. 327, 196 S.W. 131 (1917); Beal-Burrow Dry Goods Co. v. Kessinger, 132 Ark. 132, 200 S.W. 1002 (1918).

Under this section, a widow is entitled, absolutely and in her own right, to one-third of the personal property of all kinds which her husband owned at his death, without deduction for any debts or claims or expense of administration. Dolton v. Allen, 205 Ark. 189, 167 S.W.2d 893 (1943).

Both the widow and heirs at law are distributees of a solvent intestate estate under §§ 28-1-102 and 28-53-113, and therefore secured debts are to be discharged out of the general estate, unpledged personal property, where the creditor does not pursue the security, which gives the widow a dower right in the entire security free from the debt. Wilcox v. Brewer, 224 Ark. 546, 274 S.W.2d 777 (1955).

Where a widow elects to take a dower interest against the will and consents to the conversion of the realty owned by testator at death into cash, as provided by the will, she may not, as the result of the conversion, thereby maintain a claim to an absolute one-third of the gross estate. Atkinson v. Van Echaute, 236 Ark. 423, 366 S.W.2d 273 (1963).

Where decedent left surviving children, the estate possessed no general assets, and the property was security for a debt incurred prior to decedent's death, the probate judge did not err in awarding the wife dower limited to the net value of the account that constituted the estate. Balfanz v. Estate of Balfanz, 31 Ark. App. 71, 787 S.W.2d 699 (1990).

Trial court's decision reducing a surviving spouses dower interest, received pursuant to the terms of § 28-11-301 and this section, for certain claims against the estate under § 28-53-111 was reversed because the claim for a commission was not a debt that the spouse owed to the estate and the claim based on a note was a contingent claim still subject to unasserted defenses available to the spouse. Stevens v. Heritage Bank, 104 Ark. App. 56, 289 S.W.3d 147 (2008).

Sale of Administrator.

A widow is entitled to one-third of the personal estate absolutely, and an administrator holds it as a trustee for her; if he sells it, she is entitled to the proceeds of one-third of the sale. Menifee's Adm'rs v. Menifee, 8 Ark. (3 English) 9 (1847).

When an administrator applies the personal property to pay off debts of the estate, which property the widow had her right of dower in, she may be subrogated to the remedies of the creditors of the real estate. Crouch v. Edwards, 52 Ark. 499, 12 S.W. 1070 (1889).

Where a widow sits by and tacitly lets her one-third interest in her husband's personal property be liquidated into cash by administrator, she is liable for one-third of the reasonable and fair cost of doing this work. Dolton v. Allen, 205 Ark. 189, 167 S.W.2d 893 (1943).

War Risk Insurance.

Where a husband died leaving a policy of war risk insurance, one-fourth of which was payable to his mother in instalments as long as she lived and at her death the balance, if any, was to go to his estate, it was held that, on the mother's death, the value of the unpaid instalment which would have been paid to her if she had lived and which reverted to his estate was such an estate as entitled the widow of the insured to a dower interest therein. Childers v. Pollock, 178 Ark. 1031, 13 S.W.2d 8 (1929).

Cited: United States v. Norman, 184 F. Supp. 309 (W.D. Ark. 1960); Owen v. Owen, 267 Ark. 532, 592 S.W.2d 120 (1980); Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981).

28-11-306. Bonds, notes, accounts, and evidences of debt.

If any person shall die leaving a surviving spouse, the surviving spouse shall be allowed to take the same dower or curtesy in the bonds, bills, notes, books, accounts, and evidences of debt as the surviving spouse would be entitled to take out of the personal property or cash on hand of the deceased spouse.

History. Acts 1859, No. 231, § 1, p. 299; 1867, No. 116, § 1, p. 277; C. & M. Dig., § 3535; Pope's Dig., § 4420; Acts 1981, No. 714, § 20; A.S.A. 1947, § 61-203.

Research References

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Case Notes

Constitutionality.

This section, which allowed a widow to take dower in bonds, bills, notes, books, accounts, and evidence of debt which her husband owned at the time of his death, but did not contain a similar provision for the husband, was a gender based statute which had no important governmental function and thus violated the equal protection clause of the Fourteenth Amendment of the United States Constitution. Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981), overruled in part, Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983) (decision under prior law).

Priority of Dower.

This section, as amended in 1867, makes the right of dower in deceased husband's choses in action superior to the claims of creditors. Crowley v. Mellon, 52 Ark. 1, 11 S.W. 876 (1889).

United States Bonds.

A widow who renounced the will had no dower rights in United States “H” bonds purchased by her deceased husband, payable on death to his son and daughter, as the bonds belonged to the named payees and did not become a part of the estate of the deceased. Harrison v. Harrison, 234 Ark. 271, 351 S.W.2d 441 (1961).

Cited: United States v. Norman, 184 F. Supp. 309 (W.D. Ark. 1960); Owen v. Owen, 267 Ark. 532, 592 S.W.2d 120 (1980); Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981).

28-11-307. Dower or curtesy when no children.

    1. If a person dies leaving a surviving spouse and no children, the surviving spouse shall be endowed in fee simple of one-half (½) of the real estate of which the deceased person died seized when the estate is a new acquisition and not an ancestral estate and of one-half (½) of the personal estate, absolutely, and in his or her own right, as against collateral heirs.
    2. However, as against creditors, the surviving spouse shall be invested with one-third (1/3) of the real estate in fee simple if a new acquisition, and not ancestral, and of one-third (1/3) of the personal property absolutely.
  1. If the real estate of the deceased person is an ancestral estate, the surviving spouse shall be endowed in a life estate of one-half (½) of the estate as against collateral heirs and one-third (1/3) as against creditors.

History. Rev. Stat., ch. 52, § 21; Acts 1891, No. 65, § 1; C. & M. Dig., § 3536; Pope's Dig., § 4421; Acts 1981, No. 714, § 23; A.S.A. 1947, § 61-206.

Research References

Ark. L. Rev.

Domestic Relations — Adoption of Adults, 12 Ark. L. Rev. 199.

Comment, Arkansas Marriage: A Partnership Between a Husband and Wife, or a Safety Net for Support?, 61 Ark. L. Rev. 735.

U. Ark. Little Rock L.J.

Arkansas Law Survey, Looney, Decedents' Estates, 8 U. Ark. Little Rock L.J. 139.

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Case Notes

Constitutionality.

The operation of the dower provisions under this section, § 28-11-201, and § 28-11-301 which gave a wife the right of dower which could not be defeated by a husband's conveyance and the comparable curtesy statutes under former §§ 61-228 (repealed) and 61-229 (repealed), which allow a wife to defeat curtesy by conveyance, provided for dissimilar treatment for men and women similarly situated, and since there was no justification for the discrimination, this section and § 28-11-201 were held unconstitutional. Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981) (decision under prior law).

Construction.

This section means that if a husband dies leaving a widow and no direct descendants, the widow will be endowed as provided. Britton v. Oldham, 80 Ark. 252, 96 S.W. 1066 (1906).

The word “children” as used in this section includes all direct descendants. Starrett v. McKim, 90 Ark. 520, 119 S.W. 824 (1909).

Dower in real estate “of which such husband died seized” includes lands sold in lifetime of the husband without wife's consent. Fletcher v. Felker, 97 F. Supp. 755 (W.D. Ark. 1951) (decision prior to 1981 amendment).

Adopted Children.

A widow is not entitled to dower under this section where there are surviving adopted children. Sanders v. Taylor, 193 Ark. 1095, 104 S.W.2d 797 (1937).

Descent to Heirs.

Where a widow has, under this section, become entitled to one-half of the realty of which her husband died seized, and dies herself, her heirs and his heirs become tenants in common and hold the land as such. Avera v. Banks, 168 Ark. 718, 271 S.W. 970 (1925).

Effect of Amendment.

The act of 1891 amending this section did not amend, repeal, or in any manner impair § 28-11-201 or 28-11-301. Roetzel v. Beal, 196 Ark. 5, 116 S.W.2d 591 (1938).

Effect of Debts.

A widow is entitled to one-half the estate as against collateral heirs even though all the remainder of the estate is needed to pay debts, and if more than half the estate is needed to pay debts, the widow, as against the collateral heirs, is entitled to the remainder. Whitener v. Whitener, 227 Ark. 1038, 304 S.W.2d 260 (1957).

Equitable Title.

A wife does not have dower interest in land to which her husband has equitable title if he transfers the land prior to his death. Fletcher v. Felker, 97 F. Supp. 755 (W.D. Ark. 1951).

Where husband entered into a contract to sell land to which he held the equitable title, and thereafter pursuant to the agreement the parties holding the legal title transferred the land to husband, wife did not hold dower in the land, since the husband acquired no beneficial interest in the land as it was subject to a contract to convey. Fletcher v. Felker, 97 F. Supp. 755 (W.D. Ark. 1951).

Bankruptcy debtor husband properly claimed an exemption in his curtesy interest in the co-debtor wife's real properties that the wife inherited from a parent; the husband's inchoate interest in the ancestral properties, which was in the nature of a life estate rather than a fee simple estate, was property of the husband's bankruptcy estate. In re Tankersley, 575 B.R. 848 (Bankr. E.D. Ark. 2017).

Inheritance Tax.

Endowment is not subject to the inheritance tax law. McDaniel v. Byrkett, 120 Ark. 295, 179 S.W. 491 (1915).

Interest of Other Heirs.

The widow of one who died childless holding part of the fee simple title to land by inheritance and part by deed from one of his co-heirs held the land partly as unassigned dower and partly as tenant in common with the other heirs, and her holding possession of the land and paying the taxes on it could not be adverse to the interests of the other heirs or their grantees. Head v. Farnum, 244 Ark. 367, 425 S.W.2d 303 (1968).

Judicial Sale.

The sale of a husband's land during his lifetime under execution against him does not defeat the claim of his widow, within seven years of his death, to her dower interest therein. Roetzel v. Beal, 196 Ark. 5, 116 S.W.2d 591 (1938).

Where husband's land was sold under execution against him and there were no children or creditors, the widow was entitled to be endowed in fee simple of one-half of the realty sold at the execution sale. Roetzel v. Beal, 196 Ark. 5, 116 S.W.2d 591 (1938).

Leases.

The interest of a widow in leases on her husband's real estate is an estate in land and not a chattel interest. Brack v. Coburn, 210 Ark. 334, 196 S.W.2d 230 (1946).

Mistake in Assignment.

Equity will decree a reformation for mistake in settlement between parties who were ignorant of provisions of this section. Terry v. Logue, 75 Ark. 240, 87 S.W. 119 (1905).

Where a probate court, acting on the theory that there are no debts, assigns one-half of the homestead of a decedent to his widow in fee and the other half as dower, and subsequently creditors appear, she will, in the absence of a showing in the record to the contrary, be held not to have waived her homestead rights. Robertson v. Adams, 163 Ark. 290, 260 S.W. 37 (1924).

Where commissioners had recommended, without explanation, that ancestral estates be assigned to the wife in fee, the confirmation by the court could be set aside at instance of collateral heirs. Browning v. Berg, 196 Ark. 595, 118 S.W.2d 1017 (1938).

New Acquisition.

Where a father, in consideration of the assumption by his son of a portion of a mortgage, conveyed certain lands to his son, the grant became, in the son, a new acquisition, and there being no children, his widow's dower was in fee. Beard v. Beard, 148 Ark. 29, 228 S.W. 734 (1921).

The widow of a deceased husband takes one-half of his lands which are new acquisitions in fee simple. Wilson v. Biles, 171 Ark. 912, 287 S.W. 373 (1926).

Where a husband dies childless, his widow's dower in a new acquisition is one-half thereof which passes to her, while the other one-half passes to his collateral heirs subject to her right of homestead. Smith v. Goldby, 172 Ark. 549, 289 S.W. 780 (1927).

Where a married son dies leaving lands as a new acquisition and no children or creditors, his father and his widow each takes a half interest therein in fee. Tandy v. Smith, 173 Ark. 828, 293 S.W. 735 (1927).

Pending Divorce Suit.

A testator's widow not divorced, though a suit for that purpose was pending, is entitled to one-half of his personal estate, there being no children, and a specific legacy of money in a bank is to be included in arriving at her share. Holcomb v. Mullin, 167 Ark. 622, 268 S.W. 32 (1925).

Priority of Dower.

Although a bankruptcy debtor's recognizable, inchoate dower interest in her husband's real property was property of the debtor's bankruptcy estate, the property was not subject to turnover under 11 U.S.C.S. § 542 due to the debtor's legal inability to transfer the interest to anyone other than the husband's grantee. In re Flippin, 334 B.R. 434 (Bankr. W.D. Ark. 2005), modified, Clark v. Flippin, — F. Supp. 2d —, 2006 U.S. Dist. LEXIS 71739 (W.D. Ark. Sept. 29, 2006).

Bankruptcy court correctly held that, although a debtor's dower interest was property of the bankruptcy estate, it could not be conveyed and, because the interest was not one which was transferable, it was not subject to turnover under 11 U.S.C.S. § 542(a). Clark v. Flippin, — F. Supp. 2d —, 2006 U.S. Dist. LEXIS 71739 (W.D. Ark. Sept. 29, 2006).

Seizen.

There must have been actual corporeal seizen in the husband during coverture; therefore, dower will not attach to realty in which he had only a remainder or reversion. McGuire v. Cook, 98 Ark. 118, 135 S.W. 840 (1911).

A widow has an interest in real estate of which her husband died seized, which, so far as the wife's dower is concerned, includes lands sold in the lifetime of the husband without her consent in legal form against all creditors of the estate. Roetzel v. Beal, 196 Ark. 5, 116 S.W.2d 591 (1938).

Possession by tenant of leased land is possession of landlord. Brack v. Coburn, 210 Ark. 334, 196 S.W.2d 230 (1946).

If father dies leaving a widow, a married son, and three other children, and children do not live on the land after the death of the father, and married son dies before his mother, leaving a widow, the widow of married son is not entitled to dower, as her husband did not die seized of an estate of inheritance. Maloney v. McCullough, 215 Ark. 570, 221 S.W.2d 770 (1949).

Separation Agreement.

Where a husband dies leaving lands, not ancestral, and there are neither debts nor children, his widow is entitled to one-half thereof in fee simple, though there was a separation agreement between them which, however, had been annulled by their subsequently living together as husband and wife. Sherman v. Sherman, 159 Ark. 364, 252 S.W. 27 (1923).

Vesting of Interest.

The widow's interest vests in her immediately on the husband's death and will descend to her heirs. Barton v. Wilson, 116 Ark. 400, 172 S.W. 1032 (Ark. 1915).

No adjudication of a court is necessary. Kendall v. Crenshaw, 116 Ark. 427, 173 S.W. 393 (1915).

The estate becomes vested immediately upon a husband's death, but it does not vest in severalty until it is assigned to the widow. Arbaugh v. West, 127 Ark. 98, 192 S.W. 171 (1917).

Dower interest of a widow vests immediately upon death of her husband, but dower interest does not vest if husband does not die seized of property. Maloney v. McCullough, 215 Ark. 570, 221 S.W.2d 770 (1949).

Where a father died intestate and his son was appointed administrator but died intestate and without surviving issue before expiration of time for filing claims against father's estate and without ever having taken charge of the real estate of the father's estate, and the debts of the father's estate were all paid from the personalty, the widow of the son was entitled to dower in her husband's interest in the lands of his father, under provisions of this section, since her husband died seized of the lands. Pfaff v. Heizman, 218 Ark. 201, 235 S.W.2d 551, 23 A.L.R.2d 957 (1951).

Cited: Thomas v. Langley, 200 Ark. 220, 138 S.W.2d 380 (1940); Howze v. Hutchens, 213 Ark. 52, 209 S.W.2d 286 (1948); Daniels v. Johnson, 216 Ark. 374, 226 S.W.2d 571, 15 A.L.R.2d 1401 (1950); Harbour v. Sheffield, 269 Ark. 932, 601 S.W.2d 595 (Ct. App. 1980); Heath v. Clear, 280 Ark. 482, 659 S.W.2d 504 (1983).

Subchapter 4 — Provisions in Lieu of Dower or Curtesy

Effective Dates. Acts 1981, No. 714, § 75: Mar. 25, 1981. Emergency clause provided: “It has been found and is declared by the General Assembly of Arkansas that existing law relating to such such matters as homestead, dower, curtesy, statutory allowances payable from a decedent's estate, and the right of a surviving spouse to take against the will of a decedent, do not in all circumstances provide for equal treatment between the sexes, that the constitutionality of such existing law has been drawn into question by decisions of the United States Supreme Court and the Arkansas Supreme Court, and that there is an urgent need to insure that the law provides equality in the property rights and interests of married persons. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from the date of its approval.”

28-11-401. Jointure or payment with spouse's assent.

  1. When an estate in land shall be conveyed to a person and his or her intended spouse, or to the intended spouse alone, or to any person in trust for the person and his or her intended spouse, or in trust for the spouse alone, for the purpose of erecting a jointure for the intended spouse, and with his or her assent, the jointure shall be a bar to any right or claim for dower or curtesy of the spouse in any land of the other spouse.
  2. The assent of the spouse to the jointure shall be evinced, if he or she is of full age, by his or her becoming a party to the conveyance by which it shall be settled or, if the spouse is an infant, by his or her joining with his or her father or guardian in the conveyance.
  3. Any pecuniary provision that shall be made for the benefit of an intended spouse, and in lieu of dower or curtesy, if assented to by the intended spouse, as provided in this section, shall be a bar to any right or claim of dower or curtesy of the spouse in all lands of his or her spouse.

History. Rev. Stat., ch. 52, §§ 9-11; C. & M. Dig., §§ 3522-3524; Pope's Dig., §§ 4406-4408; Acts 1981, No. 714, §§ 31-33; A.S.A. 1947, §§ 61-214 — 61-216.

Research References

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Case Notes

Equitable Jointure.

An antenuptial agreement between husband and wife that the wife shall take a child's part in her husband's estate, except as to the homestead, being intended in lieu of dower, though not a technical jointure, will be deemed an equitable jointure. Comstock v. Comstock, 146 Ark. 266, 225 S.W. 621 (1920).

Right to Possession.

Jointure bars dower, and the right to possession of a jointure accrues upon the husband's death. Bryan v. Bryan, 62 Ark. 79, 34 S.W. 260 (1896).

Separation Agreement.

A wife cannot claim dower in her deceased husband's lands where she agreed to a separation from him and accepted a deed to certain lands in lieu of dower. McGaugh v. Mathis, 131 Ark. 221, 198 S.W. 1147 (1917).

28-11-402. Jointure or payment — Election of spouse.

If, before the marriage, but without a spouse's assent, or if, after the marriage, land shall be given or assured for the jointure of a spouse or a pecuniary provision shall be made for the spouse in lieu of dower or curtesy, the spouse shall make an election whether the spouse will take the jointure or pecuniary provision, or whether the spouse will be endowed of the lands of the other spouse. However, the spouse shall not be entitled to both.

History. Rev. Stat., ch. 52, § 12; C. & M. Dig., § 3525; Pope's Dig., § 4409; Acts 1981, No. 714, § 34; A.S.A. 1947, § 61-217.

28-11-403. Devise or bequest — Election of spouse.

If land is devised to a spouse, or a pecuniary or other provision is made for a spouse by will in lieu of dower or curtesy, the spouse shall make an election whether he or she will take the land so devised, or the provision so made, or whether he or she will be endowed of the lands of the other spouse.

History. Rev. Stat., ch. 52, § 13; C. & M. Dig., § 3526; Pope's Dig., § 4410; Acts 1981, No. 714, § 35; A.S.A. 1947, § 61-218.

Research References

Ark. L. Rev.

The New Arkansas Inheritance Laws: A Step into the Present with an Eye to the Future, IV. A Major Defect Marked for Correction, 23 Ark. L. Rev. 313.

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Case Notes

Construction of Will.

A will providing for maintenance of the testator's widow from the income of the estate and directing the trustee to hold the entire real estate intact until the widow's death, unless its use was necessary for her care and maintenance, was held to make provision in lieu of dower, requiring an election on her part. United States Fid. & Guar. Co. v. Edmondson, 187 Ark. 257, 59 S.W.2d 488 (1933).

Election.

Acceptance of bequest in lieu of dower will be presumed to be an election to take under the will. Goodrum v. Goodrum, 56 Ark. 532, 20 S.W. 353 (1892).

Where a widow made no election to disregard the will, she is presumed to take under the will, though she would have profited by renouncing the will. Kirk v. Mason, 188 Ark. 1000, 68 S.W.2d 1012 (1934).

In an administrator's suit to enforce payment of a note executed by a widow for the purchase of the deceased husband's partnership interests, where she had joined in a petition by the administrator to the probate court to approve the sale of the deceased husband's partnership interest to her and expressly waived her right to dower in her husband's estate with full knowledge of her rights, she will be held to have made a binding election to take under the deceased husband's will and hence not be entitled to claim dower in his estate. McEachin v. People's Nat'l Bank, 191 Ark. 544, 87 S.W.2d 12 (1935).

If the owner of real property dies intestate, the title to his property vests immediately in his heirs subject to appropriate provisions for administration under the Probate Code and subject to widow's dower and homestead rights, if any. Farmers Coop. Ass'n v. Webb, 249 Ark. 277, 459 S.W.2d 815 (1970).

Land Taking the Form of Personalty.

Where testator's property at death consists of household goods and land, his will directs the land to be sold and converted into cash, and the widow elects to take against the will and consents to the sale of the land, her dower in the realty is limited to a life interest in the proceeds from the sale of the land. Atkinson v. Van Echaute, 236 Ark. 423, 366 S.W.2d 273 (1963).

Personalty.

This section does not apply to a devise of personalty. Kollar v. Noble, 184 Ark. 297, 42 S.W.2d 408 (1931).

Statutory Allowances.

The widow was not required to elect between taking under the will and taking the statutory allowances; as allowances are no part of dower and may be claimed without disavowing the will, unless clearly against the provisions of the will. Costen v. Fricke, 169 Ark. 572, 276 S.W. 579 (1925).

Cited: Farmers Coop. Ass'n v. Webb, 249 Ark. 277, 459 S.W.2d 815 (1970).

28-11-404. Devise deemed in lieu of dower or curtesy.

If any spouse shall devise and bequeath to the other spouse any portion of his or her real estate of which he or she died seized, it shall be deemed and taken in lieu of dower or curtesy, as the case may be, out of the estate of the deceased spouse, unless the testator shall, in his or her will, declare otherwise.

History. Rev. Stat., ch. 52, § 23; C. & M. Dig., § 3538; Pope's Dig., § 4424; Acts 1981, No. 714, § 37; A.S.A. 1947, § 61-221.

Case Notes

Personalty.

This section does not apply to a devise of personalty. Kollar v. Noble, 184 Ark. 297, 42 S.W.2d 408 (1931).

28-11-405. Forfeiture.

Every jointure, devise, and pecuniary provision, in lieu of dower or curtesy, shall be forfeited by the spouse for whose benefit it shall be made, in the same cases in which the spouse would forfeit his or her dower or curtesy, as the case may be. Upon such a forfeiture, any estate so conveyed for jointure and every pecuniary provision so made shall immediately vest in the person, or his or her legal representatives, in whom they would have vested on the determination of the spouse's interest therein by the death of the spouse.

History. Rev. Stat., ch. 52, § 15; C. & M. Dig., § 3528; Pope's Dig., § 4412; Acts 1981, No. 714, § 36; A.S.A. 1947, § 61-220.

Research References

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Case Notes

Cited: Pickens v. Black, 318 Ark. 474, 885 S.W.2d 872 (1994).

Chapter 12 Disposition Of Community Property

Publisher's Notes. For Comments regarding the Uniform Disposition of Community Property Rights at Death Act, see Commentaries Volume B.

Research References

Am. Jur. 15A Am. Jur. 2d, Community Prop., § 109 et seq.

Ark. L. Notes.

Watkins, A Guide to Choice of Law in Arkansas, 2005 Arkansas L. Notes 151.

Ark. L. Rev.

Leflar, Conflict of Laws: Arkansas, 1983-87, 41 Ark. L. Rev. 63.

U. Ark. Little Rock L.J.

Legislative Survey, Decedents' Estates, 4 U. Ark. Little Rock L.J. 591.

28-12-101. Application.

This chapter applies to the disposition at death of the following property acquired by a married person:

  1. All personal property, wherever situated:
    1. Which was acquired as or became, and remained, community property under the laws of another jurisdiction; or
    2. All or the proportionate part of that property acquired with the rents, issues, or income of, or the proceeds from, or in exchange for, that community property; or
    3. Traceable to that community property;
  2. All or the proportionate part of any real property situated in this state which was acquired with the rents, issues, or income of, the proceeds from, or in exchange for, property acquired as or which became, and remained, community property under the laws of another jurisdiction, or property traceable to that community property.

History. Acts 1981, No. 660, § 1; A.S.A. 1947, § 61-401.

Research References

Ark. L. Rev.

Carroll, Uniform Laws in Arkansas, 52 Ark. L. Rev. 313.

28-12-102. Rebuttable presumptions.

In determining whether this chapter applies to specific property, the following rebuttable presumptions apply:

  1. Property acquired during marriage by a spouse of that marriage while domiciled in a jurisdiction under whose laws property could then be acquired as community property is presumed to have been acquired as or to have become, and remained, property to which this chapter applies; and
  2. Real property situated in this state and personal property wherever situated acquired by a married person while domiciled in a jurisdiction under whose laws property could not then be acquired as community property, title to which was taken in a form which created rights of survivorship, is presumed not to be property to which this chapter applies.

History. Acts 1981, No. 660, § 2; A.S.A. 1947, § 61-402.

28-12-103. Disposition upon death.

Upon the death of a married person, one-half (½) of the property to which this chapter applies is the property of the surviving spouse and is not subject to testamentary disposition by the decedent or distribution under the laws of succession of this state. One-half (½) of that property is the property of the decedent and is subject to testamentary disposition or distribution under the laws of succession of this state. With respect to property to which this chapter applies, the one-half (½) of the property which is the property of the decedent is not subject to the surviving spouse's right to elect against the will and no estate of dower or curtesy exists in the property of the decedent.

History. Acts 1981, No. 660, § 3; A.S.A. 1947, § 61-403.

28-12-104. Perfection of title of surviving spouse.

If the title to any property to which this chapter applies was held by the decedent at the time of death, title of the surviving spouse may be perfected by an order of the court or by execution of an instrument by the personal representative or the heirs or devisees of the decedent with the approval of the court. Neither the personal representative nor the court in which the decedent's estate is being administered has a duty to discover or attempt to discover whether property held by the decedent is property to which this chapter applies, unless a written demand is made by the surviving spouse or the spouse's successor in interest.

History. Acts 1981, No. 660, § 4; A.S.A. 1947, § 61-404.

28-12-105. Perfection of title of personal representative, heir, or devisee.

If the title to any property to which this chapter applies is held by the surviving spouse at the time of the decedent's death, the personal representative or an heir or devisee of the decedent may institute an action to perfect title to the property. The personal representative has no fiduciary duty to discover or attempt to discover whether any property held by the surviving spouse is property to which this chapter applies, unless a written demand is made by an heir, devisee, or creditor of the decedent.

History. Acts 1981, No. 660, § 5; A.S.A. 1947, § 61-405.

28-12-106. Purchaser for value or lender.

  1. If a surviving spouse has apparent title to property to which this chapter applies, a purchaser for value or a lender taking a security interest in the property takes his interest in the property free of any rights of the personal representative or an heir or devisee of the decedent.
  2. If a personal representative or an heir or devisee of the decedent has apparent title to property to which this chapter applies, a purchaser for value or a lender taking a security interest in the property takes his interest in the property free of any rights of the surviving spouse.
  3. A purchaser for value or a lender need not inquire whether a vendor or borrower acted properly.
  4. The proceeds of a sale or creation of a security interest shall be treated in the same manner as the property transferred to the purchaser for value or a lender.

History. Acts 1981, No. 660, § 6; A.S.A. 1947, § 61-406.

28-12-107. Creditor's rights.

This chapter does not affect rights of creditors with respect to property to which this chapter applies.

History. Acts 1981, No. 660, § 7; A.S.A. 1947, § 61-407.

28-12-108. Acts of married persons.

This chapter does not prevent married persons from severing or altering their interests in property to which this chapter applies.

History. Acts 1981, No. 660, § 8; A.S.A. 1947, § 61-408.

28-12-109. Limitations on testamentary disposition.

This chapter does not authorize a person to dispose of property by will if it is held under limitations imposed by law preventing testamentary disposition by that person.

History. Acts 1981, No. 660, § 9; A.S.A. 1947, § 61-409.

28-12-110. Uniformity of application and construction.

This chapter shall be so applied and construed as to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among those states which enact it.

History. Acts 1981, No. 660, § 10; A.S.A. 1947, § 61-410.

28-12-111. Short title.

This chapter may be cited as the “Uniform Disposition of Community Property Rights at Death Act.”

History. Acts 1981, No. 660, § 11; A.S.A. 1947, § 61-411.

28-12-112. Effective date.

This chapter shall become effective on October 1, 1981.

History. Acts 1981, No. 660, § 17[12]; A.S.A. 1947, § 61-114n.

28-12-113. Repealer.

All laws and parts of laws in conflict with this chapter are repealed.

History. Acts 1981, No. 660, § 13.

Chapter 13 Escheated Estates

Publisher's Notes. Prior to the amendment of Rev. Stat., ch. 57, by Acts 1985, No. 703, which became effective on March 28, 1985, property which qualified for escheatment escheated to and vested in the state.

Cross References. Publication of notice, § 16-3-101 et seq.

Transfer of civil duties of prosecuting attorney to county attorney, § 16-21-114.

Preambles. Acts 1979, No. 899, contained a preamble which read:

“Whereas, Arkansas Social Services now provides funds to pay for nursing care for many indigent persons who have no heirs; and

“Whereas, Arkansas Social Services provides a monthly sum to indigent patients to purchase personal supplies; and

“Whereas, the funds provided are often not used and result in a small estate normally being kept for the individual under nursing home accounting procedures; and

“Whereas, a procedure for these funds to escheat to the state is long and expensive; and

“Whereas, the moneys have originally come from Arkansas Social Services and should be returned to Arkansas Social Services;

“Now therefore….”

Effective Dates. Acts 1885, No. 18, § 5: effective on passage.

Acts 1985, No. 703, § 8: Mar. 28, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that present law provides for escheated estates to become the property of the State; that due to the financial hardships facing counties it now appears more equitable to allow estates to escheat to the county wherein the decedent resided at death; that such property will continue to escheat to the State until this Act goes into effect. Therefore, an emergency is hereby declared to exist and this Act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Research References

Am. Jur. 27A Am. Jur. 2d, Escheat, § 1 et seq.

Ark. L. Rev.

Abandoned Property, Ark. L. Rev. 339.

C.J.S. 30A C.J.S., Escheat, § 1 et seq.

U. Ark. Little Rock L.J.

Legislative Survey, Probate, 8 U. Ark. Little Rock L.J. 597.

Averill & Brantley, A Comparison of Arkansas's Current Law Concerning Succession, Wills, and Other Donative Transfers with Article II of the 1990 Uniform Probate Code, 17 U. Ark. Little Rock L.J. 631.

Case Notes

Time of Escheat.

Escheat occurs immediately upon the death of the intestate, not when the probate court enters its order finding the estate must escheat. Newton County v. West, 293 Ark. 461, 739 S.W.2d 141 (1987).

28-13-101. Applicability of chapter.

The provisions of this chapter shall apply to all estates which have not escheated to the state prior to March 28, 1985.

History. Acts 1985, No. 703, § 6; A.S.A. 1947, § 62-1833.

Case Notes

Cited: Newton County v. West, 293 Ark. 461, 739 S.W.2d 141 (1987).

28-13-102. Prerequisites to escheat of property.

If any person dies seized of any real or personal estate, without any devise thereof, and leaving no heirs or representatives capable of inheriting the estate, or the devisees are incapable of holding the estate, and when there is no owner of real estate capable of holding the estate, the estate shall escheat to and vest in the county wherein the decedent resided at death.

History. Rev. Stat., ch. 57, § 1; C. & M. Dig., § 4078; Pope's Dig., § 5087; Acts 1985, No. 703, § 2; A.S.A. 1947, § 62-1801.

Case Notes

Cited: State ex rel. Going v. Southwestern Land & Timber Co., 93 Ark. 621, 126 S.W. 73 (1910); King v. Harris, 134 Ark. 337, 203 S.W. 847 (1918); State v. Phillips Petroleum Co., 212 Ark. 530, 206 S.W.2d 771 (1947); Newton County v. West, 293 Ark. 461, 739 S.W.2d 141 (1987).

28-13-103. Claims for nursing care of intestate.

  1. If any person dies seized of any real or personal estate, with no surviving spouse or minor children and the person has received nursing care paid in whole or in part by the Department of Human Services, then the department shall be entitled to reimbursement for the total amount of nursing care paid for by the department for the intestate.
  2. The department may file as a distributee under the provisions of § 28-41-101 for the sum total of all nursing home payments made by the state on behalf of the intestate decedent when:
    1. The department is informed or has reason to believe that there are no known heirs or legal representatives of the intestate, or that no person will appear within one (1) year after granting letters of administration; or
    2. There has been no pleading filed to dispense with administration under § 28-41-101 to claim the personal estate of the intestate as next of kin.
  3. In the event that the property remaining exceeds the amount of payment made by the department on behalf of the decedent, the excess funds shall escheat to the state under the procedures of this chapter.

History. Acts 1979, No. 899, §§ 1-3; A.S.A. 1947, §§ 62-2615 — 62-2617; Acts 2001, No. 927, § 1.

Cross References. Intestate succession, § 28-9-201 et seq.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Probate Law, 24 U. Ark. Little Rock L. Rev. 631.

28-13-104. Settlement of administrator's accounts.

  1. When there is administration granted and there are no known heirs or legal representatives of the intestate, or no person shall appear, within two (2) years after granting letters of administration, to claim the personal estate of the intestate, as next of kin, the administrator, in the settlement of his or her accounts with the proper court, shall account for all money which may come to his or her hands as administrator.
  2. If there is an amount more than sufficient to pay the debts of the deceased and the expenses of the administration, the court, on settlement, shall ascertain the amount remaining in the hands of the administrator and grant duplicate certificates thereof, one (1) of which shall be delivered to the prosecuting attorney and the other to the county treasurer, who shall charge the administrator with the amount.
  3. The administrator shall pay the amount into the county treasury within three (3) months after the settlements. When the administrator pays the amount, the county treasurer shall give him or her a receipt therefor and credit him or her with the amount so paid into the treasury.
  4. The court having the settlement of accounts with the administrator, upon the production of the county treasurer's certificate to them, shall credit the administrator with the amount.
  5. However, if payment shall not be made, the prosecuting attorney for the district shall move the court for judgment against the administrator and his or her securities, or either of them, for such balance and three percent (3%) per month thereon, giving to the administrator and his or her securities ten days' notice of the intended motion. The court shall hear and determine the motion in a summary manner, without the necessity of formal pleading.
  6. If the administrator or his or her securities do not produce the county treasurer's certificate showing full payment into the county treasury, the court shall render judgment against the administrator and his or her securities, or such of them as shall receive notice, for the amount due, and three percent (3%) per month thereon from the time the balance was first ascertained until the rendition of the judgment, and the costs of the proceedings, and issue execution thereon.
  7. If the certificate of the Auditor of State is produced, the administrator and his or her securities shall, nevertheless, be adjudged to pay the costs of the proceedings and shall in no case recover costs.

History. Rev. Stat., ch. 57, §§ 2-7; C. & M. Dig., §§ 4079-4084; Pope's Dig., §§ 5088-5093; Acts 1985, No. 703, § 3; A.S.A. 1947, §§ 62-1802 — 62-1807.

28-13-105. Prosecuting attorney — Duties.

  1. When there are no known heirs or legal representatives, the prosecuting attorney for the district within which the courts are held wherein the accounts of any such administrator are required to be settled shall:
    1. Examine the proceedings of the administration;
    2. Cause process to be issued to compel the prompt settlement of his or her accounts;
    3. Attend the settlement, when necessary, on behalf of the county;
    4. Contest any item which to him or her shall appear unjust or unreasonable; and
    5. In case of waste and mismanagement of the estate, or other maladministration, cause proper suits and proceedings to be instituted and prosecuted.
  2. He or she is required, in behalf of the county, to do all things touching the administration which could be done by any sole heir, and especially to preserve the real estate from being improperly sold, wasted, or damaged.
  3. It is made his or her special duty, by himself or herself or his or her deputy, whom he or she may make, when inconvenient to attend in person, to attend all the courts in his or her district in which any case under this chapter may be pending.

History. Rev. Stat., ch. 57, §§ 8, 9; C. & M. Dig., §§ 4085, 4086; Pope's Dig., §§ 5094, 5095; Acts 1985, No. 703, § 4; A.S.A. 1947, §§ 62-1808, 62-1809.

28-13-106. Escheat of real property — Proceedings.

    1. When the prosecuting attorney for the district has been informed or has reason to believe that any real estate within his or her district has escheated to the county and the estate has not been sold, according to law, within three (3) years after the death of the person last seized for the payment of the debts of the deceased, he or she shall file an information, in behalf of the county, in the circuit court of the county in which the estate is situated.
    2. The information shall set forth a description of the estate, the name of the person last lawfully seized, the names of the terre-tenants and persons claiming the estate, if known, and the facts and circumstances in consequence of which the estate is claimed to have escheated, and alleging that, by reason thereof, the county has the right to the estate.
  1. The court shall award and issue a scire facias against the person, bodies politic or corporate, who are alleged in the information to hold, possess, or claim the estate, requiring them to appear and show cause why the estate should not be vested in the county, at the next term of the court.
  2. The scire facias shall be served fifteen (15) days before the return day thereof.
  3. The court shall make an order setting forth briefly the contents of the information and requiring all persons interested in the estate to appear and show cause, at the next term of the court, why the estate shall not be vested in the county. The order shall be published for four (4) weeks in a newspaper printed in the county.
  4. All persons, bodies politic and bodies corporate, named in the information as terre-tenants or claimants of the estate may appear and plead to the proceeding and may traverse the facts stated in the information or the title of the county to the lands and tenements therein mentioned at any time on or before the third day after the return of the scire facias. Any other person claiming an interest in the estate may appear and be made defendant and plead by motion for that purpose in open court within the time allowed for pleading.
  5. If any person appears and denies the title set up by the county, or traverses any material fact in the information, issue shall be made up and tried as other issues of fact.
  6. A survey may be ordered as in other cases where the titles or boundaries of land are drawn in question.

History. Rev. Stat., ch. 57, §§ 10-13, 15; C. & M. Dig., §§ 4087-4090, 4092; Pope's Dig., §§ 5096-5099, 5101; Acts 1985, No. 703, § 4; A.S.A. 1947, §§ 62-1810 — 62-1813, 62-1815.

Case Notes

Cited: Newton County v. West, 293 Ark. 461, 739 S.W.2d 141 (1987).

28-13-107. Escheat of real property — Judgments.

  1. If no person appears and pleads, or, appearing, refuses to plead within the term, then judgment shall be rendered that the county is seized of the lands and tenements in the information claimed.
    1. If, after the issues are tried, it appears from the facts found or admitted that the county has good title to the lands and tenements in the information mentioned, or any part thereof, then judgment shall be rendered that the county is seized thereof and shall recover costs against the defendant.
    2. When any judgment shall be rendered that the county is seized of any real estate, the judgment shall contain a description of the real estate and shall vest the title in the county.
    1. If it appears that the county has no title in the estate, the defendant shall recover his or her costs, to be taxed and certified by the clerk. Upon the certificate's being filed in his or her office, the county treasurer shall issue a warrant therefor on the treasury of the county, which shall be paid as other demands on the treasury.
    2. However, no defendant shall be entitled to recover costs unless the title to the estate appears to the court, by the facts found, to be in him or her.

History. Rev. Stat., ch. 57, §§ 14, 16-18; C. & M. Dig., §§ 4091, 4093-4095; Pope's Dig., §§ 5100, 5102-5104; Acts 1985, No. 703, § 4; A.S.A. 1947, §§ 62-1814, 62-1816 — 62-1818.

Case Notes

Cited: Newton County v. West, 293 Ark. 461, 739 S.W.2d 141 (1987).

28-13-108. Escheat of real property — Vesting title in county.

  1. A writ shall be issued to the sheriff of the proper county commanding the sheriff to seize the real estate vested in the county.
  2. Upon the return of the writ of seizure, the prosecuting attorney for the district shall:
    1. Cause the record and process to be exemplified under the seal of the court;
    2. Deposit the record and process in the office of the county treasurer; and
    3. Cause a transcript of the judgment to be recorded in the office of the recorder of the county in which the lands lie.
  3. The judgment shall preclude all parties and privies thereto, their heirs and assigns, so long as the judgment shall remain in force.

History. Rev. Stat., ch. 57, §§ 19, 20; C. & M. Dig., §§ 4096, 4097; Pope's Dig., §§ 5105, 5106; Acts 1985, No. 703, § 4; A.S.A. 1947, §§ 62-1819, 62-1820.

28-13-109. Sale of escheated real estate.

  1. The county judge may cause the estate to be sold at any time after seizure, in such manner as may be provided by the quorum court. In such a case, the claimants shall be entitled to the proceeds, in lieu of the real estate, upon obtaining a decree or order reclaiming the escheated property, as provided for in § 28-13-110.
  2. All lands escheated to the State of Arkansas under the provisions of law shall be sold in the manner provided in this section.
  3. The Commissioner of State Lands shall cause the lands to be sold by the sheriffs of the several counties in which the lands may be situated, at the courthouse door in the county, at public auction for cash, on the first day of the circuit court, but first giving four (4) weeks' notice of the time, place, and terms of the sale and published in a newspaper published in the county. If there is no newspaper therein, then publication shall be by notices posted at six (6) of the most public places in the county four (4) weeks before the day of sale.
  4. Immediately upon the receipt of the purchase money, the sheriff shall pay the purchase money over to the Treasurer of State for use of the Public School Fund of the state and report the sale and the amount for which the lands were sold to the Commissioner of State Lands who shall make and keep a record thereof in his or her office.
  5. If the Commissioner of State Lands shall find the sale to have been in conformity to law and the purchase money fully paid, he or she shall execute a deed under his or her hand and official seal conveying all the title of the state in the lands to the purchaser. The deed, duly executed, shall be admitted to record and received as evidence in all the courts of this state.
  6. As compensation for his or her services in making the sale, the sheriff shall receive two percent (2%) upon the amount of the purchase money received for the land and, also, the actual cost of advertising the sale. These amounts are to be deducted from the purchase money received at the sale.

History. Rev. Stat., ch. 57, § 28; Acts 1885, No. 18, §§ 1-4, p. 22; C. & M. Dig., §§ 4105-4109; Pope's Dig., §§ 5114-5118; Acts 1985, No. 703, § 5; A.S.A. 1947, §§ 62-1828 — 62-1832.

28-13-110. Reclamation of escheated property.

      1. If any person appears within seven (7) years after the death of the intestate and claims any money paid into the treasury under this chapter as heir or legal representative, he or she may file a petition in the circuit court in the county in which the decedent resided at death, stating the nature of his or her claim and praying that such money may be paid to him or her.
      2. A copy of the petition shall be served on the prosecuting attorney for the district, who shall put in an answer to the petition.
    1. The court shall examine the claim and the allegations and proofs. If it finds that the person is entitled to any money paid into the treasury, the court shall make an order directing the county treasurer to issue his or her warrant on the county treasurer for the payment of the money, but without interest or costs. A copy of the order, under the seal of the court, shall be a sufficient voucher for issuing the warrant.
    1. If any person appears and claims lands vested in the county within seven (7) years after the death of the last person seized, the person, other than one who was served with scire facias or appeared to the proceeding or the person's heirs or assigns, may file his or her petition in the circuit court in the county or district where the land may lie, setting forth the nature of his or her demand or claim and praying that the estate may be relinquished to him or her.
    2. A copy of the petition shall be served on the prosecuting attorney for the district, who shall answer it. The court shall examine the claim and allegations, together with such proof as may be adduced.
    3. If it appears that the person is entitled to the lands, the court shall decree accordingly. The decree shall divest the interest of the county in the estate. However, no costs shall be adjudged against the county in such a case.
  1. All persons who fail to appear and file their petitions within the time limited shall be forever barred, except the usual saving to infants.

History. Rev. Stat., ch. 57, §§ 23-27; C. & M. Dig., §§ 4100-4104; Pope's Dig., §§ 5109-5113; Acts 1985, No. 703, § 4; A.S.A. 1947, §§ 62-1823 — 62-1827.

Case Notes

Cited: Newton County v. West, 293 Ark. 461, 739 S.W.2d 141 (1987).

28-13-111. Review of proceedings.

Any party who has appeared to any proceedings, and the prosecuting attorney for the circuit on behalf of the county, shall have the right to prosecute an appeal or writ of error upon the judgment.

History. Rev. Stat., ch. 57, § 21; C. & M. Dig., § 4098; Pope's Dig., § 5107; Acts 1985, No. 703, § 4; A.S.A. 1947, § 62-1821.

28-13-112. County treasurer's duties.

The county treasurer shall keep just accounts of all moneys paid into the treasury and of all lands vested in the county under the provisions of this chapter.

History. Rev. Stat., ch. 57, § 22; C. & M. Dig., § 4099; Pope's Dig., § 5108; Acts 1985, No. 703, § 4; A.S.A. 1947, § 62-1822.

Chapter 14 Uniform TOD Security Registration Act

Publisher's Notes. For Comments regarding the Uniform Transfer on Death Security Registration Act, see Commentaries Volume B.

Research References

U. Ark. Little Rock L.J.

Legislative Survey, Miscellaneous, 16 U. Ark. Little Rock L.J. 161.

28-14-101. Definitions.

In this chapter, unless the context otherwise requires:

  1. “Beneficiary form” means a registration of a security which indicates the present owner of the security and the intention of the owner regarding the person who will become the owner of the security upon the death of the owner.
  2. “Devisee” means any person designated in a will to receive a disposition of real or personal property.
  3. “Heirs” means those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent.
  4. “Person” means an individual, a corporation, an organization, or other legal entity.
  5. “Personal representative” includes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status.
  6. “Property” includes both real and personal property or any interest therein and means anything that may be the subject of ownership.
  7. “Register,” including its derivatives, means to issue a certificate showing the ownership of a certificated security or, in the case of an uncertificated security, to initiate or transfer an account showing ownership of securities.
  8. “Registering entity” means a person who originates or transfers a security title by registration, and includes a broker maintaining security accounts for customers and a transfer agent or other person acting for or as an issuer of securities.
  9. “Security” means a share, participation, or other interest in property, in a business, or in an obligation of an enterprise or other issuer, and includes a certificated security, an uncertificated security, and a security account.
  10. “Security account” means (i) a reinvestment account associated with a security, a securities account with a broker, a cash balance in a brokerage account, cash, interest, earnings, or dividends earned or declared on a security in an account, a reinvestment account, or a brokerage account, whether or not credited to the account before the owner's death, or (ii) a cash balance or other property held for or due to the owner of a security as a replacement for or product of an account security, whether or not credited to the account before the owner's death.
  11. “State” includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States.

History. Acts 1993, No. 114, § 1.

Research References

Ark. L. Rev.

Carroll, Uniform Laws in Arkansas, 52 Ark. L. Rev. 313.

Case Notes

Cited: Ginsburg v. Ginsburg, 359 Ark. 226, 195 S.W.3d 898 (2004).

28-14-102. Registration in beneficiary form — Sole or joint tenancy ownership.

Only individuals whose registration of a security shows sole ownership by one individual or multiple ownership by two or more with right of survivorship, rather than as tenants in common, may obtain registration in beneficiary form. Multiple owners of a security registered in beneficiary form hold as joint tenants with right of survivorship, as tenants by the entireties, or as owners of community property held in survivorship form, and not as tenants in common.

History. Acts 1993, No. 114, § 2.

28-14-103. Registration in beneficiary form — Applicable law.

A security may be registered in beneficiary form if the form is authorized by this or a similar statute of the state of organization of the issuer or registering entity, the location of the registering entity's principal office, the office of its transfer agent or its office making the registration, or by this or a similar statute of the law of the state listed as the owner's address at the time of registration. A registration governed by the law of a jurisdiction in which this or similar legislation is not in force or was not in force when a registration in beneficiary form was made is nevertheless presumed to be valid and authorized as a matter of contract law.

History. Acts 1993, No. 114, § 3.

28-14-104. Origination of registration in beneficiary form.

A security, whether evidenced by certificate or account, is registered in beneficiary form when the registration includes a designation of a beneficiary to take the ownership at the death of the owner or the deaths of all multiple owners.

History. Acts 1993, No. 114, § 4.

28-14-105. Form of registration in beneficiary form.

Registration in beneficiary form may be shown by the words “transfer on death” or the abbreviation “TOD,” or by the words “pay on death” or the abbreviation “POD,” after the name of the registered owner and before the name of a beneficiary.

History. Acts 1993, No. 114, § 5.

28-14-106. Effect of registration in beneficiary form.

The designation of a TOD beneficiary on a registration in beneficiary form has no effect on ownership until the owner's death. A registration of a security in beneficiary form may be cancelled or changed at any time by the sole owner or all then surviving owners without the consent of the beneficiary.

History. Acts 1993, No. 114, § 6.

Case Notes

Cited: Ginsburg v. Ginsburg, 359 Ark. 226, 195 S.W.3d 898 (2004).

28-14-107. Ownership on death of owner.

On death of a sole owner or the last to die of all multiple owners, ownership of securities registered in beneficiary form passes to the beneficiary or beneficiaries who survive all owners. On proof of death of all owners and compliance with any applicable requirements of the registering entity, a security registered in beneficiary form may be reregistered in the name of the beneficiary or beneficiaries who survived the death of all owners. Until division of the security after the death of all owners, multiple beneficiaries surviving the death of all owners hold their interests as tenants in common. If no beneficiary survives the death of all owners, the security belongs to the estate of the deceased sole owner or the estate of the last to die of all multiple owners.

History. Acts 1993, No. 114, § 7.

Case Notes

Jurisdiction.

In creditor's action to set aside an alleged fraudulent conveyance arising from a transfer-on-death (TOD) beneficiary designation, the circuit court erroneously ruled that the probate court had exclusive jurisdiction and that the circuit court lacked jurisdiction; under Ark. Const. Amend. 80, § 6, and the fact that, under the Uniform Transfer on Death Security Registration Act, § 28-14-101 et seq., the money transferred from the TOD account did not become part of the estate, the circuit court clearly had jurisdiction. Heritage Props. Ltd. P'ship v. Walt & Lee Keenihan Found., Inc., 2019 Ark. 371, 584 S.W.3d 685 (2019).

Separate Property.

Administratrix, wife of the decedent, who sought to divorce the decedent but reconciled shortly before the decedent's death, convinced the trial court the monies in a transfer-on-death account (TOD account) naming children from the decedent's former marriage as the beneficiaries was a fraudulent transfer; if the TOD account was owned by both the decedent and the administratrix, the administratrix could claim dower rights in the property, but decedent's children presented compelling facts that the account was separate property owned by the decedent, and the trial court erred in granting summary judgment in favor of the administratrix. Ginsburg v. Ginsburg, 353 Ark. 816, 120 S.W.3d 567 (2003).

Where decedent and his surviving spouse were married for only four years, the trial court did not clearly err in finding that the transfer-on-death (TOD) account was the sole and separate property of decedent's three children by a prior marriage as the named beneficiaries of the TOD account; the funds used to purchase the account were gained as the result of the sale of decedent's business, which he acquired before his marriage to the surviving spouse and continued to hold as his separate property during the course of the marriage, and the surviving spouse admittedly had no ownership interest in the business, nor was their commingling of any funds between the surviving spouse and the decedent once they were married. Ginsburg v. Ginsburg, 359 Ark. 226, 195 S.W.3d 898 (2004).

28-14-108. Protection of registering entity.

  1. A registering entity is not required to offer or to accept a request for security registration in beneficiary form. If a registration in beneficiary form is offered by a registering entity, the owner requesting registration in beneficiary form assents to the protections given to the registering entity by this chapter.
  2. By accepting a request for registration of a security in beneficiary form, the registering entity agrees that the registration will be implemented on death of the deceased owner as provided in this chapter.
  3. A registering entity is discharged from all claims to a security by the estate, creditors, heirs, or devisees of a deceased owner if it registers a transfer of the security in accordance with § 28-14-107 and does so in good faith reliance (i) on the registration, (ii) on this chapter, and (iii) on information provided to it by affidavit of the personal representative of the deceased owner, or by the surviving beneficiary or by the surviving beneficiary's representatives, or other information available to the registering entity. The protections of this chapter do not extend to a reregistration or payment made after a registering entity has received written notice from any claimant to any interest in the security objecting to implementation of a registration in beneficiary form. No other notice or other information available to the registering entity affects its right to protection under this chapter.
  4. The protection provided by this chapter to the registering entity of a security does not affect the rights of beneficiaries in disputes between themselves and other claimants to ownership of the security transferred or its value or proceeds.

History. Acts 1993, No. 114, § 8.

28-14-109. Nontestamentary transfer on death.

  1. A transfer on death resulting from a registration in beneficiary form is effective by reason of the contract regarding the registration between the owner and the registering entity and this chapter and is not testamentary.
  2. This chapter does not limit the rights of creditors of security owners against beneficiaries and other transferees under other laws of this state.

History. Acts 1993, No. 114, § 9.

Research References

Ark. L. Rev.

Isabelle V. Taylor, Comment: Creditor Rights and the Missing Link in the Arkansas Trust Code: Is Death Strong Enough “To Break the Chain?”, 65 Ark. L. Rev. 433 (2012).

Case Notes

Jurisdiction.

In creditor's action to set aside an alleged fraudulent conveyance arising from a transfer-on-death (TOD) beneficiary designation, the circuit court erroneously ruled that the probate court had exclusive jurisdiction and that the circuit court lacked jurisdiction; under Ark. Const. Amend. 80, § 6, and the fact that, under the Uniform Transfer on Death Security Registration Act, § 28-14-101 et seq., the money transferred from the TOD account did not become part of the estate, the circuit court clearly had jurisdiction. Heritage Props. Ltd. P'ship v. Walt & Lee Keenihan Found., Inc., 2019 Ark. 371, 584 S.W.3d 685 (2019).

Separate Property.

Where decedent and his surviving spouse were married for only four years, the trial court did not clearly err in finding that the transfer-on-death (TOD) account was the sole and separate property of decedent's three children by a prior marriage as the named beneficiaries of the TOD account; the funds used to purchase the account were gained as the result of the sale of decedent's business, which he acquired before his marriage to the surviving spouse and continued to hold as his separate property during the course of the marriage, and the surviving spouse admittedly had no ownership interest in the business, nor was their commingling of any funds between the surviving spouse and the decedent once they were married. Ginsburg v. Ginsburg, 359 Ark. 226, 195 S.W.3d 898 (2004).

Standing.

In creditor's action to set aside an alleged fraudulent conveyance arising from a transfer-on-death (TOD) beneficiary designation, the transferee's argument failed that the personal representative of the estate and not the creditor had standing for such an action; while there are procedures within the probate code that would allow for the challenge of an alleged fraudulent conveyance, this section concerning TODs plainly allows creditors to pursue their claims against transferees under other Arkansas laws, and thus a creditor also may pursue its claim under the Fraudulent Transfers Act, § 4-59-201 et seq.Heritage Props. Ltd. P'ship v. Walt & Lee Keenihan Found., Inc., 2019 Ark. 371, 584 S.W.3d 685 (2019) (decided under pre-2017 version of § 4-59-201 et seq.).

28-14-110. Terms, conditions, and forms for registration.

  1. A registering entity offering to accept registrations in beneficiary form may establish the terms and conditions under which it will receive requests (i) for registrations in beneficiary form, and (ii) for implementation of registrations in beneficiary form, including requests for cancellation of previously registered TOD beneficiary designations and requests for reregistration to effect a change of beneficiary. The terms and conditions so established may provide for proving death, avoiding or resolving any problems concerning fractional shares, designating primary and contingent beneficiaries, and substituting a named beneficiary's descendants to take in the place of the named beneficiary in the event of the beneficiary's death. Substitution may be indicated by appending to the name of the primary beneficiary the letters LDPS, standing for “lineal descendants per stirpes.” This designation substitutes a deceased beneficiary's descendants who survive the owner for a beneficiary who fails to so survive, the descendants to be identified and to share in accordance with the law of the beneficiary's domicile at the owner's death governing inheritance by descendants of an intestate. Other forms of identifying beneficiaries who are to take on one or more contingencies, and rules for providing proofs and assurances needed to satisfy reasonable concerns by registering entities regarding conditions and identities relevant to accurate implementation of registrations in beneficiary form, may be contained in a registering entity's terms and conditions.
  2. The following are illustrations of registrations in beneficiary form which a registering entity may authorize:
    1. Sole owner-sole beneficiary: John S Brown TOD (or POD) John S Brown Jr.
    2. Multiple owners-sole beneficiary: John S Brown Mary B Brown JT TEN TOD John S Brown Jr.
    3. Multiple owners-primary and secondary (substituted) beneficiaries: John S Brown Mary B Brown JT TEN TOD John S Brown Jr SUB BENE Peter Q Brown or John S Brown Mary B Brown JT TEN TOD John S Brown Jr LDPS.

History. Acts 1993, No. 114, § 10.

28-14-111. Short title — Rules of construction.

  1. This chapter shall be known as and may be cited as the “Uniform TOD Security Registration Act.”
  2. This chapter shall be liberally construed and applied to promote its underlying purposes and policy and to make uniform the laws with respect to the subject of this chapter among states enacting it.
  3. Unless displaced by the particular provisions of this chapter, the principles of law and equity supplement its provisions.

History. Acts 1993, No. 114, § 11.

28-14-112. Application of act.

This act applies to registrations of securities in beneficiary form made before or after August 13, 1993, by decedents dying on or after August 13, 1993.

History. Acts 1993, No. 114, § 12.

Meaning of “this act”. Acts 1993, No. 114, codified as §§ 28-14-10128-14-112.

Case Notes

Cited: Ginsburg v. Ginsburg, 359 Ark. 226, 195 S.W.3d 898 (2004).

Chapters 15-23 [Reserved.]

[Reserved]

Subtitle 3. Wills

Chapter 24 General Provisions

Research References

Ark. L. Rev.

Acts 1949 General Assembly — Act 140 The Probate Code, 3 Ark. L. Rev. 375.

28-24-101. Contracts affecting the devise of property.

  1. A valid agreement made by a testator to convey property devised in a will previously made shall not revoke the previous devise, but the property shall pass by the will subject to the same remedies on the agreement against the devisee as might have been enforced against the decedent if he or she had survived.
    1. However, 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:
      1. Provisions of a will stating material provisions of the contract;
      2. An express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or
      3. A writing signed by the decedent evidencing the contract.
    2. The execution of a reciprocal or mutual will does not create a presumption of a contract not to revoke the will.

History. Acts 1949, No. 140, § 28; 1981, No. 658, § 1; A.S.A. 1947, § 60-412.

Research References

U. Ark. Little Rock L.J.

Brantley and Effland, Inheritance, The Share of the Surviving Spouse, and Wills: Arkansas Law and the Uniform Probate Code Compared, 3 U. Ark. Little Rock L.J. 361.

Legislative Survey, Decedents' Estates, 4 U. Ark. Little Rock L.J. 591.

Case Notes

Applicability.

This section does not control a purported agreement to make a will made before 1981. Jones v. Abraham, 58 Ark. App. 17, 946 S.W.2d 711 (1997).

Breach of Contract Not to Revoke.

Section 23-32-1005 [23-32-207] does not preclude the establishment of a constructive trust when a contract not to revoke a will has been properly established and the money in a survivorship account has been transferred in violation of such a contract. Avance v. Richards, 331 Ark. 32, 959 S.W.2d 396 (1998).

Breach of Contract to Devise.

In suit for specific performance of oral contract to leave property to plaintiff, plaintiff's remedy is not against estate, but against devisees of the property, and a court of equity is the proper forum for a suit for specific performance. Morton v. Yell, 239 Ark. 195, 388 S.W.2d 88 (1965).

Constructive Trust.

A constructive trust may be imposed despite the statute of frauds, because implied trusts, such as constructive trusts or resulting trusts, are specifically exempted from its application. Cole v. Rivers, 43 Ark. App. 123, 861 S.W.2d 551 (1993).

Creation of Revocable Will.

Wife had the power to amend her will and trust after the husband's death as the parties had not intended for the trust to be irrevocable, thereby negating the argument that reciprocal wills were created. Cason v. Lambert, 2015 Ark. App. 41, 454 S.W.3d 250 (2015).

Evidence.

Contract to make a will not shown where the 1976 wills permitted discretionary disposition of personal property, did not contain words like “agreement to make mutual wills” or “agreeing that the survivor leaves his property to the heirs listed,” and the other evidence presented was not clear, cogent, and convincing of the existence of such a contract. Avance v. Richards, 331 Ark. 32, 959 S.W.2d 396 (1998).

The chancellor's decision that there was no valid contract to make the appellant a beneficiary of the decedent's will was not clearly erroneous, notwithstanding testimony that after the decedent made the appellant the beneficiary of his will in October 1996, she agreed to keep house for him, cook his meals and take care of him, since neither that 1996 will nor the 1997 will at issue contained a statement of the material provisions of a contract between the decedent and the appellant and neither will contained an express reference to a contract between them. Hodges v. Cannon, 68 Ark. App. 170, 5 S.W.3d 89 (1999).

Circuit court did not clearly err in finding that there was no contractual agreement between a husband and wife to make their trusts irrevocable where there was no writing to that effect, both husband and wife reserved the right to amend, modify, or revoke the trusts in whole or in part at any time, and the only evidence supporting the contention that the husband executed an irrevocable trust came from witnesses related to the wife. Holmes v. Potter, 2017 Ark. App. 378, 523 S.W.3d 397 (2017).

Writing Signed by Decedent.

The grant of a summary judgment against heirs was proper where settlement agreement was a valid, enforceable contract which the decedent's guardian had the authority to enter into on her behalf. Hardie v. Estate of Davis, 312 Ark. 189, 848 S.W.2d 417 (1993).

Cited: Morris v. Cullipher, 299 Ark. 204, 772 S.W.2d 313 (1989); Mabry v. McAfee, 301 Ark. 268, 783 S.W.2d 356 (1990).

28-24-102. Sale of property devised by ward not an ademption.

In case of a guardian's sale or other transfer of any real or personal property specifically devised by a ward who was competent to make the will, but was incompetent at the time of the sale or transfer and never became competent thereafter, so that the devised property is not contained in the estate at the time of the ward's death, the devisee may, at his or her option, take the value of the property at the time of the ward's death with the incidents of a general devise or take the proceeds thereof with the incidents of a specific devise.

History. Acts 1949, No. 140, § 30; A.S.A. 1947, § 60-414.

Research References

U. Ark. Little Rock L.J.

Brantley and Effland, Inheritance, The Share of the Surviving Spouse, and Wills: Arkansas Law and the Uniform Probate Code Compared, 3 U. Ark. Little Rock L.J. 361.

Chapter 25 Execution And Revocation

Effective Dates. Acts 1955, No. 106, § 3: Feb. 24, 1955. Emergency clause provided: “It is hereby determined by the General Assembly that many of the Probate Courts of this State are faced with crowded dockets and that the immediate passage of this Act will relieve such Courts of much of the time consumed in probating uncontested wills and will thereby expedite the administration of justice. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall take effect and be in full force from and after its passage and approval.”

Research References

ALR.

Establishment and effect, after death of one of the makers of joint, mutual, or reciprocal will, of agreement not to revoke will. 17 A.L.R.4th 167.

Revocation of prior will by revocation clause in lost will or other lost instrument. 31 A.L.R.4th 306.

Holographic wills: requirement that will be entirely in testator's handwriting as affected by appearance of some printed or written matter not in testator's handwriting. 37 A.L.R.4th 528.

Sufficiency of provision for, or reference to, prospective spouse to avoid lapse or revocation of will by subsequent marriage. 38 A.L.R.4th 117.

Electronic tape recording as will. 42 A.L.R.4th 176.

Am. Jur. 79 Am. Jur. 2d, Wills, §§ 4-149, 170-311, and § 467 et seq.

Ark. L. Rev.

Acts 1949 General Assembly — Act 140 The Probate Code, 3 Ark. L. Rev. 375.

Case Notes — Wills — Integration and Revocation — Separate Instruments as One Will, 11 Ark. L. Rev. 196.

C.J.S. 95 C.J.S., Wills, § 3 et seq.

U. Ark. Little Rock L.J.

A Critical Analysis of the Arkansas Death With Dignity Act, Simpson and Armbrust, 1 U. Ark. Little Rock L.J. 473.

Brantley and Effland, Inheritance, The Share of the Surviving Spouse, and Wills: Arkansas Law and the Uniform Probate Code Compared, 3 U. Ark. Little Rock L.J. 361.

Averill & Brantley, A Comparison of Arkansas's Current Law Concerning Succession, Wills, and Other Donative Transfers with Article II of the 1990 Uniform Probate Code, 17 U. Ark. Little Rock L.J. 631.

28-25-101. Who may make wills.

Any person of sound mind eighteen (18) years of age or older may make a will.

History. Acts 1949, No. 140, § 17; A.S.A. 1947, § 60-401.

Cross References. Aliens may devise property, § 18-11-101.

Separate property of femme covert devised by her as if she were a femme sole, Ark. Const., Art. 9, § 7.

Research References

Ark. L. Rev.

Comment — A Survey of Testamentary Capacity — Proof, 11 Ark. L. Rev. 84.

Case Notes

Construction.

Although at the time of the execution of a will a statute provided that a woman under age 21 had no power to execute a will conveying real property, will executed by executor when she was only 18 years old was valid and properly probated where, prior to her death, the statute was changed to provide validity for wills of persons of 18 years of age who were in their right mind. Hardy v. Ross, 237 Ark. 76, 371 S.W.2d 522 (1963).

Burden of Proof.

Under the issue of devisavit vel non, where the inquiry is whether the testator was of sound and disposing mind and free from undue influence at the time of executing the will, the burden of proof is on the plaintiff. Jenkins v. Tobin, 31 Ark. 306 (1876) (decision under prior law).

In an action to contest a will, the burden of proof is on the contestant who asserts the mental incapacity of the testator. Shippen v. Shippen, 213 Ark. 517, 211 S.W.2d 433 (1948) (decision under prior law).

Delusions.

The test of testamentary capacity is the same in the case of an insane delusion as in the case of dementia. Taylor v. McClintock, 87 Ark. 243, 112 S.W. 405 (1908) (decision under prior law).

Exclusion of Will Contestants.

Since the testator may leave his property to anyone he chooses, he is at liberty to exclude from his bounty those beneficiaries who unsuccessfully seek to thwart his testamentary wishes. Lytle v. Zebold, 235 Ark. 17, 357 S.W.2d 20 (1962).

Moral Insanity.

Moral insanity, manifested in jealousy, anger, hate, resentment, or other perversion of the sentiment or affections, however violent or unnatural, will not defeat a will unless it is the emanation of a delusion. Taylor v. McClintock, 87 Ark. 243, 112 S.W. 405 (1908) (decision under prior law).

Old Age.

A testator's old age, physical incapacity, and partial eclipse of the mind will not invalidate his will if he has sufficient capacity to remember the extent and condition of his property and who are his beneficiaries and to appreciate the desserts of his relatives. Griffin v. Union Trust Co., 166 Ark. 347, 266 S.W. 289 (1924) (decision under prior law).

That an aged testator's memory was failing or that his judgment was vacillating or that he was becoming eccentric or that his mind was not as active as formerly does not invalidate the will if it was fairly made and was free from undue influence. Pernot v. King, 194 Ark. 896, 110 S.W.2d 539 (1937) (decision under prior law).

Review.

Where the finding of mental incompetency of testator is not against the preponderance of the testimony, the decree will be affirmed. Boyland v. Boyland, 211 Ark. 925, 203 S.W.2d 192 (1947) (decision under prior law).

Tests of Capacity.

The capacity to make a will is of such a degree of reason and judgment as to enable the party to comprehend the subject. Kelly's Heirs v. McGuire, 15 Ark. 555 (1855); Abraham v. Wilkins, 17 Ark. 292 (1856) (decision under prior law).

The capacity to make a will is such as requires sufficient mind to contract, free from such undue influences as constrain the party to act against his will or subdue the will until it ceases to act for itself and acts under the dictates of the will of another. Tobin v. Jenkins, 29 Ark. 151 (1874) (decision under prior law).

The test of testamentary capacity is that the testator shall have the capacity to retain in memory, without prompting, the extent and condition of his property, to comprehend to whom he is giving it, and to appreciate the desserts and relation to him of others whom he excludes from participation in his estate. Taylor v. McClintock, 87 Ark. 243, 112 S.W. 405 (1908) (decision under prior law).

It was error, in a will contest, to instruct the jury that a testator in order to be capable of making a will must have “a full knowledge of the property he possesses”; rather, the true test with respect to his property was not whether he knew, but whether he was mentally capable of knowing, what property he possessed. Huffaker v. Beers, 95 Ark. 158, 128 S.W. 1040 (1910) (decision under prior law).

28-25-102. Witnesses.

  1. 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.
  2. 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 or her as in the aggregate exceeds in value, as of the date of the testator's death, what he or she would have received had the testator died intestate.
  3. No attesting witness is interested unless the will gives to him or her some beneficial interest by way of devise.
  4. An attesting witness, even though interested, may be compelled to testify with respect to the will.

History. Acts 1949, No. 140, § 18; A.S.A. 1947, § 60-402.

Case Notes

Age of Witness.

The requirement that an attesting witness must be 18 years of age or older is unequivocal and leaves no room for judicial interpretation or substantial compliance. Norton v. Hinson, 337 Ark. 487, 989 S.W.2d 535 (1999).

Attestation.

Where an attestation is dated one month earlier than a will, the will is still valid if there is no dispute that the will was signed by the testator and attested by the witnesses on the same date. Miller v. Mitchell, 224 Ark. 585, 275 S.W.2d 3 (1955).

Attorney.

Although the law firm with which he was associated was named to represent the estate, attorney signing will as one of two attesting witnesses was qualified, no beneficial interest having been devised to him. Rosenbaum v. Cahn, 234 Ark. 290, 351 S.W.2d 857 (1961).

Attorney who drafted will and witnessed it, but who was not named in the will, was competent to testify as an attesting witness. Sullivant v. Sullivant, 236 Ark. 95, 364 S.W.2d 665 (1963).

Beneficiary Not a Witness.

A beneficiary who is not an attesting witness may testify. Strickland v. Smith, 131 Ark. 350, 198 S.W. 690 (1917) (decision under prior law).

Executor as Witness.

The executor of a will, as a rule, is competent as a subscribing witness to its execution, as his interest is derived from the statute and not from the will itself, the word “appointment” referring to some appointment coupled with a beneficial interest. Fontaine v. Fontaine, 169 Ark. 1077, 277 S.W. 867 (1925) (decision under prior law).

Husband and Wife.

Husband who is one of the subscribing witnesses to a will is not disqualified from testifying as to its due execution before the probate court because of the fact that his wife is a legatee, since statute rendering husband or wife incompetent from testifying for or against each other in civil actions does not apply to probate of wills. Rockafellow v. Rockafellow, 192 Ark. 563, 93 S.W.2d 321 (1936) (decision under prior law).

Subscribing witness to will whose wife was beneficiary thereunder was competent witness in proceeding to contest the will where wife had previously disclaimed her testamentary bequest and was no longer a party to the suit. Rockafellow v. Rockafellow, 192 Ark. 563, 93 S.W.2d 321 (1936) (decision under prior law).

Signed by Mark.

A will is valid as properly executed by substantial compliance with the statutes where the testator signs it with his mark and an unknown person writes the testator's name next to his mark and there are three attesting witnesses. Miller v. Mitchell, 224 Ark. 585, 275 S.W.2d 3 (1955).

Voluntary Release.

One of the necessary subscribing or attesting witnesses to a will who is a beneficiary therein may become competent by voluntarily releasing his bequest. Rockafellow v. Rockafellow, 192 Ark. 563, 93 S.W.2d 321 (1936) (decision under prior law).

Cited: Parker v. Parker, 237 Ark. 942, 377 S.W.2d 160 (1964).

28-25-103. Execution generally.

  1. The execution of a will, other than holographic, must be by the signature of the testator and of at least two (2) witnesses.
    1. The testator shall declare to the attesting witnesses that the instrument is his or her will and either:
      1. Himself or herself sign;
      2. Acknowledge his or her signature already made;
      3. Sign by mark, his or her name being written near it and witnessed by a person who writes his or her own name as witness to the signature; or
        1. At his or her discretion and in his or her presence have someone else sign his or her name for him or her.
        2. The person so signing shall write his or her own name and state that he or she signed the testator's name at the request of the testator.
    2. In any of the cases listed in subdivision (b)(1) of this section:
      1. The signature must be at the end of the instrument; and
      2. The act must be done in the presence of two (2) or more attesting witnesses.
  2. The attesting witnesses must sign at the request and in the presence of the testator.

History. Acts 1949, No. 140, § 19; A.S.A. 1947, § 60-403.

Research References

Ark. L. Rev.

Andrew L. Lawson, “Body” Building: Expanding Arkansas's Standard for Holographic Wills, 71 Ark. L. Rev. 917 (2019).

U. Ark. Little Rock L.J.

Note, Validity of Signature for Attested Wills, 4 U. Ark. Little Rock L.J. 139.

Case Notes

In General.

The purpose of the law relating to the execution of wills is to protect testamentary conveyances against fraud and deception and not to impede them by technicalities. Hanel v. Springle, 237 Ark. 356, 372 S.W.2d 822 (1963).

Construction.

The requirements for establishing an attested will must be read together and construed to permit establishment of the will by any legally admissible evidence or requisite facts in order that the testatrix's wishes may not be thwarted by straightlaced construction of statutory language where there is no indication of fraud, deception, imposition, or undue influence. Green v. Holland, 9 Ark. App. 233, 657 S.W.2d 572 (1983).

Where there is no indication of fraud, deception, undue influence, or imposition, a court may avoid a strict technical construction of the statutory requirements in order to give effect to the testator's wishes. Faith v. Singleton, 286 Ark. 403, 692 S.W.2d 239 (1985).

This section is mandatory in order to validate a nonholographic will. Shamoon v. Tombridge, 291 Ark. 222, 723 S.W.2d 827 (1987).

Acknowledgment by Testator.

Testator's statement to attesting witness that the instrument was his will raises presumption, in the absence of proof to the contrary, that testator's signature was on the will and it was an acknowledgment to testator's subscription to the will in compliance with statutory requirements. Anthony v. College of Ozarks, 207 Ark. 212, 180 S.W.2d 321 (1944), superseded by statute as stated in, In re Estate of Sharp, 306 Ark. 268, 810 S.W.2d 952 (Ark. 1991) (decision under prior law).

If, without referring to instrument as his will, testator produces it with his signature visible, and requests witness to sign it, this is a sufficient acknowledgment. Anthony v. College of Ozarks, 207 Ark. 212, 180 S.W.2d 321 (1944), superseded by statute as stated in, In re Estate of Sharp, 306 Ark. 268, 810 S.W.2d 952 (Ark. 1991) (decision under prior law).

Testator may acknowledge his signature by his acts and gestures, without making any express acknowledgment of the signature in words. Anthony v. College of Ozarks, 207 Ark. 212, 180 S.W.2d 321 (1944), superseded by statute as stated in, In re Estate of Sharp, 306 Ark. 268, 810 S.W.2d 952 (Ark. 1991) (decision under prior law).

The fact of publication can be inferred from all of the circumstances attending the execution of the will; a testator may acknowledge his signature by acts and gestures without expressing it in words. Green v. Holland, 9 Ark. App. 233, 657 S.W.2d 572 (1983).

Once the signing of a will is proven by two attesting witnesses, and there is no suggestion of fraud or undue influence, there is a presumption that the testator declared to the attesting witnesses that the instrument was his will; and that he either signed in front of them or acknowledged to them his signature on the instrument; and that the attesting witnesses signed at the request of and in the presence of the testator. In re Estate of Sharp, 306 Ark. 268, 810 S.W.2d 952 (Ark. 1991).

Trial court did not err in finding substantial compliance with the requirement of declaring one's will to the witnesses where, even had the decedent not declared to one of the witnesses that it was her last will and testament, nor had she specifically asked either witness to sign it, the witness was standing by as the handwritten document was read back to the decedent, and the witness understood the document to have been the decedent's last will and testament. Fischer v. Kinzalow, 88 Ark. App. 307, 198 S.W.3d 555 (2004).

Attestation by Witnesses.

Previously it was held that it was not necessary that witnesses to a will subscribe in the presence, actual or constructive, of the testator. Abraham v. Wilkins, 17 Ark. 292 (1856) (decision under prior law).

An attesting witness to a will may subscribe by mark, although the person who writes the name fails to sign his name as a witness in fact. Davis v. Semmes, 51 Ark. 48, 9 S.W. 434 (1888) (decision under prior law).

A will was duly executed where it was subscribed in the presence of one attesting witness and then taken by the testator to a justice of the peace to whom he pointed out his signature, declared the writing to be his will, and procured the justice to sign and certify the will in his official capacity. The certificate, though superfluous, did not vitiate the attestation by the justice. Payne v. Payne, 54 Ark. 415, 16 S.W. 1 (1891) (decision under prior law).

A will cannot be admitted to probate where the signature of the testator is attested by only one witness. Johnson v. Hinton, 130 Ark. 394, 197 S.W. 706 (1917) (decision under prior law).

A will signed by a mark in the presence of justice of peace who did not write his own name as witness and by two witnesses out of the presence of the testator and not at her request was held invalid. Graves v. Bowles, 193 Ark. 546, 101 S.W.2d 176 (1937) (decision under prior law).

A will signed by one witness who was a total stranger to testator and to other witness several days after it was executed by testator and signed by the other witness was rejected as not having been properly attested. Hendry v. Wilson, 202 Ark. 580, 151 S.W.2d 683 (1941) (decision under prior law).

Where an attestation is dated one month earlier than a will, the will is still valid if there is no dispute that the will was signed by the testator and attested by the witnesses on the same date. Miller v. Mitchell, 224 Ark. 585, 275 S.W.2d 3 (1955).

There has never been any requirement in Arkansas that the two witnesses to a will sign in the presence of each other, and this section has not changed the law in that respect. Coleman v. Walls, 241 Ark. 842, 410 S.W.2d 749 (1967); Upton v. Upton, 26 Ark. App. 78, 759 S.W.2d 811 (1988).

Although the will probably qualified as a holographic will, since it was signed at the end by the testator, in the presence of two attesting witnesses as required by this section, the evidence was sufficient to establish the will as an attested will. Walpole v. Lewis, 254 Ark. 89, 492 S.W.2d 410 (1973).

Where the testator signs his will with an “X”, this section requires a minimum of three subscribing witnesses to make the will in question valid. Shamoon v. Tombridge, 291 Ark. 222, 723 S.W.2d 827 (1987).

Statutory formalities specifically required the testatrix, who signed by a mark, to have a witness who signed the document attesting to her mark and two attesting witnesses to sign at end of the instrument to constitute a validly executed will; although three witnesses attested to the execution of the will, the will did not refer to any witness as being a special witness to the mark, and therefore, the will was invalid because the writing of the testatrix's name by the witness to the mark was not done in the presence of two attesting witnesses. Smith v. Wharton, 349 Ark. 351, 78 S.W.3d 79 (2002).

Witness was within the range of the testator's senses while in an adjacent room with the door open to the testatrix's bedroom; thus, he was in the presence of the testator at the time he subscribed his name to the testatrix's will. Conner v. Donahoo, 85 Ark. App. 43, 145 S.W.3d 395 (2004).

Attorney as Witness.

An attorney who drafted a will and witnessed it, but who was not named in the will, was competent to testify as an attesting witness. Sullivant v. Sullivant, 236 Ark. 95, 364 S.W.2d 665 (1963).

Blind Persons.

Where a blind person held the pen and another guided her hand in signing her will, the signature was the act of the testator, and it was not necessary for the person guiding her hand to sign the will as an attesting witness to the signature. Coleman v. Walls, 241 Ark. 842, 410 S.W.2d 749 (1967).

A will signed by blind person by mark with assistance from the sole beneficiary and witnessed by two other people is valid. Patrick v. Rankin, 256 Ark. 310, 506 S.W.2d 853 (1974).

Burden of Proof.

Production of a written paper purporting to be the will of a deceased person which is rational on its face, and which is proved to have been executed and witnessed in accordance with statutory requirements makes a prima facie case and devolves upon the contestants the onus of showing the testator's incompetency. Gray v. Fulton, 205 Ark. 675, 170 S.W.2d 384 (1943) (decision under prior law).

When surviving son offered the will for probate, he had the burden of proving the genuineness of the signatures. Where he made such proof and the will was admitted to probate, the appellants who sought to contest the will within the six-month period had the burden of sustaining the contest on the alleged ground that the signatures to the will were a forgery. Ross v. Edwards, 231 Ark. 902, 333 S.W.2d 487 (1960).

Declaration of Testator.

The testator is not required to use any particular words in declaring an instrument to be his last will and testament. Evans v. Evans, 193 Ark. 585, 101 S.W.2d 435 (1937) (decision under prior law).

Evidence Generally.

Evidence supported finding of probate court that will offered for probate was executed in accordance with this section. Edwards v. Knowles, 225 Ark. 1024, 287 S.W.2d 449 (1956); Upton v. Upton, 26 Ark. App. 78, 759 S.W.2d 811 (1988).

Parol evidence may not be introduced by the witness to a testator's mark to supply the deficiency of the required additional witness' signature. Green v. Smith, 236 Ark. 829, 368 S.W.2d 280 (1963).

Evidence of Testamentary Intent.

Where a written instrument was executed as a will but only one witness signed it and the instrument, along with two letters written by the deceased to his wife, was offered for probate on the ground that purported typewritten will became part of a valid will when coupled with the letters written by the deceased in his own handwriting to his wife, court erred in overruling demurrer to petition to probate where there was no evidence whatever to the effect that he intended that either the letter should constitute a will or that it be used in connection with any other document or instrument so as to constitute a will. Smith v. Nelson, 227 Ark. 512, 299 S.W.2d 645 (1957).

It is not necessary that deceased specifically request the witnesses to sign his will. Thus where a deceased's actions showed that he knew he was making a will, that he was asked if he wanted any of his property to go to a certain person and he explained why he did not, and that he signed the instrument in front of the witnesses and permitted them to sign as witnesses, the statutory provisions were substantially complied with. Hanel v. Springle, 237 Ark. 356, 372 S.W.2d 822 (1963).

Where a document sets forth no words of a dispositive nature, it is defective on its face because it lacks the required intent to make a will, and extrinsic evidence is not admissible to prove the necessary intent. Dunn v. Means, 304 Ark. 473, 803 S.W.2d 542 (1991).

Failure to Comply.

Where a testator's name is signed to a will by his direction and he does nothing more thereby adopting such signature as his subscription, the person so signing for the testator must also write his own name as a witness and state that he signed the testator's name at his request. Statutory provisions did not apply, however, where the testator signed himself by making his mark. In re Will of Cornelius, 14 Ark. 675 (1854); Guthrie v. Price, 23 Ark. 396 (1861) (decision under prior law).

Where testator's name is signed by another at his request and the testator then signs by mark and the other person signing testator's name does not subscribe his own name as required, it is necessary that the genuineness of the signature by mark be established by other means. Hightower v. Hightower, 128 Ark. 95, 193 S.W. 518 (1917) (decision under prior law).

Holographic Will.

Where the decedent's unaltered, handwritten will, which was signed by him and witnessed by one witness was found to be a holographic will which was valid pursuant to § 28-25-104, it was not necessary to further test the will's validity as an attested will under this section since a holographic will can satisfy the requirements of both sections. Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981).

Mandatory Nature.

The validity of a will depends on compliance with statutory requirements rather than on the good memory of one of the witnesses. Evans v. Evans, 193 Ark. 585, 101 S.W.2d 435 (1937) (decision under prior law).

Notary as Witness.

Where will was signed by decedent with an “X” and attested by two witnesses and a proof of will was acknowledged by a notary public, the notary public's signature on the proof of will form did not amount to a third signature. Shamoon v. Tombridge, 291 Ark. 222, 723 S.W.2d 827 (1987).

Presumption of Due Execution.

Although no presumption of due execution of a will arises from the mere production of an instrument purporting to be a will, if it appears to have been duly executed and the attestation is established by the witnesses to its execution, although they do not remember the transaction, it will be presumed, in the absence of evidence to the contrary, that the will was executed in compliance with the requirements of law including those as to attestation in the presence of the testator and affixing the testator's signature prior to those of the witnesses. Green v. Holland, 9 Ark. App. 233, 657 S.W.2d 572 (1983); Upton v. Upton, 26 Ark. App. 78, 759 S.W.2d 811 (1988).

Proof of Execution.

Execution of a will may be sufficiently proved where one witness testifies positively to the requisites of execution, though another does not recall some of the requisites, especially where testimony is given several years after execution of the will. Evans v. Evans, 193 Ark. 585, 101 S.W.2d 435 (1937) (decision under prior law).

No presumption of due execution arises from mere production of an instrument purporting to be a last will and testament, but where the instrument appears to have been duly executed as a will, and the attestation is established by proof of the handwriting of the witnesses or otherwise, although their testimony is not available, or they do not remember the transaction, it will be presumed, in the absence of evidence to the contrary, that the will was executed in compliance with all the requirements of law. Anthony v. College of Ozarks, 207 Ark. 212, 180 S.W.2d 321 (1944), superseded by statute as stated in, In re Estate of Sharp, 306 Ark. 268, 810 S.W.2d 952 (Ark. 1991) (decision under prior law).

Publication.

The requirement that the testator declare the instrument to be a will is called publication; it is not required that a testator recite precisely the words “this is my will,” although that is the preferred practice; rather, publication can be inferred from actions and circumstances. Faith v. Singleton, 286 Ark. 403, 692 S.W.2d 239 (1985).

Republication.

A codicil, duly executed, will operate as a republication of an earlier will although the earlier will was inoperative or imperfectly executed or attested. Rogers v. Agricola, 176 Ark. 287, 3 S.W.2d 26 (1928) (decision under prior law).

Request of Testator.

It is not necessary that each witness should prove that both signed at the request of the testator. Rogers v. Diamond, 13 Ark. 474 (1853) (decision under prior law).

Each of the attesting witnesses must sign his name as a witness at the request of the testator; however, such a request may be inferred from the attendant circumstances, by signs, or by gestures, as well as words, as by the testator desiring the witness to be sent for to attest the execution of the will or from a request made to such witnesses by another person in the presence of the testator. Rogers v. Diamond, 13 Ark. 474 (1853) (decision under prior law).

Signature Generally.

Will was signed by testator and duly witnessed according to law where testimony by witnesses showed that testator requested witnesses for her will and duly signed the will in their presence and that witnesses then signed the will as witnesses in presence of testator. Meek v. Bledsoe, 221 Ark. 395, 253 S.W.2d 369 (1952).

Where the testator and both attesting witnesses were dead, all the contestants had to do was to prove that any one of the three signatures was a forgery in order to defeat probate since a valid will, other than a holographic one, must have two witnesses. Ross v. Edwards, 231 Ark. 902, 333 S.W.2d 487 (1960).

It is essential to due execution of a will that it be signed or subscribed by the number of witnesses required by law governing the particular will being made, and subscription by fewer renders the transaction a nullity. Ash v. Morgan, 232 Ark. 602, 339 S.W.2d 309 (1960).

While substantial compliance with the procedure in subdivision (b)(5) of this section has been held sufficient in some situations, it has never been extended to allow a witness to attest a will before the testator signs it and who in fact never sees the testator sign. Burns v. Adamson, 313 Ark. 281, 854 S.W.2d 723 (1993).

Signature of Testator.

A testator may sign his will by an abbreviation of his full name or merely by initials. Cartwright v. Cartwright, 158 Ark. 278, 250 S.W. 11 (1923) (decision under prior law).

Where contestants, in a proceeding to probate a will, denied that deceased signed the will, it was competent for them to prove that she did not sign because she could not write. Watts v. Tidwell, 178 Ark. 951, 12 S.W.2d 896 (1929) (decision under prior law).

The purpose of the requirement that subscription be at end of a will is to prevent fraud. Weems v. Smith, 218 Ark. 554, 237 S.W.2d 880 (1951) (decision under prior law).

The signature of the testator at the end of a holographic will is not requisite to its validity. Smith v. MacDonald, 252 Ark. 931, 481 S.W.2d 741 (1972).

Where the testator places his signature in the attestation clause because he believes that it belongs there and with the requisite testamentary intent, it constitutes a sufficient compliance with this section requiring the signature to be at the end. Scritchfield v. Loyd, 267 Ark. 24, 589 S.W.2d 557 (1979).

When a testator presents a will to a witness, the presumption is, in the absence of proof to the contrary, that the testator's signature is on the will; where there is clear evidence to the contrary, no presumption is permissible. Burns v. Adamson, 313 Ark. 281, 854 S.W.2d 723 (1993).

Signed by Mark.

A will is valid as properly executed by substantial compliance with the statutes where the testator signs it with his mark and an unknown person writes the testator's name next to his mark and there are three attesting witnesses. Miller v. Mitchell, 224 Ark. 585, 275 S.W.2d 3 (1955).

Where a will is signed by testator's mark, it is mandatory that a minimum of three signatures be attached, one to witness the testator's mark and two to attest the will. Green v. Smith, 236 Ark. 829, 368 S.W.2d 280 (1963).

Where a will is signed by testator's mark, the mark must be witnessed by the signature of the party who wrote the testator's name and the signatures of two attending witnesses. Green v. Smith, 236 Ark. 829, 368 S.W.2d 280 (1963).

One who witnesses the mark of a testator cannot also sign as a witness to the will. Priola v. Priola, 237 Ark. 798, 377 S.W.2d 29 (Ark. 1964).

Where testator made an “X” on his will and the drafting attorney then wrote testator's name next to the mark, after which two other witnesses signed the will as witnesses, the will was properly executed, since this section does not require that the person who writes the name of the testator near his mark must also sign as a witness to the signature or as a witness to the will itself. Neal v. Jackson, 2 Ark. App. 14, 616 S.W.2d 746 (1981).

Statutory Policy.

The policy of statutory requirements is to guard against frauds in the execution of wills. Anthony v. College of Ozarks, 207 Ark. 212, 180 S.W.2d 321 (1944), superseded by statute as stated in, In re Estate of Sharp, 306 Ark. 268, 810 S.W.2d 952 (Ark. 1991) (decision under prior law).

Subsequent Ex Parte Affidavit Inadmissible.

Where a testator signed a will by his mark and the party who signed his name failed to attest the signature by writing his own name as witness, an ex parte affidavit by the witness that he wrote the deceased's name for him and witnessed the making of his mark by the deceased is inadmissible; there then being no proof of the deceased's signature, the will is not entitled to probate. Hightower v. Hightower, 128 Ark. 95, 193 S.W. 518 (1917) (decision under prior law).

Validity of Execution.

Where neither of the alleged attesting witnesses signed in the presence of the testator, nor in the presence of each other, the will was not validly executed. Ash v. Morgan, 232 Ark. 602, 339 S.W.2d 309 (1960).

Where the record shows that the witnesses understood the paper signed was the will of testator and that he expected and desired them to sign as witnesses, and testator signed will in their presence and they signed as witnesses in the presence of the testator, there was substantial compliance with this section, although the witnesses could not say positively that testator actually said it was his will or that he literally requested them to sign it as witnesses. Hollingsworth v. Hollingsworth, 240 Ark. 582, 401 S.W.2d 555 (1966).

Where both witnesses to the execution of a will were unable to definitely testify that they saw the testator sign the will, but one witness testified that he did not believe that he would have signed the attestation clause unless decedent had signed the will in his presence and the other witness testified that he was “pretty sure” that he had seen decedent sign his name, the will was validly executed under this section. Pennington v. Pennington, 1 Ark. App. 311, 615 S.W.2d 391 (1981).

Where testator went to attorney's office for the specific purpose of making a will and did so and no one questioned the genuineness of her signature and where attorney's secretary and a client witnessed the will, trial court's determination that will was validly executed was not clearly erroneous even though witnesses could not specifically recall seeing testator sign the will. Green v. Holland, 9 Ark. App. 233, 657 S.W.2d 572 (1983).

Will which disinherited a party was valid because all of the elements of proper execution were met under subsections (a), (b), and (c) of this section. Also, testamentary capacity was present because when the will was executed the testatrix comprehended the nature and extent of her property and to whom she was giving it. Foster v. Foster, 2010 Ark. App. 594, 377 S.W.3d 497 (2010), rehearing denied, — Ark. App. —, — S.W.3d —, 2010 Ark. App. LEXIS 742 (Oct. 27, 2010), review denied, — Ark. —, — S.W.3d —, 2011 Ark. LEXIS 369 (Ark. Mar. 3, 2011).

Witness to Execution.

A witness signing testator's name may also attest will. Bocquin v. Theurer, 133 Ark. 448, 202 S.W. 845 (1918), superseded by statute as stated in, Priola v. Priola, 237 Ark. 798, 377 S.W.2d 29 (Ark. 1964) (decision under prior law).

Words Following Signature.

A will's validity is not affected by fact that superfluous or useless words follow a signature. Weems v. Smith, 218 Ark. 554, 237 S.W.2d 880 (1951) (decision under prior law).

Nontestamentary, nondispositive language appearing below the signature of the maker of a will, will not invalidate the instrument. Clark v. National Bank of Commerce, 304 Ark. 352, 802 S.W.2d 452 (1991).

Language appearing after signature on will which instructed two persons to dispense with described personal property of testatrix was administrative in nature, and not dispositive, and therefore there was no violation of subsection (b)(5). Clark v. National Bank of Commerce, 304 Ark. 352, 802 S.W.2d 452 (1991).

Cited: Ballard v. Beard, 238 Ark. 459, 382 S.W.2d 593 (1964); Nowak v. Etchieson, 241 Ark. 328, 408 S.W.2d 476 (1966); Warner v. Warner, 14 Ark. App. 257, 687 S.W.2d 856 (1985); Balletti v. Muldoon, 67 Ark. App. 25, 991 S.W.2d 633 (1999).

28-25-104. Holographic wills generally.

When the entire body of the will and the signature shall be written in the proper handwriting of the testator, the will may be established by the evidence of at least three (3) credible disinterested witnesses to the handwriting and signature of the testator, notwithstanding there may be no attesting witnesses to the will.

History. Acts 1949, No. 140, § 20; A.S.A. 1947, § 60-404.

Research References

Ark. L. Rev.

Wills — Proof of Testamentary Intent in Holographic Codicils, 25 Ark. L. Rev. 376.

Wills — Validity of Signature for Holographic Wills, 28 Ark. L. Rev. 521.

Andrew L. Lawson, “Body” Building: Expanding Arkansas's Standard for Holographic Wills, 71 Ark. L. Rev. 917 (2019).

U. Ark. Little Rock L. Rev.

Note, Wills — Holographic Wills and Testamentary Intent — Extrinsic Evidence is Inadmissible to Prove Testamentary Intent for Holographic Wills Lacking Words of Disposition. Edmundson v. Estate of Fountain, 27 U. Ark. Little Rock L. Rev. 545.

Case Notes

Applicability.

This section is not retroactive. Weems v. Smith, 218 Ark. 554, 237 S.W.2d 880 (1951).

Animus Testandi.

It is imperative that a holographic instrument asserted as a will should clearly show animus testandi before the instrument is declared by the courts to be a will. Smith v. Nelson, 227 Ark. 512, 299 S.W.2d 645 (1957).

When evidence supported finding that a holographic will was executed within a fairly short time prior to death of decedent who knew he had a serious coronary condition, it was sufficient to establish that will was testamentary in character and executed with testamentary intent. Chambers v. Younes, 240 Ark. 428, 399 S.W.2d 655 (1966).

An alleged holographic will consisting of a sketch on the back of a used envelope and setting forth no words of a dispositive nature was defective on its face because it lacked the required animus testandi, and thus extrinsic evidence was not admissible to prove the necessary intent. McDonald v. Petty, 262 Ark. 517, 559 S.W.2d 1 (1977).

Conflict of Laws.

Effect to be given to the probation of holographic will in another state in relation to property in this state must be decided in accordance with the laws of this state. McPherson v. McKay, 207 Ark. 546, 181 S.W.2d 685 (1944) (decision under prior law).

Effect of Codicils.

A typewritten instrument attested by only one witness, but subsequently referred to in a codicil in the handwriting of the testator, was given sufficient validity so that the two instruments were construed together. Rogers v. Agricola, 176 Ark. 287, 3 S.W.2d 26 (1928) (decision under prior law).

Holographic will, even if executed as a codicil to a prior will, would be ineffective insofar as there is conflict between the two wills. McPherson v. McKay, 207 Ark. 546, 181 S.W.2d 685 (1944) (decision under prior law).

Form of Instruments.

A will written and signed by the testator in his own proper handwriting without attesting witnesses is valid. Ex parte Horner, 27 Ark. 443 (1872) (decision under prior law).

A letter written by the decedent just before he committed suicide, being wholly in his handwriting and signed by him, in which he directed the disposition of his goods is such a will as may be established by the unimpeachable testimony of three disinterested witnesses as to his handwriting and signature. Arendt v. Arendt, 80 Ark. 204, 96 S.W. 982 (1906) (decision under prior law).

Instruments Constituting Holographic Wills.

Where disinterested and unimpeachable witnesses testified that will offered for probate was entirely in deceased's handwriting and the instrument stated on its face “this is my last will and testament,” and was of testamentary character, it was properly admitted to probate. Lunsford v. Hawkins, 203 Ark. 247, 156 S.W.2d 235 (1941) (decision under prior law).

Written and signed instrument addressed to specified church and containing language that “being of sound mind I give to this church for the purpose of educating youth to Christ all my possessions to be disposed or used as the Board of Stewards and the Minister sees fit” was testamentary in character and entitled to be admitted to probate as a holographic will. Barnard v. Methodist Church, 226 Ark. 144, 288 S.W.2d 595 (1956).

Probate court erred when it refused to admit a holographic will into probate; although the will did not contain specific testamentary language, the decedent's testamentary intent in the document was shown by the fact that it was captioned “Last Will,” the witnesses who signed the document believed it was a will, and the decedent had told her sister that she had a will. Edmondston v. Estate of Fountain, 84 Ark. App. 231, 137 S.W.3d 415 (2003), rev'd, Edmundson v. Estate of Fountain, 358 Ark. 302, 189 S.W.3d 427 (2004).

Judge's handwritten will, which was undated and contained blanks in the attestation clause, met the requirements of this section, which requires only that the entire body of the will be written in the testator's handwriting and signed; this section does not require a date or witnesses to attest execution. The four corners of the document demonstrated that the judge intended to make a testamentary disposition, as it was titled as a last will, it disposed of the judge's property, and was written entirely in the judge's own handwriting and signed at the bottom. Marcum v. Gibson (In re Estate of Bond), 2019 Ark. App. 241, 576 S.W.3d 38 (2019).

Instruments Not Constituting Wills.

A statement by a son in an unsigned postscript to a letter written to his father was not a valid holographic will. Borchers v. Borchers, 145 Ark. 426, 224 S.W. 729 (1920) (decision under prior law).

A probate court did not err in refusing to admit to probate a handwritten instrument as the holographic will of a decedent where the decedent had not signed the document at the end, where the document made no provision for decedent's wife, and where the document did not dispose of all of his property. Peevy v. Ritcheson, 261 Ark. 841, 552 S.W.2d 218 (1977).

Lost or Destroyed Instruments.

In a suit to establish a lost holographic will, the chancellor's finding that the letter offered as a will was not proved, was held not against the preponderance of the evidence. Sibley v. Patrick, 180 Ark. 131, 21 S.W.2d 170 (1929) (decision under prior law).

Where, after the testator's death, a holographic will was read to the heirs only and subsequently was wilfully destroyed by one of the heirs, the other heirs, though interested, were, under the circumstances, competent to prove the contents and signature. Middleton v. Middleton, 188 Ark. 1022, 68 S.W.2d 1003 (1934) (decision under prior law).

Precedence Over Prior Wills.

A holographic will takes precedence over a prior typewritten will since the enactment of the 1949 Probate Code. Smith v. Nelson, 227 Ark. 512, 299 S.W.2d 645 (1957).

Proof by Beneficiary.

A beneficiary in a holographic will may testify as to its execution. Sneed v. Reynolds, 166 Ark. 581, 266 S.W. 686 (1924) (decision under prior law).

Signature of Testator.

It is not provided, in Probate Code of 1949 that a holographic will has to be signed at end. Weems v. Smith, 218 Ark. 554, 237 S.W.2d 880 (1951).

Where testator's name is written in or upon some part of the will other than at the end thereof, in order to be a valid signature, it must be shown that the testator wrote his name where he did with the intention of authenticating or executing the instrument as his will. Nelson v. Texarkana Historical Soc'y & Museum, 257 Ark. 394, 516 S.W.2d 882 (1974).

Where the evidence showed that an instrument was in the handwriting of the testator and that she considered it as her will, it would be sheer speculation to assume that she intended her name in the body of the will to be her signature to it. Nelson v. Texarkana Historical Soc'y & Museum, 257 Ark. 394, 516 S.W.2d 882 (1974).

Validity.

Where a decedent's unaltered, handwritten will, which was signed by him and witnessed by one witness, was found to be a holographic will which was valid pursuant to this section, it was not necessary to further test the will's validity as an attested will under § 28-25-103, since a holographic will can satisfy the requirements of both sections. Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981).

Witnesses to Prove Will.

A witness to the handwriting and signature of an alleged testator is unimpeachable where there is no evidence reflecting on his character or testimony. Arendt v. Arendt, 80 Ark. 204, 96 S.W. 982 (1906); Smith v. Boswell, 93 Ark. 66, 124 S.W. 264 (1909) (decision under prior law).

An unimpeachable witness is one whom the jury finds to have spoken truthfully and whose conclusion they find to be correct, though there is other evidence tending to contradict him. Murphy v. Murphy, 144 Ark. 429, 222 S.W. 721 (1920) (decision under prior law).

In a proceeding to establish a lost holographic will, it is immaterial that the witnesses to the contents and handwriting are interested if there is no question that the document and signature were written by the testator. Middleton v. Middleton, 188 Ark. 1022, 68 S.W.2d 1003 (1934) (decision under prior law).

Where in a proceeding to probate a will, a number of witnesses testify that the instrument is in the handwriting of the deceased, and there is nothing in the record to the contrary, they will be regarded as unimpeachable witnesses. Lunsford v. Hawkins, 203 Ark. 247, 156 S.W.2d 235 (1941) (decision under prior law).

A credible witness to a holographic will is one who is competent and who is worthy of belief. Sanders v. Abernathy, 221 Ark. 407, 253 S.W.2d 351 (1952).

Trial court erred in denying probate of a holographic will on the ground that evidence presented did not meet requirements necessary to establish holographic will where four renters from deceased and two banking officials testified that will was in handwriting of the deceased. Sanders v. Abernathy, 221 Ark. 407, 253 S.W.2d 351 (1952).

Trial court did not err in finding that the requirements of this section had been satisfied because two witnesses, in addition to the grandson who was challenging the codicil, professed sufficient knowledge about decedent's printing and testified that the codicil was written in what appeared to be decedent's handwriting. Minton v. Minton, 2010 Ark. App. 310, 374 S.W.3d 818 (2010), review denied, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 441 (Sept. 23, 2010).

Cited: Odom v. Travelers Ins. Co., 174 F. Supp. 426 (W.D. Ark. 1959); Smith v. MacDonald, 252 Ark. 931, 481 S.W.2d 741 (1972).

28-25-105. Foreign execution.

A will executed outside this state in a manner prescribed by §§ 28-25-10128-25-104 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 in compliance with the provisions of §§ 28-25-10128-25-104.

History. Acts 1949, No. 140, § 21; A.S.A. 1947, § 60-405.

Case Notes

Applicability.

Decedent's holographic will, executed during his residency in Alberta, Canada, was subject to the laws of Arkansas in the ancillary probate proceedings instituted there; hence, the will was subject to the Arkansas law regarding pretermitted children. Craig v. Carrigo, 353 Ark. 761, 121 S.W.3d 154 (2003).

Proof of Execution.

The formality essential to the execution of a will will be tested either by the law of the place of its execution or of the place of the testator's domicile; proof of valid execution, however, is referable to Arkansas' statutes because the proponent seeks to have the will initially probated in this state, and on questions of the burden of proof, the law of the forum governs. Warner v. Warner, 14 Ark. App. 257, 687 S.W.2d 856 (1985).

28-25-106. Affidavit of attesting witness.

  1. 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 or she would be required to testify to in an uncontested probate proceeding concerning the will.
  2. The attesting witness may make and sign the affidavit at any time, either:
    1. On his or her own initiative;
    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.
  3. 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.
  4. If the probate of the will is uncontested, the affidavit may be accepted by the circuit court with the same effect as if the testimony of the witness had been taken before the court.

History. Acts 1955, No. 106, § 1; A.S.A. 1947, § 60-417.

28-25-107. Incorporation of writing by reference.

  1. 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.
    1. Whether or not the provisions relating to holographic wills apply, 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.
    2. 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 or her and must describe the items and devisees with reasonable certainty.
    3. The writing may be:
      1. Referred to as one to be in existence at the time of the testator's death;
      2. Prepared before or after the execution of the will;
      3. Altered by the testator after its preparation; and
      4. A writing which has no significance apart from its effect upon the dispositions made by the will.

History. Acts 1979, No. 814, §§ 3, 4; A.S.A. 1947, §§ 60-418, 60-419.

Research References

Ark. L. Rev.

Wills — Incorporation of Extrinsic Documents by Reference, 6 Ark. L. Rev. 496.

Note, Incorporation by Reference, Integration, and Holographic Wills in Gifford v. Estate of Gifford, 46 Ark. L. Rev. 1013.

U. Ark. Little Rock L.J.

Jans, Survey of Decedents' Estates, 3 U. Ark. Little Rock L.J. 216.

Case Notes

Signed Memoranda.

Testator's signed memoranda, made after execution of his will, can be effective with certain restrictions under this section; whether any such memoranda were left by the testator is for the trial court to decide if the issue was disputed. Deal v. Huddleston, 288 Ark. 96, 702 S.W.2d 404 (1986).

Memorandum in the handwriting of and signed by the testatrix was incorporated into her will by reference where it was physically attached and alluded to in the will. Gifford v. Estate of Gifford, 305 Ark. 46, 805 S.W.2d 71 (1991).

A signed handwritten note found in the decedent's jewelry box, which stated, “I want Vernita Ellison to have these items and [my dog],” was properly admitted as part of her will. Jones v. Ellison, 70 Ark. App. 162, 15 S.W.3d 710 (2000).

28-25-108. Deposit of will with court in testator's lifetime — Disposition.

  1. Deposit of Will. A will may be deposited by the person making it, or by some person for him or her, with the circuit court of the county of his or her residence, to be safely kept until delivered or disposed of as provided in this section. On being paid the fee of two dollars ($2.00), the clerk of the court shall receive and keep the will and give a certificate of deposit for it.
  2. How Enclosed. Every will intended to be deposited as provided in subsection (a) of this section 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 shall 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 provided in this section.
  3. To Whom Delivered.
    1. During the lifetime of the testator, the will shall be delivered only to him or her, or to some person authorized by him or her by an order in writing duly signed by him or her and acknowledged before an officer authorized to administer oaths or attested by the signatures of two (2) persons competent to witness the will.
    2. After the testator's death, the clerk shall deliver the will to the person named in the endorsement on the wrapper of the will if that person requests the will either in person or in writing.
    3. If the request under subdivision (c)(2) of this section is in person, the clerk shall require proof of identification before delivering the will.
    4. If the request under subdivision (c)(2) of this section is in writing, the clerk shall require an affidavit of the person requesting the will in substantially the following form:
  4. When Will to Be Opened.
    1. 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.
    2. Notice shall be given to the executor, if any, named therein and to such other persons as the court may designate.
    3. If the proper venue is in another court, the will shall be transmitted to that court, but, before such a transmission, a true copy shall be made and retained in the court in which the will was deposited.

“STATE OF ARKANSAS

COUNTY OF ____________

BE IT KNOWN THAT on this day of , ..., before me, the undersigned notary, personally came and appeared:

who after being duly sworn by me, a notary, deposed and stated his or her name and address.

SUBSCRIBED AND SWORN TO BEFORE ME THIS DAY OF ,

NOTARY PUBLIC”

History. Acts 1949, No. 140, § 31; 1983, No. 898, § 2; A.S.A. 1947, §§ 22-523, 60-415; Acts 2007, No. 652, § 1.

Amendments. The 2007 amendment substituted “The wrapper shall also be endorsed” for “The wrapper may also be endorsed” in (b); and, in (c), rewrote (2) and added (3) and (4).

Case Notes

Failure to Fully Comply with Statute.

The failure of the clerk or the parties to comply with all the provisions of this section in handling the will will not necessarily destroy its integrity. Wargo v. Wargo, 226 Ark. 42, 287 S.W.2d 882 (1956).

There was sufficient evidence to establish the validity of a will notwithstanding the fact that all the provisions of this section were not complied with. Wargo v. Wargo, 226 Ark. 42, 287 S.W.2d 882 (1956).

28-25-109. Revocation of wills.

  1. 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 the testator's presence and by the testator's direction.
  2. 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.
  3. When there has been a partial revocation, reattestation of the remainder of the will shall not be required.

History. Acts 1949, No. 140, §§ 22, 23; 1979, No. 814, §§ 1, 2; A.S.A. 1947, §§ 60-406, 60-407.

Research References

Ark. L. Notes.

Lonnie Beard, Questioning the practice of executing duplicate original wills, 2013 Ark. L. Notes 1030.

Ark. L. Rev.

Wills — Dependent Relative Revocation, 8 Ark. L. Rev. 193.

Wills — Revocation Implied from Divorce of Testator, 9 Ark. L. Rev. 182.

Leflar, Liberty and Death: Advance Health Care Directives and the Law of Arkansas, 39 Ark. L. Rev. 375.

Recent Development: Arkansas Probate Law — Revocation of Holographic Wills, 60 Ark. L. Rev. 1023.

U. Ark. Little Rock L.J.

Jans, Survey of Decedents' Estates, 3 U. Ark. Little Rock L.J. 216.

Note, Decedents' Estates — Wills — Doctrine of Dependent Relative Revocation — May Not Be Applicable in Arkansas, Larrick v. Larrick, 271 Ark. 120, 607 S.W.2d 92 (1980), 4 U. Ark. Little Rock L.J. 353.

Survey — Property, 11 U. Ark. Little Rock L.J. 243.

Case Notes

In General.

In order to effect revocation of a will other than by execution of another, the revocation must be in a manner prescribed by statute. Reiter v. Carroll, 210 Ark. 841, 198 S.W.2d 163 (1946) (decision under prior law).

There is no such thing as an irrevocable will. Allen v. First Nat'l Bank, 230 Ark. 201, 321 S.W.2d 750 (1959).

Alterations Not Reexecuted.

A testator did not successfully alter her will by retyping all dispositive provisions in her will and destroying the original provisions, since the altered instrument was not reexecuted and reattested to. Tull v. Benton State Bank, 257 Ark. 386, 516 S.W.2d 583 (1974).

Where the testator changed the disposition of her property in her typewritten will by interlineation or obliteration of a devisee's name, her attempt to obliterate the name of the devisee was void since it was not attested, and the devisee's name had to be restored to the will as originally intended. Dodson v. Walton, 268 Ark. 431, 597 S.W.2d 814 (1980).

Burden of Proof.

The burden to prove revocation of a will rests on party asserting it. Cook v. Jeffett, 169 Ark. 62, 272 S.W. 873 (1925) (decision under prior law).

Former statute held not to relieve will contestants from proving the contents of a subsequent will by clear, positive, and satisfactory testimony in order to annul or revoke a former will. Reed v. Johnson, 200 Ark. 1075, 143 S.W.2d 32 (1940) (decision under prior law).

Conclusiveness of Court's Finding.

The finding of the circuit court, sitting as a jury, as to which is the later of two wills would not be disturbed unless there was a total want of evidence to support it, the dates to the wills not being conclusive. Austin v. Fielder, 40 Ark. 144 (1882) (decision under prior law).

Effect of Divorce.

Prior to enactment of this section, the only methods of revoking a will were those provided by statute, and a divorce and property settlement to former wife were not facts sufficient to revoke a will. Mosely v. Mosely, 217 Ark. 536, 231 S.W.2d 99, 18 A.L.R.2d 695 (1950) (decision under prior law).

The divorced wife of a testator who took her share of their marital property in the divorce proceeding was estopped from taking advantage of this implied revocation statute after the testator's death to obtain the bulk of her former husband's remaining property on the ground that the marriage was void. Rickner v. Estate of Rickner, 283 Ark. 42, 670 S.W.2d 450 (1984).

Will was not revoked by testator's marriage, but divorce did revoke will provisions made in spouse's favor. Davis v. Aringe, 292 Ark. 549, 731 S.W.2d 210 (1987).

Equitable Intervention.

Before a case can be made for equitable intervention, there must be proof that the testator undertook acts which would have resulted in legal revocation of the will had he not been prevented from the fulfillment of such acts by force or fraud. Reiter v. Carroll, 210 Ark. 841, 198 S.W.2d 163 (1946) (decision under prior law).

Former Spouses.

The clear meaning of the words used in this section is that any bequest to a former spouse is void but that the remainder of the will remains in effect. McGuire v. McGuire, 275 Ark. 432, 631 S.W.2d 12 (1982).

This section does not provide that its provision revoking a former spouse's bequest or devise upon divorce is dependent upon testator having made his will during a marriage. Davis v. Aringe, 292 Ark. 549, 731 S.W.2d 210 (1987).

Revocation of a holographic will that provided that the decedent's estate would pass to his former wife was appropriate under subsection (b) of this section because the parties' divorce occurred after the execution of the decedent's holographic will and his bequest was revoked by operation of law. Langston v. Langston, 371 Ark. 404, 266 S.W.3d 716 (2007), rehearing denied, — Ark. —, — S.W.3d —, 2007 Ark. LEXIS 663 (Dec. 6, 2007).

Holographic Will.

An unattested holographic will held not to revoke a prior attested will. Parker v. Hill, 85 Ark. 363, 108 S.W. 208 (1908) (decision under prior law).

Where a holographic will, when found, had the word “void” written at the top of each page and cross marks through the provisions of each page and the testimony of witnesses disagreed as to whether the word “void” and the cross marks were in the testator's handwriting, finding of the probate court that the will had been intentionally and effectively revoked by the testator was not against the preponderance of the evidence. Starnes v. Andre, 243 Ark. 712, 421 S.W.2d 616 (1967).

Trial court clearly erred in finding that a note an executrix found was an effective change of a decedent's individual retirement account beneficiary because if the note was regarded as a holographic will, it was revoked by the express terms of the decedent's will and by operation of law pursuant to subdivision (a)(1) of this section. Nunnenman v. Estate of Grubbs, 2010 Ark. App. 75, 374 S.W.3d 75 (2010), rehearing denied, — Ark. App. —, — S.W.3d —, 2010 Ark. App. LEXIS 248 (Mar. 10, 2010), review denied, Nunnenman v. Grubbs, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 390 (Aug. 6, 2010).

Ineffective Revocation.

Although this section permits revocation of all or part of a will by cancellation or obliteration by the testator with the intent and for the purpose of revoking the will, since the “strike outs” had the effect of increasing the estate, the attempted revocation was ineffective because it would have resulted in a new testamentary disposition without attestation. Walpole v. Lewis, 254 Ark. 89, 492 S.W.2d 410 (1973).

Instrument of Revocation.

An instrument to revoke a will must be executed in conformity to statutory requirements. Newboles v. Newboles, 169 Ark. 282, 273 S.W. 1026 (1925); McPherson v. McKay, 207 Ark. 546, 181 S.W.2d 685 (1944) (decision under prior law).

A will cannot be revoked by a trust instrument under this section. Wells v. Estate of Wells, 325 Ark. 16, 922 S.W.2d 715 (1996).

Intentional Destruction.

Where the widow testified she observed the testator tear up his will and set fire to it about a week before his death and where a witness testified that the testator the day before his death stated that he tore up his old will, there was substantial evidence to support the probate court's finding that the testator intentionally destroyed his will. Larrick v. Larrick, 271 Ark. 120, 607 S.W.2d 92 (1980).

Testator's will was not revoked pursuant to the terms of this section where the will was not destroyed in the testator's presence. In re Estate of O'Donnell, 304 Ark. 460, 803 S.W.2d 530 (1991), overruled in part, Edmundson v. Estate of Fountain, 358 Ark. 302, 189 S.W.3d 427 (2004), overruled, Minton v. Minton, 2010 Ark. App. 310, 374 S.W.3d 818 (2010).

Decedent's acts of marking “void” over each paragraph of his will, writing “bastard” and “get nothing” on the will, applying Liquid Paper over the names of the beneficiaries, and then shredding the document in the presence of his insurance agents, were sufficient to revoke the will under subdivision (a)(2) of this section. The proponents of the will failed to show that the decedent suffered from insane delusions at the time of the revocation. Heirs of Goza v. Estate of Potts, 2010 Ark. App. 149, 374 S.W.3d 132 (2010), rehearing denied, — Ark. App. —, — S.W.3d —, 2010 Ark. App. LEXIS 288 (Mar. 31, 2010).

Intestacy.

Where a 1973 will was effectively revoked by execution of a 1976 will, in accordance with this section, and the 1976 will was destroyed, the decedent died intestate. Parker v. Mobley, 264 Ark. 805, 577 S.W.2d 583 (1979).

Marriage of Testator.

A testator's marriage after execution of a will did not operate to revoke his will. Lamb v. Ford, 239 Ark. 339, 389 S.W.2d 419 (1965).

Obliteration of Will.

A will was not revoked by cross-throughs, interlineations, and mark-outs made by the testator where the changes made by the testator were of no legal significance and evidence did not show that she intended to revoke her will by obliteration. Dillard v. Nix, 345 Ark. 215, 45 S.W.3d 359 (2001).

Oral Instructions.

Oral instructions by the testator that his will be destroyed were insufficient, even though the testator believed his instructions had been carried out. Reiter v. Carroll, 210 Ark. 841, 198 S.W.2d 163 (1946) (decision under prior law).

Rejection by Spouse.

Where will executed prior to marriage did not provide for widow, widow's right to take against the will was personal to her and did not survive when she died before making election to so take against will. Lamb v. Ford, 239 Ark. 339, 389 S.W.2d 419 (1965).

Residual Legatees.

Where a husband executed a will giving all of his property to his wife with his stepchildren as the residual legatees and subsequently the parties were divorced, but the will was not changed, the bequest to his former spouse was thereby revoked in accordance with this section and the stepchildren were the proper parties to receive the property under the terms of the will. McGuire v. McGuire, 275 Ark. 432, 631 S.W.2d 12 (1982).

Residuary bequest to the decedent's stepchildren in the decedent's last will and testament was voided because the decedent's spouse, who was removed from the will pursuant to an antenuptial agreement, did not predecease the decedent by 30 days so that the condition precedent in the will that would have allowed the stepchildren to inherit under the terms of the will was not met. Further, the circuit court's determination that the antenuptial agreement did not cancel the entirety of the decedent's will was not clearly erroneous. Craig v. Craig, 2018 Ark. App. 489, 563 S.W.3d 560 (2018).

Will Predating Marriage.

Under this section, any bequest to a former spouse is void, but the remainder of the will remains in effect; and unless the will is completely revoked because all of its substantive provisions favor the decedent's former spouse, the decedent will have died testate and § 28-39-401 will apply. This section does not require a holding that § 28-39-401 was not intended to be applied when the will predates a marriage. In re Estate of Epperson, 284 Ark. 35, 679 S.W.2d 792 (1984), cert. denied, Epperson v. Estate of Epperson, 471 U.S. 1017, 105 S. Ct. 2022 (1985).

This section does not make a distinction concerning wills that predate a marriage and those made after a marriage. Davis v. Aringe, 292 Ark. 549, 731 S.W.2d 210 (1987).

Cited: Mosely v. Mosely, 217 Ark. 536, 231 S.W.2d 99, 18 A.L.R.2d 695 (1950); Remington v. Roberson, 81 Ark. App. 36, 98 S.W.3d 44 (2003).

28-25-110. Revival of revoked or invalid will.

No will or any part thereof which shall be revoked, or which shall be or become invalid, can be revived otherwise than by a reexecution thereof, or by the execution of another will in which the revoked or invalid will or part thereof is incorporated by reference.

History. Acts 1949, No. 140, § 24; A.S.A. 1947, § 60-408.

Case Notes

Dependent Relative Revocation.

This section would seem to preclude the application of the doctrine of dependent relative revocation in Arkansas. Larrick v. Larrick, 271 Ark. 120, 607 S.W.2d 92 (1980).

Destruction of Later Will.

The appellant was incorrect that, if a later will was destroyed, then an earlier will, under which she took, would be revived; a will that has been revoked can only be revived by re-execution or the execution of another will in which the revoked will is incorporated by reference. Matheny v. Heirs of Oldfield, 72 Ark. App. 46, 32 S.W.3d 491 (2000).

Cited: Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977); Parker v. Mobley, 264 Ark. 805, 577 S.W.2d 583 (1979).

Chapter 26 Construction And Operation

Research References

ALR.

Effect of testamentary gift to child conditioned upon specified arrangements for parental control. 11 A.L.R.4th 940.

Gift to persons individually named but also described in terms of relationship to testator or another as class gift. 13 A.L.R.4th 978.

Joint and mutual wills. 17 A.L.R.4th 167.

Validity of testamentary exercise of power of appointment by donee sane when will was executed but insane thereafter. 19 A.L.R.4th 1002.

What passes under terms “furniture” or “furnishings” in will. 21 A.L.R.4th 383.

Validity and enforceability of provision of will or trust instrument for forfeiture or reduction of share of contesting beneficiary. 23 A.L.R.4th 369.

Ademption of bequest of debt or balance on debt. 25 A.L.R.4th 88.

Effectiveness of change of named beneficiary of life or accident insurance policy by will. 25 A.L.R.4th 1164.

“Child” or “children” in will as including grandchild or grandchildren. 30 A.L.R.4th 319.

Sufficiency of provision for, or reference to, prospective spouse to avoid lapse or revocation of will by subsequent marriage. 38 A.L.R.4th 117.

Effect of impossibility of performance of condition precedent to testamentary gift. 40 A.L.R.4th 193.

Living wills. 49 A.L.R.4th 812.

Am. Jur. 80 Am. Jur. 2d, Wills, § 993 et seq.

Ark. L. Rev.

Acts 1949 General Assembly — Act 140 The Probate Code, 3 Ark. L. Rev. 375.

Transmissibility of Certain Contingent Future Interests, 5 Ark. L. Rev. 111.

The Devisability of Possibilities of Reverter and Right of Entry for Condition Broken, 7 Ark. L. Rev. 390.

Wills — Designation by Will of Attorney for the Estate, 7 Ark. L. Rev. 419.

C.J.S. 96 C.J.S., Wills, § 819 et seq.

U. Ark. Little Rock L.J.

Brantley and Effland, Inheritance, The Share of the Surviving Spouse, and Wills: Arkansas Law and the Uniform Probate Code Compared, 3 U. Ark. Little Rock L.J. 361.

28-26-101. Construction of will.

  1. The court in which a will is probated or to which the administration proceeding may have been transferred shall have jurisdiction to construe it at any time during the administration.
  2. The construction may be made on the petition of the personal representative or of any other person interested in the will, or if a construction of the will is necessary to the determination of an issue properly before the court, the court may construe the will in connection with the determination of the issue.
  3. When a petition for the construction of a will is filed, notice of the hearing shall be given to persons interested in the construction of the will.

History. Acts 1949, No. 140, § 32; A.S.A. 1947, § 60-416.

Case Notes

Children as Class.

Where a will bequeathed money to five grandchildren, children of his predeceased daughter, the six children of the daughter took as a class, as the testator expressed his intention to include all the children of his daughter and the number “five” was disregarded. Walker v. Case, 211 Ark. 1091, 204 S.W.2d 543, 173 A.L.R. 1009 (1947) (decision under prior law).

Joint Will.

There can be no such thing as a joint will to take effect upon the death of the survivor. Hershy v. Clark, 35 Ark. 17 (1879) (decision under prior law).

Jurisdiction of Probate Court.

Where a will provided for a trust under supervision of the chancery court which assumed administration of the trust, the probate court had jurisdiction to determine whether a bequest under the will was payable, since it was concerned with administration of the estate, but it did not have jurisdiction to determine whether a petitioner had the right to rents and possession of trust lands, since that involved administration of the trust under supervision of the chancery court. Cross v. McLaren, 223 Ark. 674, 267 S.W.2d 956 (1954).

Where a widow elected to take against the will, posing the question of whether such action accelerated the vesting of the estates of the remaindermen, the probate court had jurisdiction to construe the will. Harrison v. Harrison, 234 Ark. 271, 351 S.W.2d 441 (1961).

Life Estate.

Where testator gave his wife a life interest in his real property with the remainder in his children, with the condition she could sell the property as necessary to be maintained and supported in the standard of living to which she was accustomed, she had the right to sell the real property to obtain sufficient funds to continue that standard, assuming she first gave the testator's children the option to purchase the property, as also required by the will. Green v. Ware, 305 Ark. 224, 807 S.W.2d 24 (1991).

Limitation Over After Granting of Fee Simple.

Where testator devised his residuary estate to his widow “in fee simple forever” and in the next sentence of his will attempted to provide for the distribution of any other property that the widow had not disposed of during her lifetime or by her will, the limitation over was void, being inconsistent with the fee simple devise to the widow, but even so the court was not called upon to determine the validity of the latter paragraph, for a decision of that issue was not essential to a distribution of the estate, the distribution order contemplating the conclusive settlement in adversary proceeding, and the only issue that could be determined upon the filing of the final account was a proper physical distribution; even if the latter paragraph had been valid, it could not have been known at that time what property would be left undisposed of or what persons would then prove to be heirs later on. Therefore, the widow correctly interpreted the law in stating that she was the sole beneficiary of the estate. Collie v. Tucker, 229 Ark. 606, 317 S.W.2d 137 (1958).

Person Interested in the Will.

A co-executor cannot request a construction of the will solely in his capacity as an executor because his status as a fiduciary is wholly dependent upon his position as co-executor, and, as such, he would not be an “interested person” as used in this section. Dunklin v. Ramsay, 328 Ark. 263, 944 S.W.2d 76 (1997).

Reversionary Interests.

Where statute provides that testator may devise realty and all his interest therein, he thus may also devise his possibility of reverter. Fletcher v. Ferrill, 216 Ark. 583, 227 S.W.2d 448, 16 A.L.R.2d 1240 (1950) (decision under prior law).

Where a deed reserved a life estate in grantor and contained reverter clause “to the heirs of the said” grantor, these words were words of limitation and not of purchase; therefore, upon lapse of condition after death of grantor, the real estate reverted to the estate of the grantor, to be distributed according to the will. Fletcher v. Ferrill, 216 Ark. 583, 227 S.W.2d 448, 16 A.L.R.2d 1240 (1950) (decision under prior law).

Third Persons.

A clause added by third person may be disregarded. Musgrove v. Holt, 153 Ark. 355, 240 S.W. 1068 (1922) (decision under prior law).

Cited: Dickerson v. Union Nat'l Bank, 268 Ark. 292, 595 S.W.2d 677 (1980).

28-26-102. After-acquired property.

Property acquired by the testator after the making of the testator's will shall pass as if title to the property was vested in the testator at the time of making the will, unless the contrary intention manifestly appears in the will.

History. Acts 1949, No. 140, § 25; A.S.A. 1947, § 60-409.

Research References

U. Ark. Little Rock L.J.

Jans, Survey of Decedents' Estates, 3 U. Ark. Little Rock L.J. 216.

Case Notes

Cited: Binns v. Vick, 260 Ark. 111, 538 S.W.2d 283 (1976).

28-26-103. Partial intestacy.

If part but not all of the estate of a decedent is validly disposed of by will, the part not disposed of by will shall be distributed as provided by law with respect to the estates of intestates.

History. Acts 1949, No. 140, § 27; A.S.A. 1947, § 60-411.

Research References

Ark. L. Rev.

The Doctrine of Worthier Title in Arkansas, 21 Ark. L. Rev. 394.

Case Notes

Exclusionary Clause.

An exclusionary clause in a will lacking a residuary clause does not control intestate property held by the testatrix. Cook v. Estate of Seeman, 314 Ark. 1, 858 S.W.2d 114 (1993).

Because intestate property passes by law rather than by will, the statute and not the testator controls the distribution of intestate property; therefore, although the testator's intent to disinherit is clearly and unambiguously expressed in a will, such exclusionary language will not be given effect as against the distribution of intestate property. Cook v. Estate of Seeman, 314 Ark. 1, 858 S.W.2d 114 (1993).

Despite the fact that several beneficiaries were explicitly disinherited by the provisions of a will, the residue of the estate was distributed according to the rules of intestate succession because the residuary clause was ineffective; the presumption against partial intestacy was subordinate to the presumption against disherison. Harrison v. Harrison, 82 Ark. App. 521, 120 S.W.3d 144 (2003).

Properties Not Devised.

Where testator's will consisted of six separate sheets of holographic writings, five of which made specific devises to named relatives, while on the sixth sheet he devised to his nieces and nephews not otherwise named “all the rest of my property” and then without punctuation described thereon specific property and “rest of money after funeral expenses,” the sixth sheet did not constitute a devise of after-acquired properties and testator died intestate as to such after-acquired properties. Bradshaw v. Pennington, 225 Ark. 410, 283 S.W.2d 351 (1955).

Residuary bequest to the decedent's stepchildren in the decedent's last will and testament was voided because the decedent's spouse, who was removed from the will pursuant to an antenuptial agreement, did not predecease the decedent by 30 days so that the condition precedent in the will that would have allowed the stepchildren to inherit under the terms of the will was not met. Further, the circuit court's determination that the antenuptial agreement did not cancel the entirety of the decedent's will was not clearly erroneous. Craig v. Craig, 2018 Ark. App. 489, 563 S.W.3d 560 (2018).

28-26-104. Failure of a testamentary provision.

Unless a contrary intent is indicated by the terms of the will, the following rules shall apply:

  1. Except as provided in subdivision (2) of this section:
    1. If a devise other than a residuary devise fails for any reason, it becomes a part of the residue; and
    2. If the residue is devised to two (2) or more persons and the share of one (1) of the residuary devisees fails for any reason, his or her share passes to the other residuary devisee, or to other residuary devisees in proportion to their interests in the residue; and
  2. Whenever property is devised to a child, natural or adopted, or other descendant of the testator, either by specific provision or as a member of a class, and the devisee shall die in the lifetime of the testator, leaving a child, natural or adopted, or other descendant who survives the testator, the devise shall not lapse, but the property shall vest in the surviving child or other descendant of the devisee, as if the devisee had survived the testator and died intestate.

History. Acts 1949, No. 140, § 26; 1979, No. 813, § 1; A.S.A. 1947, § 60-410.

Research References

Ark. L. Rev.

Descent in Absence of Kin — Escheat, 13 Ark. L. Rev. 350.

The Doctrine of Worthier Title in Arkansas, 21 Ark. L. Rev. 394.

The New Arkansas Inheritance Laws: A Step into the Present with an Eye to the Future, 23 Ark. L. Rev. 313.

Case Note, Cox v. Whitten: Limiting the Inheritance Rights of Adopted Adults, etc., 40 Ark. L. Rev. 627.

U. Ark. Little Rock L.J.

Jans, Survey of Decedents' Estates, 3 U. Ark. Little Rock L.J. 216.

Survey of Arkansas Law, Decedents' Estates, 5 U. Ark. Little Rock L.J. 135.

Case Notes

Adopted Children.

Adopted children of predeceased legatee were held to be within statutory provisions. Dean v. Smith, 195 Ark. 614, 113 S.W.2d 485 (1938) (decision under prior law).

Death of Legatee or Devisee Prior to Testator.

A legacy or devise lapses when the legatee or devisee dies before the testator with the exception of where the legacy or devise is to the child or other descendant of the testator. Christy v. Smith, 226 Ark. 289, 289 S.W.2d 885 (1956).

Where the legatee or devisee dies before the testator, the legacy or devise lapses unless the beneficiary is a child or other descendant of the testator or where it is a gift to a class. Scholem v. Long, 246 Ark. 786, 439 S.W.2d 929 (1969).

Where the residuary clause of the will of a testator left all property to a brother who survived testator and to a sister who predeceased testator, the bequest of one-half of the residuum to the sister lapsed and the bequest passed as intestate property to be distributed to the heirs-at-law of the testator. Eckert Heirs v. Harlow, 251 Ark. 1018, 476 S.W.2d 244 (1972).

Circuit court erred in ruling that the interests of beneficiaries who predeceased the surviving settlor of an inter vivos trust lapsed upon the death of the beneficiaries; rather, the beneficiaries' descendants were entitled to the beneficiaries' shares of the trust distribution upon the settlor's death. Tait v. Community First Trust Co., 2012 Ark. 455, 425 S.W.3d 684 (2012).

Distributive Gift.

A devise of land to three cousins of testator who were described by name and not by relationship was a distributive gift to individuals rather than a gift to a class, and the gift lapsed as to one of the cousins when his death preceded the death of the testator, notwithstanding a clause in the will providing that the devisees were not to sell or mortgage the property for 20 years after death of testator. Scholem v. Long, 246 Ark. 786, 439 S.W.2d 929 (1969).

Lapsed Legacy.

A legacy or devise to one not a descendant of the testator lapses when the legatee or devisee dies before the testator and becomes part of the residuary estate passing under the clause of the will disposing of the residuum. Gibbons v. Ward, 115 Ark. 184, 171 S.W. 90 (1914) (decision under prior law).

Life Estate.

A devise to A for life, with remainder to B, does not lapse by the death of A in the lifetime of the testator, but vests immediately in B on the death of the testator. West v. Williams, 15 Ark. 682 (1855) (decision under prior law).

Cited: Welch v. Tarver, 256 Ark. 272, 507 S.W.2d 505 (1974); Jones v. Bransford, 270 Ark. 664, 606 S.W.2d 118 (Ct. App. 1980).

28-26-105. Devise of encumbered property.

A valid charge or encumbrance upon any property shall not revoke any provision of a previously executed will relating to the same property. However, the devisee shall take the property subject to the charge or encumbrance, the discharge of which will be governed by the provisions of § 28-53-113.

History. Acts 1949, No. 140, § 29; A.S.A. 1947, § 60-413.

Chapter 27 Uniform Testamentary Additions To Trusts Act

Publisher's Notes. Former chapter 27, concerning uniform testamentary additions to trusts, was repealed by implication by Acts 1995, No. 751, §§ 1-6. The former chapter was derived from the following sources:

28-27-101. Acts 1963, No. 483, § 1; 1971, No. 320, § 1; A.S.A. 1947, § 60-601.

28-27-102. Acts 1963, No. 483, § 2; A.S.A. 1947, § 60-602.

28-27-103. Acts 1963, No. 483, § 3; A.S.A. 1947, § 60-603.

28-27-104. Acts 1963, No. 483, § 4; A.S.A. 1947, § 60-604.

28-27-105. Acts 1963, No. 483, § 5; A.S.A. 1947, § 60-604n.

For Comments regarding the Uniform Testamentary Additions to Trusts Act, see Commentaries Volume B.

Effective Dates. Acts 1995, No. 751, § 6: August 1, 1995.

Research References

Am. Jur. 79 Am. Jur. 2d, Wills, § 196.

Ark. L. Rev.

The Developing Use of the Revocable Trust and Pour-Over Wills — Some Functional Problems During the Executorial Period, 21 Ark. L. Rev. 499.

Workbook for Arkansas Estate Planners, 22 Ark. L. Rev. 408.

C.J.S. 97 C.J.S., Wills, § 1425 et seq.

U. Ark. Little Rock L.J.

Brantley and Effland, Inheritance, The Share of the Surviving Spouse, and Wills: Arkansas Law and the Uniform Probate Code Compared, 3 U. Ark. Little Rock L.J. 361.

28-27-101. Testamentary additions to trusts.

  1. A will may validly devise or bequeath property to the trustee of a trust established or to be established (i) during the testator's lifetime by the testator, by the testator and some other person, or by some other person including a funded or unfunded life insurance trust, although the trustor has reserved any or all rights of ownership of the insurance contracts, or (ii) at the testator's death by the testator's devise to the trustee, if the trust is identified in the testator's will and its terms are set forth in a written instrument, other than a will, executed before, concurrently with, or after the execution of the testator's will or in another individual's will if that other individual has predeceased the testator, regardless of the existence, size, or character of the corpus of the trust. The devise or bequest is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or the testator's death.
  2. Unless the testator's will provides otherwise, property devised or bequeathed to a trust described in subsection (a) is not held under a testamentary trust of the testator, but it becomes a part of the trust to which it is devised or bequeathed, and must be administered and disposed of in accordance with the provisions of the governing instrument setting forth the terms of the trust, including any amendments thereto made before or after the testator's death.
  3. Unless the testator's will provides otherwise, a revocation or termination of the trust before the testator's death causes the devise or bequest to lapse.

History. Acts 1995, No. 751, § 1.

Research References

Ark. L. Rev.

Carroll, Uniform Laws in Arkansas, 52 Ark. L. Rev. 313.

U. Ark. Little Rock L. Rev.

The Arkansas Trust Code: Good Law for Arkansas. 27 U. Ark. Little Rock L. Rev. 191.

Case Notes

Cited: Sutter v. Sutter, 345 Ark. 12, 43 S.W.3d 736 (2001).

28-27-102. Effect on existing wills.

This chapter applies to a will of a testator who dies after July 31, 1995.

History. Acts 1995, No. 751, § 2.

28-27-103. Uniformity of application and construction.

This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.

History. Acts 1995, No. 751, § 3.

28-27-104. Short title.

This chapter may be cited as the “Uniform Testamentary Additions to Trusts Act of 1995.”

History. Acts 1995, No. 751, § 4.

28-27-105. Savings clause.

The repeal of any statutory provision by this chapter does not impair, or otherwise affect, any will, devise, or bequest or any trust existing on August 1, 1995, nor does the repeal of any statutory provision by this chapter impair any contract or affect any right accrued before August 1, 1995.

History. Acts 1995, No. 751, § 5.

28-27-106. Effective date.

This chapter takes effect on August 1, 1995.

History. Acts 1995, No. 751, § 6.

Chapters 28-37 [Reserved.]

[Reserved]

Subtitle 4. Administration Of Decedents' Estates

Chapter 38 General Provisions

Effective Dates. Acts 1965, No. 381, § 4: Mar. 19, 1965. Emergency clause provided: “It has been found and is declared by the General Assembly that the Internal Revenue Service of the United States Treasury Department draws checks or warrants in payment of refunds of federal income tax in favor of and in the names of both spouses with respect to whom joint federal income tax returns have been filed irrespective of the fact of death of one of such spouses and further will not honor such a check or warrant indorsed by the survivor only in the absence of an appropriate court order; that this procedure works a great hardship on survivors, especially in cases where there is no administration on the estate of the deceased spouse; and that enactment of this measure will enable survivors to receive the refunds due them with reasonable expedition. Therefore, an emergency is declared to exist, and this Act, being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from the date of its approval.”

28-38-101. Joint income tax refunds.

  1. The survivor of spouses with respect to whom a joint federal income tax return has been filed, upon the death of the other, shall be entitled to receive any refund of tax due from the Internal Revenue Service in his or her own right upon making proof of the death of the other.
  2. Proof of death for the purpose of this section may be made by exhibiting a death certificate of a coroner, licensed physician, or appropriate state agency, or by affidavit of the survivor.
  3. It shall be unnecessary for a survivor who has complied with the terms of this section to secure any court order to entitle him or her to receive the federal income tax refund, but he or she shall have a right to a United States Treasury check or warrant for the refund drawn in his or her favor solely.

History. Acts 1965, No. 381, §§ 1-3; A.S.A. 1947, §§ 62-2131 — 62-2133.

Case Notes

In General.

This section contemplates the situation where an income tax return is filed while both husband and wife are still living and thereafter one of them dies, not the situation where one spouse has already died when the return is filed. Foster v. Schmiedeskamp, 260 Ark. 898, 545 S.W.2d 624 (1977).

Chapter 39 Rights Of Surviving Family Members

Subchapter 1 — Allowances to Family

Cross References. Life interests and remainders, determination of present value, § 18-2-101 et seq.

Effective Dates. Acts 1951, No. 255, § 15: Mar. 19, 1951. Emergency clause provided: “The General Assembly has ascertained that there is a likelihood of misconstruction of certain provisions of the Probate Code, and that an urgent need exists for clarification thereof and certain additions thereto in order that the law relating to proceedings in probate may be construed and administered in a uniform manner throughout the State, in accordance with the legislative intent; for the accomplishment of which purposes this Act is adopted. An emergency is therefore declared to exist, and this Act, being necessary for the immediate preservation of the public peace, welfare and safety, shall take effect and be in force from and after its passage and approval.”

Acts 1981, No. 714, § 75: Mar. 25, 1981. Emergency clause provided: “It has been found and is declared by the General Assembly of Arkansas that existing law relating to such matters as homestead, dower, curtesy, statutory allowances payable from a decedent's estate, and the right of a surviving spouse to take against the will of a decedent, do not in all circumstances provide for equal treatment between the sexes, that the constitutionality of such existing law has been drawn into question by decisions of the United States Supreme Court and the Arkansas Supreme Court, and that there is an urgent need to insure that the law provides equality in the property rights and interests of married persons. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from the date of its approval.”

Research References

ALR.

Prior institution of annulment proceedings or other attack on validity of one's marriage as barring or estopping one from entitlement to property rights as surviving spouse. 31 A.L.R.4th 1190.

Rights of inheritance as between kindred of whole and half blood. 47 A.L.R.4th 561.

Am. Jur. 23 Am. Jur. 2d, Desc. & D., § 109 et seq.

31 Am. Jur. 2d, Exec. & Ad., § 324 et seq.

Ark. L. Rev.

Acts 1949 General Assembly — Act 140 The Probate Code, 3 Ark. L. Rev. 375.

Probate Code Amendments, 5 Ark. L. Rev. 377.

Federal Estate Tax: Surviving Spouse Support Allowances and the Marital Deduction, 21 Ark. L. Rev. 131.

The New Arkansas Inheritance Laws: A Step into the Present with an Eye to the Future, 23 Ark. L. Rev. 313.

Estate Planning with Disclaimers in Arkansas, 27 Ark. L. Rev. 411.

C.J.S. 26B C.J.S., Desc. & D., § 23 et seq.

34 C.J.S., Exec. & Ad., § 344 et seq.

U. Ark. Little Rock L.J.

Brantley and Effland, Inheritance, The Share of the Surviving Spouse, and Wills: Arkansas Law and the Uniform Probate Code Compared, 3 U. Ark. Little Rock L.J. 361.

Note, Constitutional Law — Equal Protection — Arkansas' Gender-Based Statutes on Dower, Election, Statutory Allowances, and Homestead Are Unconstitutional, Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981); Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372, 18 A.L.R.4th 903 (1981), 4 U. Ark. Little Rock L.J. 361.

Legislative Survey, Decedents' Estates, 4 U. Ark. Little Rock L.J. 591.

Survey of Arkansas Law, Decedents' Estates, 5 U. Ark. Little Rock L.J. 135.

Averill & Brantley, A Comparison of Arkansas's Current Law Concerning Succession, Wills, and Other Donative Transfers with Article II of the 1990 Uniform Probate Code, 17 U. Ark. Little Rock L.J. 631.

28-39-101. Allowances to surviving spouse and minor children.

    1. In addition to their homestead, dower, and curtesy rights, the surviving spouse and minor children of a decedent, or either in the absence of the other, shall be entitled to have assigned to them out of the property owned by the decedent at the time of his or her death, personal property, tangible or intangible, to be selected prior to the sale thereof by the personal representative or after sale out of the proceeds thereof by the surviving spouse, if there is a surviving spouse or, otherwise, by the guardian of the minor children, when the personal property is of the value of four thousand dollars ($4,000) as against distributees or the value of two thousand dollars ($2,000) as against creditors.
    2. The right to such an allowance shall vest in the surviving spouse upon the death of his or her spouse, shall not terminate with his or her subsequent death or remarriage, and shall become his or her absolute property or the property of his or her estate upon death without restriction as to use, encumbrance, or disposition.
    3. If any of the minor children are not children of the surviving spouse, the allowance shall vest in the surviving spouse to the extent of one-half (½) thereof, and the remainder shall vest in the decedent's minor children in equal shares.
  1. Such furniture, furnishings, appliances, implements, and equipment as shall be reasonably necessary for the family use and occupancy of his or her dwelling shall be assigned to and vested in the surviving spouse, if any, provided he or she was living with the decedent at the time of his or her death.
  2. During a period of two (2) months after the death of the decedent, the surviving spouse and minor children, or either in the absence of the other, shall be entitled to receive from the estate such reasonable amount, not exceeding in the aggregate one thousand dollars ($1,000), as in the judgment of the court may be required for their sustenance, in accordance with the usual living standards of the family.
  3. The provisions of subsections (a)-(c) of this section shall be cumulative, and the provisions of subsections (b) and (c) of this section shall apply as against creditors and distributees.

History. Acts 1949, No. 140, § 108; 1951, No. 255, § 10; 1967, No. 287, § 8; 1981, No. 714, § 68; A.S.A. 1947, § 62-2501; Acts 2003, No. 177, §§ 1, 2.

Research References

Ark. L. Rev.

Comment, Arkansas Marriage: A Partnership Between a Husband and Wife, or a Safety Net for Support?, 61 Ark. L. Rev. 735.

Case Notes

Constitutionality.

The portion of this section which conferred dower rights upon a widow, but did not confer such rights upon a surviving husband was a gender based statute which did not serve an important governmental function and thus was unconstitutional, since it violated the equal protection clause of the Fourteenth Amendment to the United States Constitution. Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981), overruled in part, Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983) (decision under prior law).

Where widow of decedent elected to take against the will and petitioned for statutory allowances under this section, which provided allowances of $2,000.00 plus $500.00 sustenance to a widow, but not a widower, there was no way under the facts of the case and the statutory language to extend benefits to the disfavored class, and thus benefits had to be denied to both widowers and widows by declaring this section unconstitutional as applied. Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981) (decision under prior law).

A devisee and beneficiary of a decedent's will who was not an heir and who stood to lose financially if the decedent's wife claimed against the will pursuant to § 28-39-401 and received statutory allowances provided for in this section, had standing to challenge the constitutionality of both statutes since the test was whether the party would lose financially unless the issue was raised. Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981) (decision under prior law).

Purpose.

The legislature intended to make a statutory allowance for the joint use of the widow and minor children, regardless of the claims of creditors against the estate, and the statute of descent and distribution, therefore, does not apply to such an allowance. Moudy v. Bradley, 200 Ark. 630, 140 S.W.2d 113 (1940) (decision under prior law).

Applicability.

Act 714 of 1981, which created gender neutral awards of dower and curtesy under § 28-39-401 and allowances under this section, is substantive rather than procedural and therefore should not be applied retroactively. Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981); Hall v. Hall, 274 Ark. 266, 623 S.W.2d 833 (1981), cert. denied, 456 U.S. 916, 102 S. Ct. 1770 (1982).

Alternative Money Judgment.

It is improper to enter an alternative money judgment against an administrator unless it is shown that the specific articles are not in the hands of the administrator at the time the judgment is rendered. Cash v. Cash, 67 Ark. 278, 54 S.W. 744 (1899) (decision under prior law).

Appraisement for Administrator.

The allowance to the widow of specific articles of her husband's estate, not exceeding $150 in value, based upon the appraisement made for the administrator, instead of upon an appraisement made at the instance of the widow, was an irregularity merely and not prejudicial to the administrator. Cash v. Cash, 67 Ark. 278, 54 S.W. 744 (1899) (decision under prior law).

Corporate Property.

In a probate case, a circuit court erred in awarding property that was titled solely in the corporate name to the spouse as part of her statutory allowances; this section is applicable to the personal estate of the decedent. Chandler v. Harris, 2016 Ark. App. 155, 485 S.W.3d 716 (2016).

Effect of Court Orders.

Although a court did not order an estate vested in a widow, in a proceeding to compel her to account, she could show the value and avail herself of statutory benefits. Hampton v. Physick, 24 Ark. (11 Barber) 561 (1867) (decision under prior law).

An order of the probate court allowing administrator to pay to herself, as widow of the decedent, statutory allowances and in addition one-third of all personal property and one-third of the cash in a bank did not assume the force of a judgment which was affected, in any way, by a nunc pro tunc order. Moudy v. Bradley, 200 Ark. 630, 140 S.W.2d 113 (1940) (decision under prior law).

Equity Interest.

Where there was evidence to indicate that the estate may have included equity in an automobile, since the decedent had purchased the property, the administrator should have proceeded to pay for it from the assets of the estate, sold it as provided in § 28-49-107, obtained authority to abandon it as permitted under § 28-49-106, or applied to the court for assignment of it to her as part of her statutory allowance under this section, as she was accountable for it, either by accounting under the Probate Code or for conversion under § 28-49-105. Price v. Price, 253 Ark. 1124, 491 S.W.2d 793 (1973).

Estate Taxes.

Estate taxes, under the provisions of § 26-59-115 [repealed], were to be deducted from the property belonging to the widow as dower and allowance and as surviving tenant of the estate by the entirety as well as from the other assets. Terral v. Terral, 212 Ark. 221, 205 S.W.2d 198 (1947) (decision under prior law).

Estimating of Interest.

In estimating the amount of a widow's dower in personalty, the whole personal estate must be taken into consideration, including property taken under statutory provisions for special allowances. Sharp v. Himes, 129 Ark. 327, 196 S.W. 131 (1917) (decision under prior law).

Inventory of Property.

Although the administrator asserted that the only personal property of the estate was household furnishings, title to which vested in her under this section, without an inventory the court was in no position to determine whether all of the items claimed fell within the purview of allowances to the widow and minor children in order to make an appropriate assignment to them. Price v. Price, 253 Ark. 1124, 491 S.W.2d 793 (1973).

Jurisdiction.

The probate court did not have jurisdiction to order payment of a statutory allowance from a bank account held in the name of the decedent or her son, who died a few months after the death of the decedent, as the wife and son of the decedent's son, who claimed the bank account, were strangers to the estate. Smith v. Smith, 338 Ark. 526, 998 S.W.2d 745 (1999).

Late Claims.

A claim for widow's allowances filed more than 12 years after an administrator was appointed and nearly five months after the administrator's death, long after all personal estate had been used to pay debts and claims, was properly denied. Walls v. Phillips, 204 Ark. 365, 162 S.W.2d 59 (1942) (decision under prior law).

Where a husband disposed of all of his property by will without mention as to his widow's statutory allowances, the widow was entitled to these allowances, but where she did not ask for them while the executor had in his hands money to pay them and permitted him to expend the money in the payment of debts and expenses of administration, she was entitled only to such sum as the executor had on hand. Wofford v. James, 204 Ark. 700, 163 S.W.2d 710 (1942) (decision under prior law).

Marriage Settlement.

Although a marriage settlement was made in lieu of dower and homestead rights, it did not require a widow to waive her statutory rights, and she was entitled to both these allowances and their value. Masterson v. Masterson, 200 Ark. 193, 139 S.W.2d 30 (1940) (decision under prior law).

Minors' Interests.

Former statute did not require the appointment of a guardian for minor children to protect their interest in the allowance. Young v. Lowe, 148 Ark. 129, 229 S.W. 4 (1921) (decision under prior law).

Where there is a widow and a minor child and the widow does not have the care and custody of the child and is not its guardian, the widow and child are to share equally in the allowance and she cannot appropriate it to her own use to the exclusion of the minor. Moudy v. Bradley, 200 Ark. 630, 140 S.W.2d 113 (1940) (decision under prior law).

Nature of Allowances.

Allowances to a widow are in addition to dower. Ex parte Grooms, 102 Ark. 322, 143 S.W. 1063 (1912); Sharp v. Himes, 129 Ark. 327, 196 S.W. 131 (1917); Costen v. Fricke, 169 Ark. 572, 276 S.W. 579 (1925) (decision under prior law).

Statutory allowances held personal to the widow. Walls v. Phillips, 204 Ark. 365, 162 S.W.2d 59 (1942) (decision under prior law).

Statutory allowance of $1,000 (now $2,000) to surviving spouse held personal and for her benefit and therefore would not pass to her heirs, even though she was insane, from her husband's death until her own. Jeffcoat v. Harper, 224 Ark. 778, 276 S.W.2d 429 (1955) (decision under prior law).

Notice to Heirs.

The proceeding of a probate court to declare the estate in a widow is “in rem”, and notice to the heirs is not necessary. Harrison v. Lamar, 33 Ark. 824 (1878) (decision under prior law).

Partnership Property.

Former statute operated only on the personal property of a deceased, and so the widow of a member of the insolvent partnership was not entitled to statutory allowance out of the personal property of the partnership. McLerkin v. Schilling, 192 Ark. 1083, 96 S.W.2d 445 (1936) (decision under prior law).

Personalty Only Vested.

Value of personal estate only is to be considered in determining whether it may be vested in a widow or minor children. Wilson v. Massie, 70 Ark. 25, 65 S.W. 942 (1901) (decision under prior law).

An order of a probate court vesting land of a decedent, of value less than $300, in the widow was void. Calhoun v. Moore, 79 Ark. 109, 94 S.W. 931 (1906) (decision under prior law).

The allowance must be made out of the personal property and not from proceeds of real estate. Kitchens v. Jones, 87 Ark. 502, 113 S.W. 29 (1908) (decision under prior law).

Proceeds from Sale of Assets.

A widow was not barred from having the proceeds of a sale of husband's estate vested in her because of failure to have the estate appraised and make a claim for allowance before the sale. Henry v. Tillar, 70 Ark. 246, 67 S.W. 310 (1902) (decision under prior law).

Proceeds from Sale of Realty.

Where testator's property at death consisted of both personalty and realty, the will directed that the realty be sold and converted into cash, and the widow elected to take against the will and consented to the sale of the realty, the widow's allowance was limited to $1,000 (now $2,000), or the value of the personalty, whichever is the lesser. Atkinson v. Van Echaute, 236 Ark. 423, 366 S.W.2d 273 (1963) (decision under prior law).

Renunciation of Will.

Where a widow elects to take under law, and not under will, she takes as though husband had died intestate, without will, and she is entitled to dower, homestead, and other allowances. Jameson v. Jameson, 117 Ark. 142, 173 S.W. 851 (1915); Cypert v. McEuen, 172 Ark. 437, 288 S.W. 923 (1926) (decision under prior law).

Where a testator left only homestead and less than $300 in personal property and widow timely renounced the will and elected to take under a former statute, unappealed order of the probate court, having the effect of setting aside the realty to her and infant child as their homestead, entitled the widow to possession of the homestead even after her remarriage, though the will provided that, in such event, the property should go to the children. Lauck v. Burnett, 192 Ark. 547, 93 S.W.2d 129 (1936) (decision under prior law).

Request for Appraisement.

A widow lost no right and was not barred from having proceeds of the sale of the husband's estate vested in her because of the failure to have appraisement made in 30 days or at all. Wilson v. Massie, 70 Ark. 25, 65 S.W. 942 (1901) (decision under prior law).

Right to Allowances.

A widow was entitled to the articles specified unconditionally and against the rights of heirs and creditors. Hill's Adm'rs v. Mitchell, 5 Ark. (5 Pike) 608 (1844) (decision under prior law).

A widow's right to statutory allowances is not dependent upon her possession of any property of the estate. Lambert v. Tucker, 83 Ark. 416, 104 S.W. 131 (1907) (decision under prior law).

A widow who has elected to take under her husband's will is nevertheless entitled to take statutory allowances. Cypert v. McEuen, 172 Ark. 437, 288 S.W. 923 (1926); McEachin v. People's Nat'l Bank, 191 Ark. 544, 87 S.W.2d 12 (1935) (decision under prior law).

A probate court properly allowed to a widow one-third of the intestate's personal estate as well as a $300 allowance. Miller v. Oil City Iron Works, 184 Ark. 900, 45 S.W.2d 36 (1931) (decision under prior law).

A receipt signed by a widow for $100 paid to her by the testator upon execution of deeds to children did not affect the widow's right to statutory allowances. Spears v. Spears, 213 Ark. 15, 209 S.W.2d 105 (1948) (decision under prior law).

A widow's allowances are not extinguished by a release of dower and homestead rights. Spears v. Spears, 213 Ark. 15, 209 S.W.2d 105 (1948) (decision under prior law).

A widow is entitled to allowances under subsection (b) of this section although she also receives allowances under subsections (a) and (c). Horn v. Horn, 228 Ark. 948, 311 S.W.2d 311 (1958).

A widow was entitled to support of $500 (now $1,000), statutory allowance of $1,000 (now $4,000) and household goods as against distributees although she would have only been entitled to statutory allowance of $500 (now $2,000) as against complaining creditor. Wilson v. Davis, 239 Ark. 305, 389 S.W.2d 442 (1965) (decision under prior law).

Soil Conservation Subsidy.

A widow, either as such or as executor of her husband's estate, was not entitled to payment of subsidy under Soil Conservation Act that had been properly assigned by her husband. Oldham v. Wright, 202 Ark. 1049, 155 S.W.2d 50 (1941) (decision under prior law).

Timeliness.

In a probate case, because no final distribution had been made and possession of personal property was still vested with a personal representative, a spouse's request for her statutory allowances under this section was timely. Chandler v. Harris, 2016 Ark. App. 155, 485 S.W.3d 716 (2016).

Vesting of Estate.

The law vests an estate. Harrison v. Lamar, 33 Ark. 824 (1878) (decision under prior law).

When an estate was less than $300, it vested in the widow and minor children and was exempt from administration proceedings. Bertig v. Higgins, 89 Ark. 70, 115 S.W. 935 (1909) (decision under prior law).

An estate which did not exceed $300 in value vested absolutely in a widow and children free from creditor's claims. Jerry v. Sturdivant, 136 Ark. 624, 203 S.W. 694 (1918) (decision under prior law).

Wrongful Death at Hands of Spouse.

Section 28-11-204, which provides that when one spouse kills the other and is convicted of murder the spouse convicted shall not be “endowed” in the estate of the decedent, is intended to apply only to dower and curtesy and does not apply to a claim for a widow's statutory allowance under such circumstances. However, apart from such statute, the principle that one who wrongfully kills another will not be permitted to share in the other's estate or otherwise profit from the crime will apply to such a situation. Smith v. Dean, 226 Ark. 438, 290 S.W.2d 439 (1956), overruled, Zinger v. Terrell, 336 Ark. 423, 985 S.W.2d 737 (Ark. 1999).

Cited: Robinson v. Shivley, 234 Ark. 222, 351 S.W.2d 449 (1961); Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975); Owen v. Owen, 267 Ark. 532, 592 S.W.2d 120 (1980).

28-39-102. Right of surviving spouse to live in house for two months — Sustenance.

A surviving spouse may reside in the chief residence of the deceased spouse for two (2) months after death, whether or not dower or curtesy is assigned sooner, without being liable for any rent. In the meantime, the surviving spouse shall have a reasonable sustenance out of the estate of the deceased spouse.

History. Rev. Stat., ch. 52, § 17; C. & M. Dig., § 3530; Pope's Dig., § 4415; Acts 1981, No. 714, § 69; A.S.A. 1947, § 62-2501.1.

28-39-103. Extension of surviving spouse's quarantine.

If the dower or curtesy of any surviving spouse is not assigned and laid off within two (2) months after the death of a deceased spouse, the surviving spouse shall remain in and possess the chief residence of the deceased spouse, together with the land thereto attached, free of all rent, until dower or curtesy shall be laid off and assigned to the surviving spouse.

History. Rev. Stat., ch. 52, § 18; C. & M. Dig., § 3531; Pope's Dig., § 4416; Acts 1981, No. 714, § 70; A.S.A. 1947, § 62-2501.2.

Case Notes

In General.

A widow is entitled to continue in possession of the mansion-house until her dower is assigned, though she is the administrator and the heir is a minor. Trimble v. James, 40 Ark. 393 (1883).

Nature of Privilege.

A widow's right to hold the intestate's dwelling house and farm attached until assignment of dower is a personal privilege, not an estate in land, and cannot be transferred to another. Flowers v. Flowers, 84 Ark. 557, 106 S.W. 949 (1907).

Possession Through Tenants.

A widow may occupy the homestead of her deceased husband until dower is assigned to her, and she may hold this possession through tenants and receive the rents. Jarrett v. Jarrett, 113 Ark. 134, 167 S.W. 482 (1914); McDaniel v. Conlan, 134 Ark. 519, 204 S.W. 850 (1918).

Rental or Commercial Property.

Where an administrator contended that she was not accountable for rents collected on real estate because her dower had not been assigned and relied on this section, which permits a widow to retain possession of the dwelling house and farm attached until her dower is assigned to her, such an application should not be extended to urban property used for commercial purposes or as residential rental property, which cannot possibly be classified as a farm, even though this section should be liberally interpreted in favor of the widow. Price v. Price, 253 Ark. 1124, 491 S.W.2d 793 (1973).

Rights to Rents.

A widow is entitled to rents until dower is assigned, although she is the administrator. Mock v. Pleasants, 34 Ark. 63 (1879).

Where widow rented homestead which was subject to mortgage given by husband before marriage, she acquired no rights to rents, where before rents were due, the mortgagee brought suit to foreclose his lien and procured the appointment of a receiver to collect the rents. Wood v. Bigham, 170 Ark. 253, 279 S.W. 779 (1926).

Waiver.

Where a widow charged herself, as administrator, with the rents of her husband's mansion from the date of his death until dower was assigned, she was deemed to have waived her rights. Salinger v. Black, 68 Ark. 449, 60 S.W. 229 (1900).

28-39-104. Allowance paid surviving spouse out of rent until apportionment of curtesy or dower.

Until curtesy or dower is apportioned, the court shall order such sums to be paid to the surviving spouse out of the rent of the real estate as shall be in proportion to his or her interest in the real estate.

History. Rev. Stat., ch. 4, § 139; C. & M. Dig., § 89; Pope's Dig., § 89; Acts 1981, No. 714, § 71; A.S.A. 1947, § 62-2501.3.

Case Notes

Personal Right.

This right is personal to the widow and does not survive to her administrator, unless she has prosecuted her claims for rent during her lifetime. Burrus v. Butt, 126 Ark. 584, 191 S.W. 223 (1917).

Share of Rents.

Under this section, a widow is given the same proportion of rents, under the statute, collected from the real property of deceased, whether rents be treated as personalty or as part of the realty. Mayo v. Arkansas Valley Trust Co., 132 Ark. 64, 200 S.W. 505 (1917).

Cited: Less v. Less, 147 Ark. 432, 227 S.W. 763 (1921); Price v. Price, 253 Ark. 1124, 491 S.W.2d 793 (1973); Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975).

28-39-105. Advancements to minor distributees.

If the court finds that the estate is evidently solvent and that the share of a distributee who is a minor is sufficient to provide therefor, the court may order the personal representative to pay an allowance, reasonable according to the usual standard of living of the family, to the guardian of the person or estate of the minor distributee for his or her maintenance, care, or education, and to charge the allowance against the share of the distributee.

History. Acts 1949, No. 140, § 109; A.S.A. 1947, § 62-2502.

Case Notes

Discretion of Court.

An administrator stricti juris had no right to make expenditures out of the assets of an estate for the support of the children of the intestate; however, in a suit by the heirs against him for an account, the chancellor could exercise a discretion in allowing them if they were made in good faith. Martin v. Campbell, 35 Ark. 137 (1879) (decision under prior law).

Factors Determining Amount.

In an accounting by an administrator for expenditure for maintenance and education of a minor son of the intestate, credit should be allowed only for such expenditures as were in keeping with the son's station in life and the value of the estate. Alcorn v. Alcorn, 183 Ark. 342, 35 S.W.2d 1027 (1931) (decision under prior law).

Provisions of Will.

Where decedent's will provided that his daughter should be educated out of the assets of his estate and the executor and guardian executed a note to an individual for such expenses who presented the note to the probate court for allowance in the presence of the administrator in succession, the claim was properly allowed as against contention by the administrator that it was not a claim against the estate but was a debt against the guardian and as such was barred by the statute of limitations. Perry v. Field, 40 Ark. 175 (1882) (decision under prior law).

Subchapter 2 — Homestead Rights

Cross References. Homestead rights of widow and children, Ark. Const., Art. 9, § 6.

Rural homesteads, limitations, Ark. Const., Art. 9, § 4.

Urban homesteads, limitations, Ark. Const., Art. 9, § 5.

Effective Dates. Acts 1873, No. 105, § 11: effective on passage.

Acts 1981, No. 663, § 9: Mar. 23, 1981. Emergency clause provided: “It has been found and is declared by the General Assembly of Arkansas that existing law relating to homestead does not in all circumstances provide for equal treatment between the sexes, that the constitutionality of such existing law has been drawn into question by decisions of the United States Supreme Court and the Arkansas Supreme Court, and that there is an urgent need to insure that the law provides equality in the rights and interests of a surviving spouse in the homestead of his or her deceased spouse, without reference to the sex of the surviving spouse. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from the date of its approval.”

Acts 1981, No. 714, § 75: Mar. 25, 1981. Emergency clause provided: “It has been found and is declared by the General Assembly of Arkansas that existing law relating to such matters as homestead, dower, curtesy, statutory allowances payable from a decedent's estate, and the right of a surviving spouse to take against the will of a decedent, do not in all circumstances provide for equal treatment between the sexes, that the constitutionality of such existing law has been drawn into question by decisions of the United States Supreme Court and the Arkansas Supreme Court, and that there is an urgent need to insure that the law provides equality in the property rights and interests of married persons. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from the date of its approval.”

Research References

Am. Jur. 40 Am. Jur. 2d, Homestead, § 152 et seq.

C.J.S. 40 C.J.S., Homesteads, § 165 et seq.

U. Ark. Little Rock L.J.

Legislative Survey, Decedents' Estates, 4 U. Ark. Little Rock L.J. 591.

28-39-201. Rights of surviving spouse and children.

  1. If the owner of a homestead dies leaving a surviving spouse, but no children, and the surviving spouse has no separate homestead in his or her own right, the homestead shall be exempt, and the rents and profits thereof shall vest in the surviving spouse during his or her natural life.
  2. However, if the owner leaves one (1) or more children, the child or children shall share with the surviving spouse and be entitled to one-half (½) the rents and profits till each of them arrives at twenty-one (21) years of age, each child's right to cease at twenty-one (21) years of age, and the shares to go to the younger children and then all to go to the surviving spouse. The surviving spouse or children may reside on the homestead or not.
  3. In case of the death of the surviving spouse, all of the homestead shall be vested in the minor children of the original homestead owner.
  4. Any rights and benefits given by this section shall not vest until the parties have been continuously married to each other for a period in excess of one (1) year.

History. Acts 1981, No. 663, § 5; A.S.A. 1947, § 30-225.

Publisher's Notes. In Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981), the Arkansas Supreme Court held that various statutes containing dower provisions were unconstitutional under the Fourteenth Amendment to the U.S. Constitution because they were gender-based and did not serve an important governmental function. The statutes involved (§§ 28-11-101, 28-11-201, 28-11-301, 28-11-303, 28-11-306, 28-39-101, 28-39-401) have since been amended to delete the gender-based classifications. The court recognized in the Stokes case that Ark. Const., Art. 9, § 6, which determines the homestead rights of a surviving widow and children, is also gender-based but refrained from passing on the validity of the section since homestead rights were not involved in the case. In response to this decision, the Arkansas General Assembly enacted the Homestead Exemption Act of 1981 (§§ 16-66-210, 28-39-201), which provides a homestead exemption that is not gender-based.

Research References

Ark. L. Notes.

Laurence, Does Arkansas's Homestead Exemption Survive a Divorce? Should It?, 1988 Ark. L. Notes 15.

Ark. L. Rev.

Comment, Arkansas Marriage: A Partnership Between a Husband and Wife, or a Safety Net for Support?, 61 Ark. L. Rev. 735.

U. Ark. Little Rock L.J.

Legislative Survey, Property, 4 U. Ark. Little Rock L.J. 607.

Case Notes

Grandchildren.

This section follows the language of Ark. Const., Art. 9, § 6; as in the Constitution, this section does not mention or provide for grandchildren. McCoy v. Walker, 317 Ark. 86, 876 S.W.2d 252 (1994).

The minor grandchildren of a decedent who would inherit from the decedent under the laws of descent and distribution do not have homestead rights under this section, because they do not fall within the definition of “child” in § 28-1-102(a)(1). McCoy v. Walker, 317 Ark. 86, 876 S.W.2d 252 (1994).

Spouse.

Trial court did not err in finding a wife was entitled to a homestead share of a testator's estate under subsection (a) of this section despite the fact that they had been separated for 17 years, a the evidence showed the wife did not intend to abandon the marital home but intended to return when the wife felt the testator was no longer abusive. Sexton v. Sexton (In re Sexton), 2011 Ark. App. 163, 382 S.W.3d 679 (2011).

28-39-202. Petition to reserve homestead.

  1. Whenever any resident of this state shall die, leaving a surviving spouse or children who may desire to claim the benefit of Arkansas Constitution, Article 9, §§ 6 and 10 or § 28-39-201, he or she shall file with the probate clerk of the circuit court of the county in which the homestead is situated an accurate description of the land so claimed, or, if the land is a lot in any city, town, or village, a description of the lot shall be filed, and the surviving spouse and children shall apply to have the land or lot reserved from sale.
  2. Immediately after the filing of the description and application, it shall be the duty of the clerk to enter upon the records of the court that the homestead has been duly reserved from sale upon the application of the claimant.

History. Acts 1873, No. 105, §§ 1, 2, p. 244; C. & M. Dig., §§ 5525, 5526; Pope's Dig., §§ 7164, 7165; Acts 1981, No. 714, § 43; A.S.A. 1947, §§ 62-601, 62-602; Acts 2003, No. 1185, § 274.

Case Notes

Husband's Interest.

Husband's interest in wife's ancestral lands is fixed by former § 61-228 (repealed), and the law gives the husband no additional right of homestead in his deceased wife's land. Trice v. Miller, 217 Ark. 229, 229 S.W.2d 233 (1950).

Laches.

A widow is entitled to have dower and homestead allotted and admeasured in time in the land if it can be done without great prejudice to the parties; therefore, a widow was entitled to have the order of a probate court assigning her dower and homestead affirmed, and laches could not be urged by the son against his mother, the widow, inasmuch as he had entered into an agreement with his mother and brother as to farming the land, he also having agreed to the report of the commissioners allotting the dower and homestead lands. Marsh v. Marsh, 230 Ark. 59, 320 S.W.2d 754 (1959).

Meaning of “Lot.”

Town or city lot was understood to be the piece of ground on which the head of a family had a house, with appurtenances, maintained as a home, without regard to whether it contained more or less than one lot according to the plat or survey of the city or town. Wassell v. Tunnah, 25 Ark. 101 (1867) (decision under prior law).

Selection of Homestead.

The domicile of the wife and minor children follows that of the husband, and their actual personal residence at the homestead place is not necessary to perfect the right in him, or to entitle them to the benefit of it after his death. Where the head of a family has, in good faith, selected a place of residence, owns the land, and has entered and resides upon it, the absence of the wife and children might require stronger proof of intention, but nothing more. Johnston v. Turner, 29 Ark. 280 (1874).

Vesting.

A clerk's reservation under this section does not vest the homestead in a widow, and such vesting does not occur until the commissioners appointed under § 28-39-203 have reported; even then vesting is subject to contest as provided in §§ 28-39-20328-39-206. Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975).

Cited: Price v. Price, 253 Ark. 1124, 491 S.W.2d 793 (1973); Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975).

28-39-203. Appraisal of homestead — Effect.

  1. Upon written application to the clerk by any party interested in the estate of a deceased person, setting forth that the homestead so claimed by the surviving spouse or children, if a lot in any city, town, or village, exceeds the value of two thousand five hundred dollars ($2,500), it shall be the duty of the clerk to appoint forthwith three (3) trustworthy and disinterested citizens of the county as commissioners.
  2. After having been duly summoned and sworn by the clerk for that purpose, the commissioners shall proceed without delay to make a fair appraisal of the value of the lot, with the dwellings and appurtenances thereon. Within ten (10) days thereafter, they shall return the appraisal to the office of the clerk, to be by him or her immediately filed.
  3. If a majority of the commissioners decides that the lot so claimed as a homestead is within the valuation prescribed by the Arkansas Constitution, then it shall be the duty of the clerk to make an entry upon the records of the court, reciting the proceedings had and the return of the commissioners, and vesting the homestead in the party or parties claimant, and, also, to tax the costs of the proceedings against the party at whose instance the appraisal was made.
  4. However, if the decision is that the lot exceeds in value the amount exempted by the Arkansas Constitution, it shall be the duty of the clerk to note the excess upon the record and tax the costs of the proceedings to the claimants.

History. Acts 1873, No. 105, §§ 3, 4, p. 244; C. & M. Dig., §§ 5527 — 5529; Pope's Dig., §§ 7166 — 7168; Acts 1981, No. 714, § 44; A.S.A. 1947, §§ 62-603, 62-604.

Case Notes

Cited: Price v. Price, 253 Ark. 1124, 491 S.W.2d 793 (1973).

28-39-204. Sale of homestead exceeding value limitations.

  1. Whenever it shall be made to appear to the satisfaction of the court having probate jurisdiction, by the appraisal of the commissioners provided for in this chapter, that the lot exceeds in value the sum of two thousand five hundred dollars ($2,500), it shall be the duty of the court to order the lot to be sold by the sheriff of the county, at public auction to the highest bidders, for cash in hand, within sixty (60) days after the making of the order, and, upon thirty (30) days' advertisement of the sale and actual written notice served upon the surviving spouse and children, as to the time, place, and terms of the sale.
    1. It shall be the duty of the sheriff, should the lot bring more than two thousand five hundred dollars ($2,500), to pay over immediately the excess to the administrator or executor of the estate of the deceased and to hold the two thousand five hundred dollars ($2,500), subject to the order of the court or the judge, either in term time or in vacation, as the case may be.
    2. It shall be the duty of the court to require a full and particular account of the action of the sheriff in the premises, which shall be filed with the clerk of the court within ten (10) days after the sale.
    3. At any time after the filing of the statement, the court or judge shall make an order allowing the surviving spouse or children, as the case may be, to select a homestead in any part of the state, which is to be paid for under the direction and supervision of the court, or judge in vacation.
  2. If the lot does not bring more than the sum of two thousand five hundred dollars ($2,500), it shall not be again offered for sale, but shall thereafter constitute the homestead of the surviving spouse or children.

History. Acts 1873, No. 105, § 5, p. 244; C. & M. Dig., §§ 5530-5534; Pope's Dig., §§ 7169-7173; Acts 1981, No. 714, §§ 45, 46; A.S.A. 1947, §§ 62-605, 62-606.

Case Notes

Value Erroneous.

A court did not err in not ordering a sale under this section where the value as fixed by the commissioners was erroneous. Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975).

28-39-205. Contest of commissioners' report.

  1. Either party may put in issue the truth of the report of the commissioners, by a petition filed in the court having probate jurisdiction.
  2. A summons shall be issued as in other cases, giving at least fifteen (15) days' notice to the adverse party, requiring him or her to appear and answer.
  3. The costs of these proceedings shall be paid as in other cases.

History. Acts 1873, No. 105, § 6, p. 244; C. & M. Dig., § 5535; Pope's Dig., § 7174; A.S.A. 1947, § 62-607.

Case Notes

Cited: Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975).

28-39-206. [Repealed.]

Publisher's Notes. This section, concerning appeal, was repealed by Acts 2001, No. 952, § 1. The section was derived from Acts 1873, No. 105, § 7, p. 244; C. & M. Dig., § 5536; Pope's Dig., § 7175; Acts 1981, No. 714, § 47; A.S.A. 1947, § 62-608.

28-39-207. Disturbance of possession — Penalty.

When the provisions of the foregoing sections have been complied with by the parties claimant, any administrators or executors of the estate of the deceased who shall assume the possession of or in any manner disturb the surviving spouse or children of the deceased in the enjoyment of the homestead, or undertake to sell the homestead, shall be adjudged guilty of a misdemeanor. Upon conviction, the administrator or executor shall be imprisoned in the county jail for a term not less than one (1) month nor more than two (2) months and shall be fined in any sum not less than one hundred dollars ($100) nor more than five hundred dollars ($500) and shall also be liable upon his or her official bond to the injured parties in twice the amount of damages which they may have sustained.

History. Acts 1873, No. 105, § 9, p. 244; C. & M. Dig., § 5538; Pope's Dig., § 7177; Acts 1981, No. 714, § 48; A.S.A. 1947, § 62-609.

Case Notes

Rights of Purchaser Under Void Sale.

A purchaser at a sale of a homestead contrary to law, and by which sale the administrator was guilty of a violation of this section, was not an accomplice in the guilt (although he was an appraiser of the homestead) where he did not advise and encourage the sale; and, as such, the purchaser at the void sale was entitled to subrogation to the rights of the creditors whose claims were discharged by payment of the purchase money realized from the sale. Bond v. Montgomery, 56 Ark. 563, 20 S.W. 525 (1892); Harris v. Watson, 56 Ark. 574, 20 S.W. 529 (1892); Johnson v. Taylor, 140 Ark. 100, 215 S.W. 162 (1919).

Subchapter 3 — Assignment of Dower and Curtesy

Cross References. Provisions in lieu of dower, effect, election, § 28-11-401 et seq.

Effective Dates. Acts 1857, § 5, p. 167: effective on passage.

Acts 1981, No. 714, § 75: Mar. 25, 1981. Emergency clause provided: “It has been found and is declared by the General Assembly of Arkansas that existing law relating to such matters as homestead, dower, curtesy, statutory allowances payable from a decedent's estate, and the right of a surviving spouse to take against the will of a decedent, do not in all circumstances provide for equal treatment between the sexes, that the constitutionality of such existing law has been drawn into question by decisions of the United States Supreme Court and the Arkansas Supreme Court, and that there is an urgent need to insure that the law provides equality in the property rights and interests of married persons. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from the date of its approval.”

Research References

Am. Jur. 25 Am. Jur. 2d, Dower, § 28 et seq.

Ark. L. Rev.

Estate Planning with Disclaimers in Arkansas, 27 Ark. L. Rev. 411.

C.J.S. 28 C.J.S., Dower, § 85 et seq.

U. Ark. Little Rock L.J.

Tyler, Survey of Business Law, 3 U. Ark. Little Rock L.J. 149.

28-39-301. Assignment by heir — Acceptance.

  1. It shall be the duty of the heir at law of any estate of which the surviving spouse is entitled to dower or curtesy to lay off and assign the dower or curtesy as soon as practicable after the death of the deceased spouse. If the heirs to any estate are minors, they shall act, in the assignment of dower or curtesy, by their guardians.
  2. If the dower or curtesy assigned by the heir at law is accepted by the surviving spouse, the heir at law shall make a statement of the assignment, specifying what lands have been assigned, and the acceptance of the surviving spouse shall be endorsed thereon.
  3. The statements and specification of dower or curtesy, and acceptance thereof, shall be proved or acknowledged by both parties and filed with and recorded by the probate clerk of the circuit court, which will then be a sufficient assignment of dower or curtesy and shall bar any further demand for dower or curtesy in the property specified in the statement.

History. Rev. Stat., ch. 52, §§ 29-31; C. & M. Dig., §§ 3544-3546; Pope's Dig., §§ 4430-4432; Acts 1981, No. 714, §§ 49-51; A.S.A. 1947, §§ 62-701 — 62-703.

Case Notes

Assignment.

Dower in lands is assigned by the heirs and in the personal property by the administrator. Hill's Adm'rs v. Mitchell, 5 Ark. (5 Pike) 608 (1844).

Commutation.

Dower under Arkansas law includes, by definition, the possibility of commutation to a sum certain. Mauldin v. United States, 468 F. Supp. 422 (E.D. Ark. 1979).

Conveyance of Unassigned Dower.

A widow cannot dispose of her dower interest until it has been assigned. Jacks v. Dyer, 31 Ark. 334 (1876).

If a widow conveys her unassigned dower interest, the heir may recover possession of the land from the widow's vendee, for the conveyance gives him a right only to have her dower set aside and assigned to him, her right of occupancy being personal and not transferable. Stull v. Graham, 60 Ark. 461, 31 S.W. 46 (1895); Brinkley v. Taylor, 111 Ark. 305, 163 S.W. 521 (1914).

A conveyance by a widow of unassigned dower has been upheld in equity. Weaver v. Rush, 62 Ark. 51, 34 S.W. 256 (1896); Barnett v. Meacham, 62 Ark. 313, 35 S.W. 533 (1896).

Effect of Assignment.

Where a widow and her daughters agreed, by reference to actuarial tables, that the present cash value of the widow's commuted life interest in real estate left by the decedent was $17,991.36, this amount was paid to the widow in cash out of the estate, and it was not necessary to sell any of the realty; and where on payment to the widow of her commuted dower and homestead, the heirs at law became unconditionally entitled to the fee in their father's lands, this $17,991.36 qualified for the marital deduction under section 2056 of the Internal Revenue Code (26 U.S.C. § 2056). Mauldin v. United States, 468 F. Supp. 422 (E.D. Ark. 1979).

Failure to Assign.

Occupancy of homestead was not adverse to heirs where they failed to assign dower. Boyd v. Epperson, 149 Ark. 527, 232 S.W. 939 (1921).

Nature of Dower Interest.

Until it is assigned to her, a widow's dower is merely a right to compel the setting aside to her of her dower interest, and not an estate in itself, but, when assigned, it becomes a life estate in the lands assigned. Bradham v. United States, 287 F. Supp. 10 (W.D. Ark. 1968).

Possession by Administrator.

The inheritance is cast upon the heir, and it is his duty to assign the widow's dower; however, until the debts are paid the administrator is entitled to possession. Menifee's Adm'rs v. Menifee, 8 Ark. (3 English) 9 (1847), and Morrill v. Menifee, 5 Ark. (5 Pike) 629 (1844).

Release of Unassigned Dower.

A widow may, before assignment, release to the persons holding legal title. Reed v. Ash, 30 Ark. 775 (1875).

Right to Possession.

Though the heir is a minor, a widow is still entitled to remain in possession until dower is assigned. Trimble v. James, 40 Ark. 393 (1883); Wallace v. King, 205 Ark. 681, 170 S.W.2d 377 (1943).

Tardiness.

Since this section places the duty of allotting dower or curtesy upon the heir at law, the fact that the surviving husband was tardy in filing his petition for allotment of curtesy will not be considered a waiver against the remaining funds, particularly when such a waiver would work in favor of the heir at law who had the duty to allot curtesy. Quick v. Davidson, 261 Ark. 38, 545 S.W.2d 917 (1977).

Cited: Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981).

28-39-302. Assignment by heir — Grant of severance rights required.

  1. The heirs in any estate cannot assign or secure an assignment of dower or curtesy in lands in this state unless and until the heirs of the estate comply with the provisions set out in subsections (b) and (c) of this section.
  2. Before assignment of dower or curtesy can be made by the heirs as against a surviving spouse, the heirs shall first execute an agreement, or the agreement of a guardian shall be approved by the court, by which agreement the surviving spouse is given permission to sell timber on lands set aside to the surviving spouse under selective cutting practices as used or adopted by general practice in the area where the land is situated.
  3. In addition to rights granted in subsection (b) of this section, the heirs shall grant, by proper agreement, to the surviving spouse, the right to execute good, valid, and binding oil and gas leases covering lands set aside to the surviving spouse by which the surviving spouse shall receive the bonus money for any lease and receive the delay rentals so long as they are payable, or so long as the surviving spouse lives.
  4. Should there be production of oil or gas under any lease executed by the surviving spouse, he or she shall be entitled to receive the royalty payments so long as the surviving spouse lives.

History. Acts 1961, No. 189, §§ 1-4; 1981, No. 714, §§ 63-66; A.S.A. 1947, §§ 62-722 — 62-725.

Research References

U. Ark. Little Rock L.J.

Wright, The Arkansas Law of Oil and Gas, 9 U. Ark. Little Rock L.J. 223.

28-39-303. Proceedings for allotment.

  1. If dower or curtesy is not assigned to the surviving spouse within one (1) year after the death of his or her spouse, or within three (3) months after demand made therefor, the surviving spouse may file a written petition in the circuit court. This petition shall include a description of the lands in which he or she claims dower or curtesy, the names of those having interest in the lands, and the amount of the interest briefly stated in ordinary language with a prayer for the allotment of dower or curtesy. All persons interested in the property shall be summoned to appear and answer the petition.
  2. Upon the petition's by all interested in the property being filed, or upon a summons being served upon all who have an interest in the property, the circuit court may make an order for the allotment of dower or curtesy according to the rights of the parties by commissioners appointed according to law.
  3. Parties interested may be constructively summoned, as provided by Rule 4 of the Arkansas Rules of Civil Procedure.
    1. No verification shall be required to the petition or answer.
    2. Petitions for dower or curtesy shall be heard and determined by the court without the necessity of formal pleading upon the petition, answer, exhibits, and other testimony.
  4. If the petition is filed against infants or persons of unsound mind, the guardian or committee may appear and defend for them and protect their interests, and, if the guardian or committee does not appear and defend, the court shall appoint some discreet person for that purpose.
  5. If any person summoned, as provided in this section, desires to contest the rights of the petitioner or the statements in the petition, he or she shall do so by a written answer, and the questions of the law and fact thereupon arising shall be tried and determined by the circuit court.
  6. The costs of the division and allotment shall be apportioned among the parties in the ratio of their interests, and the costs arising from any contest of fact or law shall be paid by the party adjudged to be in the wrong.

History. Rev. Stat., ch. 52, §§ 32, 37, 39; Civil Code, §§ 538-541, 543, 547, 548; C. & M. Dig., §§ 3547-3552, 3560; Pope's Dig., §§ 4433-4438, 4446; Acts 1981, No. 714, §§ 52-54; A.S.A. 1947, §§ 62-704 — 62-710, 62-721; Acts 2003, No. 1185, § 275; 2013, No. 1148, § 59.

Amendments. The 2013 amendment substituted “by Rule 4 of the Arkansas Rules of Civil Procedure” for “in § 16-58-130” in (c).

Case Notes

Actions.

The executors of a deceased husband may not bring an action to have dower set aside to the widow. Jameson v. Davis, 124 Ark. 399, 187 S.W. 314 (1916).

Estoppel.

Where widow joined with deceased's son in petitioning that certain lands be awarded to him, she was thereafter estopped to assert a claim for dower against the purchaser from the son. Owen v. Cox, 122 Ark. 78, 182 S.W. 559 (1916).

Evidence.

There is no authority that would allow the probate court to receive evidence of the property's value and then place a value on the property accordingly. In re Estate of Jones, 317 Ark. 606, 879 S.W.2d 433 (1994).

Jurisdiction.

This statutory remedy does not oust the jurisdiction of equity. Johnson v. Johnson, 84 Ark. 307, 105 S.W. 869 (1907) (decision under prior law).

Where dower was not allotted to a widow by the probate court, although a petition was filed in the court and no final judgment rendered thereby, an action was not barred in chancery court for an allotment of dower. Kendall v. Crenshaw, 116 Ark. 427, 173 S.W. 393 (1915) (decision under prior law).

Where a probate court assumes jurisdiction to allot dower in personalty, a chancery court should not interfere. Shields v. Shields, 183 Ark. 44, 34 S.W.2d 1068 (1931) (decision under prior law).

The power of a probate court to assign dower under this subchapter does not deprive a chancery court of its inherent jurisdiction; rather, the jurisdiction of these courts to assign dower is concurrent. Doss v. Taylor, 244 Ark. 252, 424 S.W.2d 541 (1968) (decision under prior law).

Laches.

A widow is entitled to have dower and homestead allotted and admeasured in time in the land if it can be done without great prejudice to the parties; therefore, a widow was entitled to have an order of a probate court assigning her dower and homestead affirmed, and laches could not be urged by the son against his mother, the widow, inasmuch as he had entered into an agreement with his mother and brother as to farming the land, he also having agreed to the report of the commissioners allotting the dower and homestead lands. Marsh v. Marsh, 230 Ark. 59, 320 S.W.2d 754 (1959).

Limitations.

The statute of limitations runs in favor of a stranger from the date of the husband's death. Stidham v. Matthews, 29 Ark. 650 (1874).

A claim for dower is not barred by limitation so long as the heirs continue in possession. Livingston v. Cochran, 33 Ark. 294 (1878); McWhirter v. Roberts, 40 Ark. 283 (1883).

Notice.

Where record is silent it will be presumed that notice was given. Briggs v. Manning, 80 Ark. 303, 80 Ark. 304, 97 S.W. 289 (1906).

Notice may be given before the application is filed. Briggs v. Manning, 80 Ark. 303, 80 Ark. 304, 97 S.W. 289 (1906).

Failure to summon all interested persons invalidates an allotment. Cunningham v. Dellmon, 151 Ark. 409, 237 S.W. 450 (1922).

Section 28-49-104, relating to compromise of claims, was inapplicable to petition of widow, as administrator, alleging that estate was insufficient to satisfy dower and statutory rights of widow or to pay claims and expenses of administration in full and seeking full distribution of assets in exchange of her payment of claims and expenses, and order granting petition would be set aside where notice provided by this section was not given. Wilson v. Davis, 239 Ark. 305, 389 S.W.2d 442 (1965).

Parties.

The heirs and devisees are necessary parties to a suit to have dower set aside to the wife. Jameson v. Davis, 124 Ark. 399, 187 S.W. 314 (1916).

Petition.

No dower can be assigned in lands not embraced in a petition. Falls v. Wright, 55 Ark. 562, 18 S.W. 1044 (1892).

A petition alleging that the plaintiff is the widow of the deceased, who was a citizen of the county, and who died possessed of certain property set out in a schedule attached to the petition, states facts sufficient to give a probate court jurisdiction to assign dower in the property. Carter v. Younger, 112 Ark. 483, 166 S.W. 547 (1914).

Service.

Where demand was made by surviving husband for the allotment of curtesy and the demand was addressed to the beneficiary under the will as executor, the court would refuse to quash service since beneficiary was actually served personally, even though it was in his capacity as executor. Anderson v. Parker, 229 Ark. 683, 317 S.W.2d 721 (1958).

Cited: Bradham v. United States, 287 F. Supp. 10 (W.D. Ark. 1968).

28-39-304. Assignment by commissioners.

  1. In all cases when it orders and decrees dower or curtesy to any surviving spouse, the court shall appoint three (3) commissioners of the vicinity who shall proceed to the premises in question and, by survey and measurement, lay off and designate by proper metes and bounds the dower or curtesy of the surviving spouse, in accordance with the decree of the court.
  2. In all assignments of dower or curtesy to any surviving spouse, it shall be the duty of the commissioners, who may be appointed to lay off the dower or curtesy, if the estate will permit such a division without essential injury, to lay off the dower or curtesy in the lands of the deceased spouse so that the usual dwelling of the deceased spouse and family shall be included in the assignment of dower or curtesy to the surviving spouse.
  3. The commissioners appointed to lay off dower or curtesy in the lands of the deceased spouse, under existing laws, shall lay off the dower or curtesy on any part of the lands of the deceased at the request of the surviving spouse who is to be endowed, whether the lands shall include the usual dwelling of the deceased spouse and family or not, if it can be done without essential injury to the estate.
  4. The commissioners shall make a detailed report of their proceedings to the next term of the court.
  5. Upon the report's being returned, the court may confirm or set the report aside or remand it to the commissioners for correction. If approved by the court, the report shall be entered of record and be conclusive on the parties.

History. Rev. Stat., ch. 52, §§ 19, 40, 41; Acts 1857, § 1, p. 167; Civil Code, § 545; C. & M. Dig., §§ 3532, 3533, 3553-3555; Pope's Dig., §§ 4417, 4418, 4439-4441; Acts 1981, No. 714, §§ 55-57, A.S.A. 1947, §§ 62-711 — 62-715.

Case Notes

Appeal.

The fact that appellants did not appeal from order approving commissioner's report prior to probate court's final order, even though they might have done so, did not constitute a bar to a later appeal. Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975).

Distinct Rights.

Dower and homestead are distinct rights, and widow is entitled to one-third of husband's realty, including homestead, and may have it laid off elsewhere than upon the homestead. Horton v. Hilliard, 58 Ark. 298, 24 S.W. 242 (1893); Jameson v. Jameson, 117 Ark. 142, 173 S.W. 851 (1915); Arbaugh v. West, 127 Ark. 98, 192 S.W. 171 (1917).

Homestead.

The commissioners must take notice of the homestead. Horton v. Hilliard, 58 Ark. 298, 24 S.W. 242 (1893).

Cited: Phillips v. First Nat'l Bank, 179 Ark. 605, 17 S.W.2d 298 (1929); Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975).

28-39-305. Rental of indivisible property.

In cases in which lands or tenements will not permit division, the court, being satisfied of that fact or on the report of the commissioners to that effect, shall order that the tenements or lands be rented out and that one-third (1/3) part of the proceeds be paid to the surviving spouse in lieu of dower or curtesy in the lands or tenements.

History. Rev. Stat., ch. 52, § 42; C. & M. Dig., § 3556; Pope's Dig., § 4442; Acts 1981, No. 714, § 58; A.S.A. 1947, § 62-716.

Case Notes

No Sale of Tenements.

Where a widow renounced the will and a building could not be divided in order to set apart a portion for dower, she was entitled only to one-third part of the rental proceeds from the realty in lieu of dower, but not to have the building sold to satisfy her dower interest. Harrison v. Harrison, 234 Ark. 271, 351 S.W.2d 441 (1961).

Cited: Webber v. Webber, 331 Ark. 395, 962 S.W.2d 345 (1998).

28-39-306. Sale of property indivisible without prejudice.

In proceedings in the circuit court for the allotment of dower or curtesy, when it appears to the court that dower or curtesy cannot be allotted out of the real estate without great prejudice to the surviving spouse or heirs and that it will be most to the interest of the parties that the real estate may be sold, the court may decree a sale of the real estate free from the dower or curtesy and decree that a portion of the proceeds may be paid to the surviving spouse in lieu of the dower or curtesy or interest otherwise secured to the surviving spouse as to the court may seem equitable and just.

History. Acts 1873, No. 53, § 10, p. 113; C. & M. Dig., § 3534; Pope's Dig., § 4419; Acts 1981, No. 714, § 59; A.S.A. 1947, § 62-717.

Case Notes

In General.

This section was not repealed by the Constitution of 1874. Johnson v. Johnson, 84 Ark. 307, 105 S.W. 869 (1907).

The right of a widow under this section is effective as of the date of death of the decedent. Bradham v. United States, 287 F. Supp. 10 (W.D. Ark. 1968).

Allotment.

If dower cannot be carved out of specific property, it should be allotted out of the proceeds thereof. Johnson v. Johnson, 92 Ark. 292, 122 S.W. 656 (1909).

There is no authority that would allow the probate court to receive evidence of the property's value and then place a value on the property accordingly. In re Estate of Jones, 317 Ark. 606, 879 S.W.2d 433 (1994).

Commutation.

Dower under Arkansas law includes, by definition, the possibility of commutation to a sum certain. Mauldin v. United States, 468 F. Supp. 422 (E.D. Ark. 1979).

Cited: Marsh v. Marsh, 230 Ark. 59, 320 S.W.2d 754 (1959); Gibson v. Gibson, 266 Ark. 622, 589 S.W.2d 1 (1979); Webber v. Webber, 331 Ark. 395, 962 S.W.2d 345 (1998).

28-39-307. Rights of surviving spouse when dower or curtesy land alienated by heir.

If the heir alienates lands of which a surviving spouse is entitled to dower or curtesy, he or she shall still be decreed his curtesy or her dower in the lands so alienated, in whosesoever hands the land may be.

History. Rev. Stat., ch. 52, § 49; C. & M. Dig., § 3558; Pope's Dig., § 4444; Acts 1981, No. 714, § 61; A.S.A. 1947, § 62-719.

28-39-308. Surviving spouse's bequest of growing crop.

A surviving spouse may bequeath the crop in the ground of the land held by him or her in curtesy or dower at the time of his or her death. If he or she dies intestate, the crop shall go to his or her administrator.

History. Rev. Stat., ch. 52, § 50; C. & M. Dig., § 3559; Pope's Dig., § 4445; Acts 1981, No. 714, § 62; A.S.A. 1947, § 62-720.

28-39-309. Recovery of dower or curtesy lands taken from surviving spouse — Damages.

If the land assigned and laid off to any surviving spouse is deforced from his or her possession, the surviving spouse shall have an action for the recovery of possession of the land, with double damages for the deforcement, or a surviving spouse may sue for the damages alone and recover double the actual damage sustained from time to time, until the surviving spouse is put in possession of the dower or curtesy held by the deforcer or detainer.

History. Rev. Stat., ch. 52, § 48; C. & M. Dig., § 3557; Pope's Dig., § 4443; Acts 1981, No. 714, § 60; A.S.A. 1947, § 62-718.

Subchapter 4 — Taking Against the Will

Effective Dates. Acts 1970 (1st Ex. Sess.), No. 14, § 4: Mar. 13, 1970. Emergency clause provided: “It appearing that the Legislature, in enacting The Arkansas Inheritance Code of 1969 (Act No. 303, approved March 21, 1969), failed to enact certain essential amendments to Sections 33 and 36 of Act 140 approved February 23, 1949, with the result that where a deceased testator or testatrix leaves no surviving descendant, his or her surviving spouse conceivably has the power to nullify the will of the deceased spouse to an extent to which in some situations might be unconscionable. It was not the intention of the 1969 General Assembly in the enactment of said Act No. 303 to grant a windfall to any person and to create an inequitable result. Therefore, the passage of this Act is for the purpose of clarification and to prevent misconstruction of Act No. 303. Since all property owners and titles to property, real and personal, are affected by said Act No. 303, it is hereby declared that the passage of this Act is necessary for the immediate preservation of the public peace, health and safety; and an emergency is hereby declared to exist and this Act shall take effect and be in full force from and after its passage and approval.”

Acts 1981, No. 714, § 75: Mar. 25, 1981. Emergency clause provided: “It has been found and is declared by the General Assembly of Arkansas that existing law relating to such matters as homestead, dower, curtesy, statutory allowances payable from a decedent's estate, and the right of a surviving spouse to take against the will of a decedent, do not in all circumstances provide for equal treatment between the sexes, that the constitutionality of such existing law has been drawn into question by decisions of the United States Supreme Court and the Arkansas Supreme Court, and that there is an urgent need to insure that the law provides equality in the property rights and interests of married persons. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from the date of its approval.”

Research References

ALR.

Extent of rights of surviving spouse who elects to take against will in profits of or increase in value of estate accruing after testator's death. 7 A.L.R.4th 989.

Statutes which deny or qualify surviving spouse's right to elect against deceased spouse's will. 48 A.L.R.4th 972.

Am. Jur. 80 Am. Jur. 2d, Wills, § 1369 et seq.

Ark. L. Rev.

Acts 1949 General Assembly — Act 140 The Probate Code, 3 Ark. L. Rev. 375.

Wills — Revocation Implied from Divorce of Testator, 9 Ark. L. Rev. 182.

The New Arkansas Inheritance Laws: A Step into the Present with an Eye to the Future, 23 Ark. L. Rev. 313.

Ante-Nuptial Agreements in Arkansas — A Drafter's Problem, 24 Ark. L. Rev. 275.

C.J.S. 97 C.J.S., Wills, § 1841 et seq.

U. Ark. Little Rock L.J.

Brantley and Effland, Inheritance, The Share of the Surviving Spouse, and Wills: Arkansas Law and the Uniform Probate Code Compared, 3 U. Ark. Little Rock L.J. 361.

Legislative Survey, Decedents' Estates, 4 U. Ark. Little Rock L.J. 591.

Arkansas Law Survey, Looney, Decedents' Estates, 8 U. Ark. Little Rock L.J. 139.

28-39-401. Rights of surviving spouse — Limitations.

  1. When a married person dies testate as to all or any part of his or her estate, the surviving spouse shall have the right to take against the will if the surviving spouse has been married to the decedent continuously for a period in excess of one (1) year.
  2. In the event of such an election, the rights of the surviving spouse in the estate of the deceased spouse shall be limited to the following:
    1. The surviving spouse, if a woman, shall receive dower in the deceased husband's real estate and personal property as if he had died intestate. The dower shall be additional to her homestead rights and statutory allowances; and
    2. The surviving spouse, if a man, shall receive a curtesy interest in the real and personal property of the deceased spouse to the same extent as if she had died intestate. The curtesy interest shall be additional to his homestead rights and statutory allowances; and
    3. If, after the assignment of dower or curtesy, as the case may be, and the payment of all statutory allowances, taxes, and debts, and the satisfaction of all testamentary gifts and devises, there shall remain some residue of the deceased spouse's estate which is not disposed of by will, then, if the deceased spouse shall have been survived by no natural or adopted child, or the descendants of any natural or adopted child, and by no parent, brother, sister, grandparent, uncle, aunt, great-grandparent, great-uncle, great-aunt, or the lineal descendants of any of them, then the surviving spouse will take by inheritance the undisposed residue.

History. Acts 1949, No. 140, § 33; 1970 (1st Ex. Sess.), No. 14, § 1; 1981, No. 714, § 17; A.S.A. 1947, § 60-501.

Research References

Ark. L. Rev.

Note, Estate of Shelfer v. Commissioner of Internal Revenue: Is the Tax Court's Position on QTIPs “Stub”born or Justified?, 48 Ark. L. Rev. 987.

Comment, Arkansas Marriage: A Partnership Between a Husband and Wife, or a Safety Net for Support?, 61 Ark. L. Rev. 735.

Maria Korzendorfer, Case Note: In re Estate of Thompson: The Shortcomings of the Arkansas Elective Share Statute, 68 Ark. L. Rev. 1089 (2016).

U. Ark. Little Rock L.J.

Note, Constitutional Law — Equal Protection — Arkansas' Gender-Based Statutes on Dower, Election, Statutory Allowances, and Homestead Are Unconstitutional, Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981); Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372, 18 A.L.R.4th 903 (1981), 4 U. Ark. Little Rock L.J. 361.

Seventeenth Annual Survey of Arkansas Law — Property, 17 U. Ark. Little Rock L.J. 453.

U. Ark. Little Rock L. Rev.

Lucy L. Holifield, Note: Property Law—Upending the Familiar Tools of Estate Planning: Equity Renders Revocable Trusts Subject to the Arkansas Spousal Election. In re Estate of Thompson, 38 U. Ark. Little Rock L. Rev. 75 (2015).

Lynn Foster, Arkansas’s Trust Code and Trust Planning: A Ten-Year Perspective, 38 U. Ark. Little Rock L. Rev. 301 (2016).

Case Notes

Constitutionality.

This section, which allowed a widow, at her election, to take dower against the will of her husband under any condition, but allowed a husband to take curtesy against the will of his wife only if her will was executed before the marriage, was unconstitutional as a violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution, since no valid compensatory purpose or justifiable governmental function could be found to sustain its gender-based discrimination. Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981) (decision prior to 1981 amendment).

This section was an unconstitutional violation of the equal protection clause of the Fourteenth Amendment to the U. S. Constitution since it was gender-based and served no important governmental function. Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981), overruled in part, Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983) (decision prior to 1981 amendment).

A devisee and beneficiary of a decedent's will who was not an heir and who stood to lose financially if the decedent's wife claimed against the will pursuant to this section and received statutory allowances provided for in § 28-39-101 had standing to challenge the constitutionality of both statutes since the test is whether the party would lose financially unless the issue was raised. Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981) (decision prior to 1981 amendment).

This section, which classes differently those people who have been married less than one year from those who have been married more than one year, does not violate the equal protection clause of the 14th Amendment to the United States Constitution; this classification is not invidious because it bears a rational relationship to the permissible state objectives of preventing deathbed marriages and protecting the assets of a decedent in cases in which the assertion of a dower interest would often be contrary to the decedent's intent. In re Estate of Epperson, 284 Ark. 35, 679 S.W.2d 792 (1984), cert. denied, Epperson v. Estate of Epperson, 471 U.S. 1017, 105 S. Ct. 2022 (1985).

Purpose.

This section is designed to prevent injustices when a marriage endures until the death of the husband or the wife. Hamilton v. Hamilton, 317 Ark. 572, 879 S.W.2d 416 (1994).

Applicability of 1981 Amendment.

Act 714 of 1981, which created gender-neutral awards of dower and curtesy under this section and allowances under § 28-39-101, is substantive rather than procedural and therefore should not be applied retroactively. Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981); Hall v. Hall, 274 Ark. 266, 623 S.W.2d 833 (1981), cert. denied, 456 U.S. 916, 102 S. Ct. 1770 (1982).

Since this section as it existed prior to its amendment by Act 714 of 1981, under which a widow claimed her first election against the testator's will, was declared unconstitutional and since Act 714, which was not gender-based and allowed a widow to take the same as she could have taken under the old statute, could not be applied retroactively, a widow was not entitled to dower rights from the testator's estate where her claim arose prior to the enactment of Act 714. Stokes v. Stokes, 275 Ark. 110, 628 S.W.2d 6 (1982).

Act 714 of 1981, which cured the constitutional infirmity of this curtesy statute by substituting a neutral-based treatment in place of the gender-based treatment, created substantive rights, not merely procedural rights, and is not subject to a retroactive application in favor of a surviving husband who sought a curtesy interest in the estate of his deceased wife. Gent v. Goin, 275 Ark. 479, 631 S.W.2d 303 (1982).

Devise in Lieu of Dower.

Where a husband's will made an absolute gift of both real and personal property to his wife, a subsequent item stating that the provision was in lieu of dower did not limit the wife's share to what she would have received as dower, it having only the effect of requiring the widow to make her election. Gathright v. Gathright, 175 Ark. 1130, 1 S.W.2d 809 (1928) (decision under prior law).

Devise Not in Lieu of Dower.

Where a will devised a homestead and certain personal property to a wife, expressly stating that it was not in lieu of dower, but in addition thereto, and directed that the residue of the testator's property should be divided, one-half to the wife and one-half to the testator's collateral heirs, it was held that the specific devise was not in lieu of dower and that she took one-half of the residue freed from his debts. Chambless v. Gentry, 178 Ark. 558, 11 S.W.2d 460 (1928) (decision under prior law).

Dower.

Dower is to be carved from property possessed by decedent at death and not from property thereafter changed from realty to personalty. Atkinson v. Van Echaute, 236 Ark. 423, 366 S.W.2d 273 (1963).

Where a widow elects to take a dower interest against the will and consents to the conversion of the realty owned by testator at death into cash, as provided by the will, she may not, as the result of the conversion, thereby maintain a claim to one-third of the gross estate but, with respect to realty, is limited to a life interest in the proceeds from the sale of the realty. Atkinson v. Van Echaute, 236 Ark. 423, 366 S.W.2d 273 (1963).

Election.

Where a will leaves the surviving spouse nothing, he or she is put to an election. Estate of Dahlmann v. Estate of Dahlmann, 282 Ark. 296, 668 S.W.2d 520 (1984).

Where the decedent had previously executed a reciprocal will and a separate contract not to revoke the wills with his first wife, and where the two wills of the couple created testamentary trusts giving the six children of their marriage the estate of the surviving spouse, the rights of the children as trust beneficiaries under the contract and reciprocal wills were paramount, and they prevailed over a second wife electing to take against the will. Gregory v. Estate of Gregory, 315 Ark. 187, 866 S.W.2d 379 (1993).

The decedent's surviving spouse was not entitled to take against the decedent's will where their marriage lasted only 13 days before he died, notwithstanding that they had been previously married three separate times for a total of more than 15 years. Shaw v. Shaw, 337 Ark. 530, 989 S.W.2d 919 (1999).

Surviving spouse alleging a decedent defrauded the spouse of the spouse's right to an elective share of the decedent's estate did not have to show common-law fraud because “fraud on marital rights” was not akin to common-law fraud. Thompson v. Thompson, 2014 Ark. 237, 434 S.W.3d 877 (2014).

When a decedent's inter vivos trust defeated a surviving spouse's share of the decedent's estate, it was no error to let the spouse take from trust assets because (1) the assets were included in the decedent's estate only to calculate the spouse's elective share, and (2) the trust was otherwise left intact. Thompson v. Thompson, 2014 Ark. 237, 434 S.W.3d 877 (2014).

It was no error to find a decedent intended to defraud a surviving spouse of the spouse's share of the decedent's estate because (1) evidence supported multiple findings that the decedent's $100,000 bequest intended to deprive the spouse of the spouse's share of the decedent's $6 million estate, and (2) the decedent's inter vivos gifts to the spouse were not considered as the gifts were not testamentary when made. Thompson v. Thompson, 2014 Ark. 237, 434 S.W.3d 877 (2014).

Insurance.

Provisions of a will designating the particular beneficiaries for certain insurance policies which had been issued payable to testator's estate had same effect of changing the beneficiaries named in the policies as though testator had written to the insurance companies and followed their required procedure for changing beneficiaries; thus the policies did not pass to the executors as assets of the estate and were not subject to the dower interest of the testator's wife. Clements v. Neblett, 237 Ark. 340, 372 S.W.2d 816 (1963).

Liens.

A widow who elected to take against a will could not enforce provision leaving real property and insurance policies to nieces and nephew with instructions that all debts and taxes be paid; therefore, the widow was charged with one-half of the indebtedness in the real property. Clements v. Neblett, 237 Ark. 340, 372 S.W.2d 816 (1963).

Nature of Right.

Where a will executed prior to marriage did not provide for the widow, the widow's right to take against the will was personal to her and did not survive where she died before making election to so take against will. Lamb v. Ford, 239 Ark. 339, 389 S.W.2d 419 (1965).

Public Policy.

The public policy set forth in this section is disallowed only in limited circumstances such as in the case when the electing spouse was married to the decedent for less than a year. Gregory v. Estate of Gregory, 315 Ark. 187, 866 S.W.2d 379 (1993).

Right to Exclude Spouse from Will.

A spouse has the right to make a will which excludes a surviving spouse or provides for a bequest or devise in lieu of dower; that a surviving spouse may take against a will prevents any injustice that might result from the spouse's exercise of that right. Estate of Dahlmann v. Estate of Dahlmann, 282 Ark. 296, 668 S.W.2d 520 (1984).

Subsequent Marriage.

A will was not revoked by testator's marriage subsequent to its execution (but see now § 28-25-109) where no issue was born of the marriage, but the will did not exclude the widow from the interest she would have taken had her husband died intestate and devisees would take subject to the will as modified by the marriage. Fleming v. Blount, 202 Ark. 507, 151 S.W.2d 88 (1941) (decision under prior law).

Time for Exercising.

Where a spouse dies testate, the surviving spouse must exercise the option to take against the will in his or her lifetime; otherwise, the right is forfeited because it is personal and does not survive the surviving spouse. Estate of Dahlmann v. Estate of Dahlmann, 282 Ark. 296, 668 S.W.2d 520 (1984).

Vesting of Interest.

The surviving spouse's elective interest in the decedent's estate vests immediately upon the spouse's death, but it can vest only in property which the deceased spouse owned at the time of death. Gregory v. Estate of Gregory, 315 Ark. 187, 866 S.W.2d 379 (1993).

Will Predating Marriage.

Under § 28-25-109, any bequest to a former spouse is void, but the remainder of the will remains in effect; unless the will is completely revoked because all of its substantive provisions favor a decedent's former spouse, the decedent will have died testate, and this section will apply. Section 28-25-109 does not require a holding that this section is not intended to be applied when the will predates a marriage. In re Estate of Epperson, 284 Ark. 35, 679 S.W.2d 792 (1984), cert. denied, Epperson v. Estate of Epperson, 471 U.S. 1017, 105 S. Ct. 2022 (1985).

This section does not make a distinction concerning wills that predate a marriage and those made after a marriage. Davis v. Aringe, 292 Ark. 549, 731 S.W.2d 210 (1987).

Cited: Anderson v. Parker, 230 Ark. 335, 323 S.W.2d 414 (1959); Faver v. Faver, 266 Ark. 262, 583 S.W.2d 44 (1979); Owen v. Owen, 267 Ark. 532, 592 S.W.2d 120 (1980); Bennett v. Estate of Bennett, 275 Ark. 262, 628 S.W.2d 565 (1982); McGuire v. McGuire, 275 Ark. 432, 631 S.W.2d 12 (1982); In re Estate of Epperson, 284 Ark. 35, 679 S.W.2d 792 (1984).

28-39-402. Notice to spouse of right to elect.

Within one (1) month after the will of a married person has been admitted to probate, the clerk shall mail a notice to the decedent's surviving spouse at his or her mailing address, if known, in which shall be stated the time within which a written election must be filed by or on behalf of the surviving spouse in order to take against the will.

History. Acts 1949, No. 140, § 34; A.S.A. 1947, § 60-502.

Case Notes

Failure to Notify.

The notice by a probate clerk to a surviving spouse to elect to take against a will is not jurisdictional, and therefore, a failure to notify will not give her heirs her personal right to take against the will. Jeffcoat v. Harper, 224 Ark. 778, 276 S.W.2d 429 (1955).

28-39-403. Spouse's time limitation for filing election.

  1. The election by a surviving spouse to take against the will may be made at any time within one (1) month after the expiration of the time limited for the filing of claims.
  2. However, if, at the expiration of the period for making the election, litigation is pending to test the validity or to determine the effect or construction of the will or to determine the existence of issue surviving the deceased or to determine any other matter of law or fact which would affect the amount of the share to be received by the surviving spouse, the right of the surviving spouse to make an election shall not be barred until the expiration of one (1) month after the date of the final order of the circuit court adjudicating the issue in litigation.

History. Acts 1949, No. 140, § 35; A.S.A. 1947, § 60-503.

Research References

Ark. L. Rev.

Haught, 1988 Update to the Arkansas Probate System: An Overview of Recent Developments in Arkansas Probate Practice, 42 Ark. L. Rev. 631.

Case Notes

Failure to Notify.

The notice by a probate clerk to a surviving spouse to elect to take against a will is not jurisdictional, and therefore a failure to notify will not give her heirs her personal right to take against the will. Jeffcoat v. Harper, 224 Ark. 778, 276 S.W.2d 429 (1955).

Nature of Right.

A spouse's right to elect against a will is personal and for her benefit; therefore, her heirs cannot exercise it after her death even though the spouse was insane from before testator's death until her death and although no guardian was appointed as the will suggested who could have exercised her rights. Jeffcoat v. Harper, 224 Ark. 778, 276 S.W.2d 429 (1955).

28-39-404. Form of election — Filing.

    1. The election to take against the will shall be:
      1. In writing, signed and acknowledged by the surviving spouse or by the guardian of his or her estate; and
      2. Filed in the office of the probate clerk of the circuit court.
    2. It shall be in substantially the following form:
  1. The clerk shall record the election in the will records. The personal representative shall, and any interested person may, file for record with the circuit clerk and recorder of each other county in this state in which the decedent, at the time of his or her death, owned an estate of inheritance in real property a duplicate original or certified copy of the election.

“I, A. B., surviving wife (or husband) of C. D., deceased, hereby renounce and disclaim any and all benefits under the will of C. D., and elect to take from the estate of C. D. only the property and benefits which (because of this election) will accrue to me under Section 33 of Act No. 140, approved February 23, 1949, as amended. DATED: , 20 . SIGNED: ” (ACKNOWLEDGMENT)

Click to view form.

History. Acts 1949, No. 140, § 36; 1970 (1st Ex. Sess.), No. 14, § 2; A.S.A. 1947, § 60-504; Acts 2003, No. 1185, § 276.

Case Notes

Cited: Farmers Coop. Ass'n v. Webb, 249 Ark. 277, 459 S.W.2d 815 (1970).

28-39-405. Right of election personal to surviving spouse.

  1. The right of election of the surviving spouse is personal. It is not transferable and does not survive the surviving spouse.
  2. The guardian of the estate of an incompetent surviving spouse, when authorized by the court having jurisdiction over the estate of the ward, may elect to take against the will in the ward's behalf.

History. Acts 1949, No. 140, § 37; A.S.A. 1947, § 60-505.

Case Notes

Disability of Spouse.

A spouse's right to elect against a will is personal and for her benefit; and therefore her heirs cannot exercise it after her death even though the spouse was insane from before testator's death until her death and although no guardian was appointed as the will suggested who could have exercised her rights. Jeffcoat v. Harper, 224 Ark. 778, 276 S.W.2d 429 (1955).

Nature of Right.

The provision that the right of election of the surviving spouse is personal, is not transferable, and does not survive the surviving spouse does not make the interest secured by the exercise of such an election a terminable or contingent estate. Bradham v. United States, 287 F. Supp. 10 (W.D. Ark. 1968).

Time of Election.

Where a spouse dies testate, the surviving spouse must exercise the option to take against the will in his or her lifetime; otherwise, the right is forfeited because it is personal and does not survive the surviving spouse. Estate of Dahlmann v. Estate of Dahlmann, 282 Ark. 296, 668 S.W.2d 520 (1984).

An election to take against a will was not made in a timely manner where (1) the appellees filed the election, on behalf of the surviving spouse, to take against the will prior to the death of the surviving spouse, but (2) the appellees never sought or received the probate court's authorization prior to the time that they purported to make the election, and (3) the appellees did not seek such authorization until after the death of the surviving spouse. Burch v. Griffe, 342 Ark. 559, 29 S.W.3d 722 (2000).

Will Executed Prior to Marriage.

Where a will executed prior to marriage did not provide for a widow, the widow's right to take against the will was personal to her and did not survive where she died before making an election to take against will. Lamb v. Ford, 239 Ark. 339, 389 S.W.2d 419 (1965).

Will Leaving Nothing.

Where a husband's will left nothing to his wife and she died without electing to take against the will, her right to claim dower did not survive her and could not be exercised by her estate. Estate of Dahlmann v. Estate of Dahlmann, 282 Ark. 296, 668 S.W.2d 520 (1984).

28-39-406. Revocation of spouse's election.

An election made by or on behalf of a surviving spouse to take against the will shall be binding and shall not be subject to revocation, except within the time provided by § 28-39-403 for filing an election and prior to any distribution made on the basis of the election, or thereafter for such causes as would justify a decree for the rescission of a deed.

History. Acts 1949, No. 140, § 38; A.S.A. 1947, § 60-506.

Case Notes

Election to Take Under Will.

An election to take under a will does not bar a widow from changing her mind and deciding to renounce the will if the renunciation is made within the period allowed for her decision and if no distribution has been made in reliance on her prior decision. Townson v. Townson, 221 Ark. 610, 254 S.W.2d 952 (1953).

28-39-407. Rights of children or issue — Limitations.

  1. Subsequently Born or Adopted Children. Whenever a child shall have been born to or adopted by a testator after the testator has made his or her will, and the testator shall die leaving the after-born or adopted child not mentioned or provided for in his or her will either specifically or as a member of a class, the testator shall be deemed to have died intestate with respect to the child. The child shall be entitled to recover from the devisees in proportion to the amounts of their respective shares, that portion of the estate which he or she would have inherited had there been no will.
  2. Pretermitted Children. If, at the time of the execution of a will, there is a living child of the testator, or living child or issue of a deceased child of the testator, whom the testator shall omit to mention or provide for, either specifically or as a member of a class, the testator shall be deemed to have died intestate with respect to the child or issue. The child or issue shall be entitled to recover from the devisees in proportion to the amounts of their respective shares, that portion of the estate which he or she or they would have inherited had there been no will.

History. Acts 1949, No. 140, § 39; A.S.A. 1947, § 60-507.

Research References

Ark. L. Notes.

Atkinson, A Comparison of Ark. Code Ann. § 28-39-407 With Uniform Probate Code § 2-302, 1995 Ark. L. Notes 1.

Ark. L. Rev.

Decedent's Estates — Rights of a Judgment Lien Creditor Against a Pretermitted Heir, 25 Ark. L. Rev. 353.

U. Ark. Little Rock L.J.

Survey — Property, 12 U. Ark. Little Rock L.J. 225.

U. Ark. Little Rock L. Rev.

Lynn Foster, Arkansas’s Trust Code and Trust Planning: A Ten-Year Perspective, 38 U. Ark. Little Rock L. Rev. 301 (2016).

Case Notes

Constitutionality.

This section held constitutional. Holland v. Willis, 293 Ark. 518, 739 S.W.2d 529 (1987).

Construction.

Subsection (b) of this section applied only to wills and not to trusts created during the life of the settler, because the pretermitted-heir statute spoke only in terms of wills, and not of trusts; the pretermitted-heir statute, which spoke only in terms of the execution of a will, did not apply in instances in which there was no will. Kidwell v. Rhew, 371 Ark. 490, 268 S.W.3d 309 (2007).

Purpose.

The object of former similar statute was to prevent injustice to a child or descendant from occurring by reason of the forgetfulness of a testator who might, at the time of making his will, overlook the fact that he has a child or descendant. Culp v. Culp, 206 Ark. 875, 178 S.W.2d 52 (1944) (decision under prior law).

The purpose of a former similar statute was not to require a testator to make some devise to each of his children, but to insure that there should be no unintentional disinheritance of a child by the testator. Taylor v. Cammack, 209 Ark. 983, 193 S.W.2d 323 (1946) (decision under prior law).

The purpose of the pretermitted child statute is not to compel a testator to make a provision for his children, but to guard against testamentary thoughtlessness. Young v. Young, 288 Ark. 199, 703 S.W.2d 457 (1986).

Holographic Will.

Holographic will held to be clear in its provision and to take precedence over any other will. Mangum v. Estate of Fuller, 303 Ark. 411, 797 S.W.2d 452 (1990).

Intent of Testator.

Extrinsic evidence is inadmissible to show that a testator was aware of a pretermitted child and intended to disinherit her. Hare v. First Sec. Bank, 261 Ark. 79, 546 S.W.2d 427 (1977).

Under this section, extrinsic evidence of the testator's intent is not admissible. Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977); Mangum v. Estate of Fuller, 303 Ark. 411, 797 S.W.2d 452 (1990).

This section operates in favor of a pretermitted child without regard to the real intention of the testator in regard to the omission. Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977).

The fact that one paragraph of a will provided that the decedent's estate would, upon nonsurvival of all the named heirs, pass under the laws of descent and distribution of Missouri did not establish that the decedent intended to omit her sons by her first marriage from the will, even though they were not mentioned in the will. Robinson v. Mays, 271 Ark. 818, 610 S.W.2d 885 (1981).

Where a decedent's holographic will, written during his residency in Canada, did not mention his children, under subsection (b) of this section that the omission operated in favor of the pretermitted children; hence, in the letter order issued by the trial court the children were properly awarded the decedent's real property in Arkansas. Craig v. Carrigo, 353 Ark. 761, 121 S.W.3d 154 (2003).

Presumptions.

In a suit to recover the share of a child pretermitted by will, evidence that the plaintiff was born two months after her mother's marriage and that she resembled a man who had kept company with her mother was not sufficient to overcome the presumption that she was legitimate. Jacobs v. Jacobs, 146 Ark. 45, 225 S.W. 22 (1920) (decision under prior law).

The presumption against intestacy is subordinate to the statutory presumption against the disherison of a child or the issue of a deceased child because the presumption against intestacy actually is much more than a presumption. Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977).

An omission in a will is presumed to be unintentional where the testator fails to mention his children or provide for them as a member of a class, if no contrary intent appears in the will itself. Robinson v. Mays, 271 Ark. 818, 610 S.W.2d 885 (1981).

Pretermitted Children.

The great grandchild of a testator could not recover upon the ground that she was not mentioned in the will of her ancestress if she was not living at the time the will was made or if her mother was then living and was named by class as a grandchild. King v. Byrne, 92 Ark. 88, 122 S.W. 96 (1909) (decision under prior law).

Grandchildren held to be pretermitted. Gray v. Parks, 94 Ark. 39, 125 S.W. 1023 (1910) (decision under prior law); King v. King, 273 Ark. 55, 616 S.W.2d 483 (1981).

Adopted children entitled to inherit as pretermitted children. James v. Helmich, 186 Ark. 1053, 57 S.W.2d 829 (1933) (decision under prior law); Graham v. Hill, 226 Ark. 258, 289 S.W.2d 186 (1956).

Where a daughter not mentioned in will was left something by a codicil and the codicil was invalid, she inherited as if there was no will. Noblit v. Noblit, 223 Ark. 220, 265 S.W.2d 520 (1954).

A pretermitted child is entitled to his remedy during the administration of an estate, and the provision for recovering from the devisee is only brought into being after the estate has been closed or after sufficient funds have been paid out of the estate to prevent the pretermitted child from acquiring his full statutory share. Parker v. Bowlan, 242 Ark. 192, 412 S.W.2d 597 (1967).

Where pretermitted children instituted a suit for a partition of the real estate in the estate within four months following wrongful distribution, their suit was timely and not barred by laches even though decedent had died some seven years before. Negovanov v. Wensko, 248 Ark. 1109, 455 S.W.2d 929 (1970).

Children held to be pretermitted. Farmers Coop. Ass'n v. Webb, 249 Ark. 277, 459 S.W.2d 815 (1970); Robinson v. Mays, 271 Ark. 818, 610 S.W.2d 885 (1981).

Where the testator failed to name two of her children who were deceased at the time of the execution of her will and her will also included a provision “If any of my children should die before I do,” the phrase “my children” was referring to only the children living at the time the codicil was executed. Thus, the grandchildren of the deceased children were pretermitted heirs and entitled to share in the estate. Estate of Cisco v. Cisco, 288 Ark. 552, 707 S.W.2d 769 (1986).

As a general rule, the testator's use of a word which describes a class of persons is considered to be sufficient identification of the claimant to preclude the application of the pretermitted heir statute. Estate of Cisco v. Cisco, 288 Ark. 552, 707 S.W.2d 769 (1986).

Grandchildren were pretermitted where neither they nor their father, who died before the will was executed, were mentioned or provided for in the will. Holland v. Willis, 293 Ark. 518, 739 S.W.2d 529 (1987).

This section directs that children shall take as though decedent had died intestate only when testator fails to mention or provide for them, specifically or as a class, and does not permit children to take against will simply because testator failed to make provision for them in will; if testator mentioned children, specifically or as a class, this section does not apply and children are not pretermitted. Dykes v. Dykes, 294 Ark. 158, 741 S.W.2d 256 (1987).

If the word “heir” or “heirs” is used by the testator in a colloquial sense to refer to children, or descendants, as opposed to a technical, legal sense, then the requirements of subsection (b) are met. Leatherwood v. Meisch, 297 Ark. 91, 759 S.W.2d 559 (1988).

Insertion of a rule-against-perpetuities clause and other general references to undesignated persons in a testator's will did not show that testator had his grandson, as issue of the testator's predeceased child, so clearly in mind as to have met the requirements of the pretermitted child statute, subsection (b) of this section. Alexander v. Estate of Alexander, 351 Ark. 359, 93 S.W.3d 688 (2002).

Illegitimate child was awarded a share of his father's estate as a pretermitted heir where the wife waived an issue regarding competent jurisdiction by failing to object to a failure to join the estate in a paternity action; moreover, collateral estoppel applied because the wife appeared at the paternity proceeding, it was fully litigated, the necessary party issue was not raised, and no appeal was filed. Taylor v. Hamilton, 90 Ark. App. 235, 205 S.W.3d 149 (2005).

Decedent's illegitimate, pretermitted child was not entitled to inherit from decedent as he was required to meet requirements of subsection (b) of this section, § 28-1-102(a)(1), and the six requirements of § 28-9-209(d), but he failed to show that he had been recognized by the decedent or by a court and he failed to file his action within 180 days of decedent's death. Shelton v. Keathley, 367 Ark. 568, 242 S.W.3d 223 (2006).

Remedies.

An omitted child or grandchild was not remitted solely to the remedy in the probate court against the devisees or legatees but could sue to recover land descended to him from purchasers holding under the devisees or legatees or under a power contained in the will. Rowe v. Allison, 87 Ark. 206, 112 S.W. 395 (1908) (decision under prior law).

Subsequently Born or Adopted Children.

A child adopted three years after the adopting parents had made a will stood in the position of a natural child born subsequent to the execution of the will and inherited accordingly. Grimes v. Jones, 193 Ark. 858, 103 S.W.2d 359 (1937) (decision under prior law).

Son's claim pursuant to the After-Born Child Statute, subsection (a) of this section, extinguished a nephew's rights as a named beneficiary of a joint will because the son's rights prevailed where there was a conflict between the rights of the couple to execute a joint will to dispose of their estates and the rights of an after-born child. Dotson v. Dotson, 2009 Ark. App. 819, 372 S.W.3d 398 (2009), rehearing denied, — Ark. App. —, — S.W.3d —, 2010 Ark. App. LEXIS 74 (Jan. 20, 2010), review denied, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 331 (June 3, 2010).

Sufficiency of Designation.

A will in which the testator provides for all of his children as a class without expressly naming them is a sufficient mention of his children. Brown v. Nelms, 86 Ark. 368, 112 S.W. 373 (1908); Duensing v. Duensing, 112 Ark. 362, 165 S.W. 956 (1914) (decision under prior law).

A bequest to a son of the testator and to son's children sufficiently designated the children. LeFlore v. Handlin, 153 Ark. 421, 240 S.W. 712 (1922) (decision under prior law).

Former statute was complied with where the testator either mentioned each of his children by name or provided for them as a class without naming them separately. Yeates v. Yeates, 179 Ark. 543, 16 S.W.2d 996, 65 A.L.R. 466 (1929) (decision under prior law).

Where testator actually wrote the name of his daughter in the body of his will along with a statement of the amount of insurance policy payable to her, he did not omit to mention the name of his daughter in his will and he did not die intestate as to her. Culp v. Culp, 206 Ark. 875, 178 S.W.2d 52 (1944) (decision under prior law).

Where there was uncertainty or ambiguity in designated beneficiary of a will, extrinsic evidence was admissible for purpose of identifying intended beneficiary who was found not entitled to share in estate as a pretermitted heir under subsection (b). Tullis v. Minchew, 239 Ark. 222, 388 S.W.2d 393 (1965).

Whether the word “descendants” as a description of the beneficiaries of the trust sufficiently describes a class within the meaning of this section is to be determined by a consideration of the will as a whole. Petty v. Chaney, 281 Ark. 72, 661 S.W.2d 373 (1983).

Daughter who was not mentioned or provided for by name in her father's will was sufficiently mentioned or provided for in a paragraph of the will creating a trust for the testator's “descendants” and was not entitled to share in father's estate as a child whom testator failed to provide for. Petty v. Chaney, 281 Ark. 72, 661 S.W.2d 373 (1983).

Considering will as a whole, reference therein to “all of my heirs or other relatives” was sufficient to mention the testator's children as a class and to exclude them from inheritance. Young v. Young, 288 Ark. 199, 703 S.W.2d 457 (1986).

This section does not require testator to provide for his heirs, only to mention them. Child does not have to be specifically named, but can be included as a member of the class. Holland v. Willis, 293 Ark. 518, 739 S.W.2d 529 (1987).

Testator in Loco Parentis.

This section is not broad enough to cover a child to whom the testator only stood in loco parentis, because birth or adoption, each, creates a permanent relationship whereas the relationship in loco parentis is temporary. Bryant v. Thrower, 239 Ark. 783, 394 S.W.2d 488 (1965).

Validity of Will.

If the names of all, any, or either of testator's children or their legal representatives were omitted in his will, the will was not void, but he would be deemed as having died intestate as to those omitted. Branton v. Branton, 23 Ark. 569, 1861 Ark. LEXIS 161 (1861); Boyd v. Epperson, 149 Ark. 527, 232 S.W. 939 (1921) (decision under prior law).

Omission of the name of a child from a will does not thereby make it void; but those omitted may recover of the devisees and legatees their distributive shares. Trotter v. Trotter, 31 Ark. 145 (1876); Bloom v. Strauss, 73 Ark. 56, 84 S.W. 511 (1904) (decision under prior law).

A will of a citizen of another state seeking to transmit lands situated in this state was without effect as to the lands where he omitted to name his only surviving child therein. Crossett Lumber Co. v. Files, 104 Ark. 600, 149 S.W. 908 (1912) (decision under prior law).

This section does not preclude persons other than the child from bringing a petition to contest a will. Parker v. Bowlan, 242 Ark. 192, 412 S.W.2d 597 (1967).

Cited: Odom v. Travelers Ins. Co., 174 F. Supp. 426 (W.D. Ark. 1959); Negovanov v. Wensko, 248 Ark. 1109, 455 S.W.2d 929 (1970); Frakes v. Hunt, 266 Ark. 171, 583 S.W.2d 497 (1979); Willis v. Estate of Adams, 304 Ark. 35, 799 S.W.2d 800 (1990).

Chapter 40 Probate And Grant Of Administration

Subchapter 1 — Proceedings Generally

Cross References. Probate court has original jurisdiction over decedents' estates, § 28-1-104.

Effective Dates. Acts 1951, No. 255, § 15: Mar. 19, 1951. Emergency clause provided: “The General Assembly has ascertained that there is a likelihood of misconstruction of certain provisions of the Probate Code, and that an urgent need exists for clarification thereof and certain additions thereto in order that the law relating to proceedings in probate may be construed and administered in a uniform manner throughout the State, in accordance with the legislative intent; for the accomplishment of which purposes this Act is adopted. An emergency is therefore declared to exist, and this Act, being necessary for the immediate preservation of the public peace, welfare and safety, shall take effect and be in force from and after its passage and approval.”

Acts 1987 (1st Ex. Sess.), No. 16, § 4: June 12, 1987. Emergency clause provided: “It has been found and is declared by the General Assembly of Arkansas that existing law relating to notice to creditors only by the publication of legal notice may be unconstitutional by reason of recent decisions of the United States Supreme Court. Therefore, an emergency is hereby declared to exist and this Act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1989 (3rd Ex. Sess.), No. 59, § 5: Nov. 16, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that certain language appearing in Act 939 of the Seventy-Seventh General Assembly, was in included in the act in error, thus resulting in ambiguity and uncertainty as to the meaning and effect of its provisions, and this act deletes the erroneous language of Act 929. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Research References

ALR.

Right to probate subsequently discovered will as affected by completed prior proceedings in intestate administration. 2 A.L.R.4th 1315.

Inheritability or descendability of right to contest will. 11 A.L.R.4th 907.

Validity and enforceability of provision of will or trust instrument for forfeiture or reduction of share of contesting beneficiary. 23 A.L.R.4th 369.

Creditor's right to prevent debtor's renunciation of benefit under will or debtor's election to take under will. 39 A.L.R.4th 633.

Am. Jur. 79 Am. Jur. 2d, Wills, § 723 et seq.

Ark. L. Rev.

Acts 1949 General Assembly—Act 140 The Probate Code, 3 Ark. L. Rev. 375.

C.J.S. 95 C.J.S., Wills, § 445 et seq.

U. Ark. Little Rock L.J.

Arkansas Law Survey, Looney, Decedents' Estates, 8 U. Ark. Little Rock L.J. 139.

28-40-101. Character of proceeding.

  1. The administration of the estate of a decedent from the filing of the petition for probate and administration or for administration until the order of final distribution and the discharge of the last personal representative shall be considered as one (1) proceeding for purposes of jurisdiction.
  2. The entire proceeding is a proceeding in rem.
  3. No notice shall be jurisdictional except as provided in §§ 28-40-110 and 28-53-103.

History. Acts 1949, No. 140, § 40; A.S.A. 1947, § 62-2101.

Case Notes

Correction of Errors.

If the probate court grants letters of administration instead of letters testamentary, the error should be corrected on appeal. The letters will not be void until reversed. Jackson v. Reeve, 44 Ark. 496 (1884) (decision under prior law).

Failure to Notify Spouse.

The notice by a probate clerk to a surviving spouse to elect to take against a will is not jurisdictional, and therefore the failure to notify will not give her heirs her personal right to take against the will. Jeffcoat v. Harper, 224 Ark. 778, 276 S.W.2d 429 (1955).

Necessity for Administration.

The adjudication by the probate court of the necessity for administration is conclusive in a collateral issue. Stewart v. Smiley, 46 Ark. 373 (1885); Sharp v. Himes, 129 Ark. 327, 196 S.W. 131 (1917) (decisions under prior law).

The appointment by the probate court of an administrator is conclusive of the question of necessity for administration, but it is not conclusive of the question whether or not the lands of the estate are needed to pay debts. Turley v. Gorman, 133 Ark. 473, 202 S.W. 822 (1918) (decision under prior law).

Cited: Brickey v. Lacy, 247 Ark. 906, 448 S.W.2d 331 (1969); Brown v. Kennedy Well Works, Inc., 302 Ark. 213, 788 S.W.2d 948 (1990); Schieffler v. Pulaski Bank & Trust Co. (In re Molitor), 183 B.R. 547 (Bankr. E.D. Ark. 1995); Wilson v. Wilson, 327 Ark. 386, 939 S.W.2d 287 (1997); Ferguson v. Ferguson, 2009 Ark. App. 549, 334 S.W.3d 425 (2009).

28-40-102. Venue.

  1. The venue for the probate of a will and for administration shall be:
    1. In the county in this state where the decedent resided at the time of his or her death;
    2. If the decedent did not reside in this state, then in the county wherein is situated the greater part, in value, of the property of the decedent located in this state;
    3. If the decedent had no residence or property in this state, but died in this state, then in the county in which he or she died; and
    4. If the decedent had no residence or property in this state and died outside of this state, then in any county in which a cause of action may be maintained by his or her personal representative.
  2. The proceedings shall be deemed commenced by the filing of a petition, the issuance of letters, and the qualification of a personal representative. The proceeding first legally commenced is extended to all of the property in this state.
    1. If proceedings are commenced in more than one (1) county, they shall be stayed except in the county where first commenced until final determination of venue by the circuit court of the county where first commenced.
    2. If the proper venue is finally determined to be in another county, the court, after making and retaining a true copy of the entire file, shall transmit the original to the proper county.
    1. If it appears to the court at any time before the order of final distribution that the proceeding was commenced in the wrong county or that it would be for the best interest of the estate, then the court, in its discretion, may order the proceeding with all papers, files, and a certified copy of all orders therein transferred to another circuit court, which need not be a court of proper venue under other provisions of this section. The other court shall thereupon proceed to complete the administration proceeding as if originally commenced therein.
    2. The bond, if any, of the personal representative filed in the court from which the proceeding is transferred shall remain in effect unless and until replaced by a new bond ordered and approved by the court to which the proceeding is transferred.

History. Acts 1949, No. 140, § 41; A.S.A. 1947, § 62-2102.

Research References

Ark. L. Rev.

Recent Development: Arkansas Act 438 of 2007, 60 Ark. L. Rev. 1023.

Case Notes

In General.

Nothing in this section authorizes a personal representative to sue or be sued until such time as he has received letters of administration. Jenkins v. Means, 242 Ark. 111, 411 S.W.2d 885 (1967).

Action to Try Title.

Action against executor to try title to property in dispute in the probate court and to require settlement and contribution of the estate was a local and not a transitory action and properly brought in the county where the estate was being probated rather than in county where executor resided. Gocio v. Seamster, 203 Ark. 944, 160 S.W.2d 197 (1942) (decision under prior law).

Jurisdiction.

Letters should be granted in county in which testator or intestate dies; the probate court of another county has no jurisdiction. Shelton v. Shelton, 180 Ark. 959, 23 S.W.2d 629 (1930) (decision under prior law).

Mandatory Provision.

Provision requiring administration of estate to be in county where deceased is residing at time of death is mandatory. Smith v. Rudolph, 221 Ark. 900, 256 S.W.2d 736 (1953).

Nonresidents.

The will of a nonresident of this state may have original probate in this state if the testator owned property in this state which might be the subject of administration in this state, or where there was a debt or demand due the testator which required administration to collect. However, unless a nonresident has land in this state or debt or demand owing him, the will of the nonresident is not subject to probate in this state. McPherson v. McKay, 205 Ark. 1135, 172 S.W.2d 911 (1943) (decision under prior law).

It was error for the trial court to determine that it had venue to probate decedent's will because decedent was not a resident of that county at the time of his death and the statute clearly required probate proceedings to go forward in the county where decedent resided before his death; even if decedent was arguably domiciled in the county, venue was still not proper. Lawrence v. Sullivan, 90 Ark. App. 206, 205 S.W.3d 168 (2005).

Partition Suits.

Where the estate of a deceased person has been closed, an action for partition of the land among the heirs should be brought in the county where the land or some part of it is situated and not in the county where the deceased's personal representatives qualified. Cowling v. Nelson, 76 Ark. 146, 88 S.W. 913 (1905) (decision under prior law).

Probate Outside State.

Purported will of testator, who was a resident of this state, probated in Texas under statutory provision similar to this statute was not subject to attack in the courts of this state. State ex rel. Attorney General v. Wright, 194 Ark. 652, 109 S.W.2d 123 (1937) (decision under prior law).

Sale of Land.

Jurisdiction for the sale of deceased's land is only in the probate court of the county in which the personal representative was qualified, not in another county in which the land may be located. Gordon v. Howell, 35 Ark. 381 (1880) (decision under prior law).

Void Administrator Appointment.

Where deceased did not live or die in the county where administrator was appointed, the appointment was void and a judgment obtained by the administrator against a corporation wrongfully causing the death of the deceased was properly set aside. Groschner v. Winton, 146 Ark. 520, 226 S.W. 162 (1920) (decision under prior law).

Cited: Odom v. Travelers Ins. Co., 174 F. Supp. 426 (W.D. Ark. 1959); Filyaw v. Bouton, 87 Ark. App. 320, 191 S.W.3d 540 (2004).

28-40-103. Time limit for probate and administration.

  1. No will shall be admitted to probate and no administration shall be granted unless application is made to the court for admission to probate within five (5) years from the death of the decedent, subject only to the exceptions stated in this section.
  2. This section shall not affect the availability of appropriate equitable relief against a person who has fraudulently concealed or participated in the concealment of a will.
    1. Insofar only as it relates to real property in Arkansas, or any interest in real property, the will of a nonresident which has been admitted to probate in another appropriate jurisdiction may be admitted to probate in this state without regard to the time limit imposed by this section.
    2. However, rights and interests in the real property which, after the death of the testator if it is assumed that he or she died intestate, have been acquired by purchase, as evidenced by one (1) or more appropriate instruments which have been properly recorded in the office of the recorder of the county in which the real property is situated and which would be valid and effective had the decedent died intestate, shall not be adversely affected by the probate of the will in this state after the expiration of the time limit imposed by subsection (a) of this section.

History. Acts 1949, No. 140, § 64; 1963, No. 166, § 1; A.S.A. 1947, § 62-2125.

Case Notes

In General.

This section not only limits to five years the time in which a will may be admitted to probate, but also limits to five years the time in which letters of administration may be granted. Horn v. Horn, 226 Ark. 27, 287 S.W.2d 586 (1956).

Applicability.

Proponent of the will of a person who died before the effective date of this section did not have a vested right to probate the will more than five years after the effective date of this section. Horn v. Horn, 226 Ark. 27, 287 S.W.2d 586 (1956).

The will of person who died more than five years before the effective date of this section could not be probated more than five years after the effective date of this section. Horn v. Horn, 226 Ark. 27, 287 S.W.2d 586 (1956).

This section and § 28-9-209 are not applicable in a paternity case; paternity action must be commenced in chancery court because it is not a determination of heirship. In re Estate of F.C., 321 Ark. 191, 900 S.W.2d 200 (1995).

Application to Court.

An application to the court within the meaning of this section was made when proponents of a will filed a verified petition for probate within three days after death of the testator, and a personal appearance before the probate court was not necessary. Minchew v. Tullis, 236 Ark. 818, 368 S.W.2d 282 (1963).

Estoppel.

Where the widow of a deceased invoked the aid of a court to permit her to serve as administrator, although her first request for appointment was after expiration of period for probating will, she could not later complain that the court was without the power to make such an appointment. Davis v. Adams, 231 Ark. 197, 328 S.W.2d 851 (1959).

Interests in Property.

2012 Arkansas probate of the decedent's will was proper because that will had previously been admitted to probate in Florida; even then, however, if the real property involved were purchased after the death of the testator by a third party from a person who, but for the will, would have been the intestate heir of the decedent, interests in the property would not be affected by the probate of the will after the expiration of the five-year period if the instrument of transfer had been recorded in the county where the real property is located. Christian v. McVesting, LLC, 2014 Ark. App. 509, 443 S.W.3d 578 (2014).

But for the will, the decedent's son would have been the intestate heir of the decedent, and the son quitclaimed his interest in the property to a company by an instrument recorded on June 24, 2009, and the will had not been admitted to probate in Arkansas until October 23, 2012; the trial court erred in denying the devisees' motion to intervene, given that, as named devisees of the property in question in the decedent's will, the devisees clearly had a recognized interest in the mineral interests in the property that the company's petition sought to settle. Christian v. McVesting, LLC, 2014 Ark. App. 509, 443 S.W.3d 578 (2014).

Later Will as Counterclaim.

Where deceased had two wills, one being probated, and the later will was offered for probate more than five years after testator's death, the later will was barred by this section despite the contention it was offered as a counterclaim and therefore not subject to this section. Coleman v. Coleman, 257 Ark. 404, 520 S.W.2d 239 (1975).

Nonresident's Will.

This section, which limits the period within which a will may be admitted to probate to five years from the testator's death, applies to a nonresident's will which has been admitted to probate in a foreign jurisdiction. Sims v. Schavey, 234 Ark. 166, 351 S.W.2d 145, 87 A.L.R.2d 718 (1961).

Oversight of Clerk.

Where a will, together with the necessary proof of its execution, was filed with the probate clerk in 1947, but the clerk failed to enter an order admitting the will to probate, the party had fully complied with the requirements of former provisions for the probate of the will, notwithstanding the oversight of the clerk, and it was not barred by the subsequently enacted statute of limitation contained in this section. Muldrew v. Dodson, 237 Ark. 852, 376 S.W.2d 672 (1964) (decision under prior law).

The time limit of this section did not apply to prevent the probate of a will which, together with necessary proof of its execution, had been filed with the probate clerk in 1947 under repealed § 60-209, but where the clerk had failed to enter an order admitting it to probate. Muldrew v. Dodson, 237 Ark. 852, 376 S.W.2d 672 (1964) (decision under prior law).

Probate Barred.

Former limitations period in effect prior to the 1963 amendment of this section barred probate of decedent's will because she died in 1962, and the five-year period from her death had passed. Delafield v. Lewis, 299 Ark. 50, 770 S.W.2d 659 (1989).

Probate division of the circuit court was statutorily time-barred from administering an estate under this section because the probate court had no authority to administer an estate past the five-year limit set forth in the statute. Furthermore, the passage of almost 100 years from the death of the title owners of the real property in the estate was not an exception to the statute. Edwards v. Hart, 2020 Ark. App. 182, 598 S.W.3d 543 (2020).

Provisions Not Retroactive.

Proceeding in 1950 to probate will of person who died in 1935 was not barred by five year limitation period contained in the 1949 Code, since the Probate Code is not retroactive. Hudson v. Hudson, 219 Ark. 211, 242 S.W.2d 154 (1951).

“Purchase” Construed.

Where oil, gas, and mineral interests were deeded from grandchild to her aunt several weeks before will was offered to probate in Louisiana, but that will was not offered for probate in Arkansas until 10 years later, the fact that the granddaughter may have had notice of the existence of the will before her conveyance did not cause the conveyance not to be qualified as a “purchase” under subsection (c) of this section and thus foreclose the admission of the will to probate despite the expiration of the five-year period under this section, since the phrase “purchase” as used in subsection (c) of this section does not mean or imply a bona fide purchaser without notice. Cooper v. Tosco Corp., 272 Ark. 294, 613 S.W.2d 831 (1981).

Cited: Blair v. Bradley, 238 Ark. 191, 379 S.W.2d 5 (1964); Johnson v. Johnson, 292 Ark. 536, 732 S.W.2d 121 (1987).

28-40-104. No will effectual until probated — Unprobated wills admitted as evidence.

  1. No will shall be effectual for the purpose of proving title to or the right to the possession of any real or personal property disposed of by the will until it has been admitted to probate.
  2. Except as provided in § 28-41-101, to be effective to prove the transfer of any property or to nominate an executor, a will must be declared to be valid by an order of probate by the circuit court, except that a duly executed and unrevoked will which has not been probated may be admitted as evidence of a devise if:
    1. No proceeding in circuit court concerning the succession or administration of the estate has occurred; and
    2. Either the devisee or his or her successors and assigns possessed the property devised in accordance with the provisions of the will, or the property devised was not possessed or claimed by anyone by virtue of the decedent's title during the time period for testacy proceedings.
  3. The provisions of subsections (b) and (c) of this section shall be supplemental to existing laws relating to the time limit for probate of wills, and the effect of unprobated wills, and shall not be construed to repeal § 28-40-103 and subsection (a) of this section or any other law not in direct conflict herewith.

History. Acts 1949, No. 140, § 65; 1981, No. 347, §§ 1, 2; A.S.A. 1947, §§ 62-2126 — 62-2126.2.

Research References

U. Ark. Little Rock L.J.

Legislative Survey, Decedents' Estates, 4 U. Ark. Little Rock L.J. 591.

Case Notes

Purpose.

The intent of subsections (b) and (c) was not to alter existing laws affecting the timely probate of wills in order to give effect to their provisions, but to evidence a claim of ownership by one who has been in possession of property consistent with the terms of an unrevoked will which was not probated. Johnson v. Johnson, 292 Ark. 536, 732 S.W.2d 121 (1987).

Applicability.

Actual possession, rather than constructive possession, is contemplated for subsection (b) to apply. Johnson v. Johnson, 292 Ark. 536, 732 S.W.2d 121 (1987).

Trial court did not err when it found that, under subdivision (b)(2) of this section, a niece was the owner of the content's of her deceased uncle's safety deposit box where, even though his will had not been probated, a copy of his unprobated will named her as sole beneficiary; the situation fit within the parameters of subsection (b)(2), which thus allowed evidence of the testator's intention and provided the evidence that supported the trial court's conclusion that niece was the owner of the box contents. Atkinson v. Knowles, 82 Ark. App. 224, 105 S.W.3d 818 (2003).

Delay in Closing Estate.

Where chancellor gave effect to the provisions of will which had been admitted to probate in 1936, since the will was filed and admitted to probate in a timely manner, and there were no inequities resulting from the unusual delay in closing the estate, there was no reason to disturb the chancellor's decision giving full effect to the will. Blundell v. Estate of Cox, 297 Ark. 320, 760 S.W.2d 872 (1988).

Evidence of Devise to Remainderman.

Where the testator's duly executed will, though never probated, remained unrevoked, where there had been no administration of the estate, and where the testator's devisee for life had possessed the property until his death, the will was properly admitted as evidence of the devise of the testator's property to the remainderman. Smith v. Ward, 278 Ark. 62, 643 S.W.2d 549 (1982).

Possession of Property.

A decedent's unprobated, duly executed, and nonrevoked will was properly admitted as evidence of devise of farm property since devisees under the will met the requirement of actual possession, notwithstanding that they did not physically possess the property, where (1) the devisees made the tenant aware that they owned the land and that they intended to continue the arrangement the tenant had with the decedent, (2) they conferred with the tenant about what crops to grow and the operation of the farm, (3) they visited the farm two or three times a year, (4) they signed a power of attorney and completed government documents, (5) they received subsidies from the government, and one-third of the profits generated by the tenant as rent, (6) as the will provided, they split the costs and income of the property evenly, (7) they also split the costs of expenses, insurance, real estate taxes, and levee taxes, and (8) when a bridge on the property collapsed, they posted no trespassing notices and blocked access to the bridge. Songer v. Wiggens, 71 Ark. App. 152, 27 S.W.3d 755 (2000).

Small Estates.

Circuit court erred in granting the declaratory judgment in favor of the heirs and ordering the decedent's land to be sold and the proceeds divided accordingly, where the circuit court's ruling was based on an erroneous interpretation and application of this section; because the small-estate procedure was excepted from the requirements of this section and § 28-41-101, the issue of whether the beneficiary commenced a probate proceeding was irrelevant. Osborn v. Bryant, 2009 Ark. 358, 324 S.W.3d 687 (2009).

Cited: Odom v. Travelers Ins. Co., 174 F. Supp. 426 (W.D. Ark. 1959); Rachel v. Johnson, 230 Ark. 1003, 328 S.W.2d 87 (1959); Delafield v. Lewis, 299 Ark. 50, 770 S.W.2d 659 (1989).

28-40-105. Delivery of will by custodian.

  1. After the death of a testator, the person having custody of his or her will shall deliver it to the court which has jurisdiction of the estate or to the executor named in the will.
    1. Upon the written motion of an interested person, the clerk shall issue a citation against any person who is alleged to possess the will of a testator directing that the alleged will be produced at a time specified in the citation.
    2. A person who willfully refuses or fails to deliver a will after being duly ordered by the court to do so shall be guilty of contempt of court. He or she shall also be liable to any aggrieved party for damages which may be sustained by such a refusal or failure.

History. Acts 1949, No. 140, § 42; A.S.A. 1947, § 62-2103.

Case Notes

Jurisdiction of Probate Court.

Where a will provided for a trust under the supervision of the chancery court, which assumed administration of the trust, the probate court had jurisdiction to determine whether bequest under the will was payable since it was concerned with administration of the estate, but it did not have jurisdiction to determine whether petitioner had right to rents and possession of trust lands since that involved administration of the trust under supervision of the chancery court. Cross v. McLaren, 223 Ark. 674, 267 S.W.2d 956 (1954).

Executor of decedent's will was not required to deliver the will to the proper court where he was the named executor of the will; further, under § 28-40-107, an illegitimate child who had never been declared legitimate did not qualify as an interested person within the Probate Code who was required to recieve notice. Shelton v. Keathley, 367 Ark. 568, 242 S.W.3d 223 (2006).

28-40-106. Powers of nominated executor prior to appointment.

  1. Prior to the probate of the will and granting of letters testamentary, a person nominated in the will to be executor may take such steps as are reasonably necessary in the management and preservation of the property and rights of the decedent and, subject to the prior rights of members of the immediate family of the decedent, may arrange for his or her burial.
    1. If the court refuses to admit the proffered will to probate or the person shall not qualify as executor, he or she shall not be liable for his or her acts done in good faith and for which he or she would not be liable had he or she been the lawful executor.
    2. However, promptly upon the appointment of a personal representative, the person shall account to the personal representative for steps taken and acts performed by him or her and deliver to the personal representative any assets of the estate which have come into his or her hands.

History. Acts 1949, No. 140, § 43; A.S.A. 1947, § 62-2104.

Case Notes

Authority of Executor.

A will, though fully proven and established, confers no power on an executor other than for the burial of the deceased and the preservation of his estate; the authority of the executor to act as such is derived from the letters testamentary, and his appointment must be confirmed by a probate court. Diamond v. Shell, 15 Ark. (2 Barber) 26 (1854) (decision under prior law).

Executor De Son Tort.

In Arkansas, an executor de son tort, as at common law, is unknown. Rust v. Witherington, 17 Ark. (4 Barber) 129 (1856) (decision under prior law).

Intermeddling.

One who intermeddles without authority in the estate of a deceased person is responsible to the rightful executor and not to a creditor. Barasien v. Odum, 17 Ark. (4 Barber) 122 (1856) (decision under prior law).

Powers Before Qualification.

An executor's powers before qualification are limited to the burial of the deceased and the preservation of his estate; if before then he intermeddles with the estate, his subsequent qualification legalizes his tortious act, making him liable to those interested in the estate and protecting the party with whom he deals. McDearmon v. Maxfield, 38 Ark. 631 (1882) (decision under prior law).

Sue or Be Sued.

Nothing in this section authorizes a personal representative to sue or be sued until such time as he has received letters of administration. Jenkins v. Means, 242 Ark. 111, 411 S.W.2d 885 (1967).

28-40-107. Petition for probate and appointment of personal representative.

  1. An interested person may petition the court of the proper county:
    1. For the admission of the will to probate, although it may not be in his or her possession or may be lost, destroyed, or outside the state;
    2. For the appointment of executor if one is nominated in the will;
    3. For the appointment of an administrator if no executor is nominated in the will or if the person so named is disqualified or unsuitable, or refuses to serve, or if there is no will.
  2. A petition for probate may be combined with a petition for the appointment of an executor or administrator. A person interested in either the probate of the will or the appointment of a personal representative may petition for both.
  3. A petition for probate of a will or for the original appointment of a general personal representative, or for both, shall state:
    1. The name, age, residence, and date and place of death of the decedent;
    2. The names, ages, relationships to the decedent, and residence addresses of the heirs and devisees, if any, so far as they are known or can with reasonable diligence be ascertained;
    3. The probable value, stated separately, of the real and of the personal property;
    4. If the decedent did not reside in the state at the time of his or her death, a general description of the property situated in each county in this state and the value thereof;
    5. If the venue is based upon § 28-40-102(a)(4), the facts establishing the venue;
    6. If the decedent died testate and the will is not filed, the contents of the will, either by attaching a copy of it to the petition or, if the will is lost, destroyed, or suppressed, by including a statement of the provisions of the will so far as known;
    7. The names and residence addresses of the persons, if any, nominated as executors; and
    8. If the appointment of a personal representative is sought, the name and residence address of the person for whom letters are prayed, his or her relationship to the decedent, or other facts, if any, which entitle the person to appointment.

History. Acts 1949, No. 140, §§ 44, 45; A.S.A. 1947, §§ 62-2105, 62-2106.

Case Notes

Appointment of Executor.

The probate judge did not abuse her discretion in finding that the decedent's sister was unsuitable to serve in the position of executrix, in light of her simultaneous role as executrix of the decedent's late wife's estate. Burch v. Griffe, 342 Ark. 615, 29 S.W.3d 726 (2000).

Circuit court erred in appointing appellee as the administratrix of the decedent's estate because appellee was not an “interested person” under the relevant statutes with standing to petition the probate court. Lucas v. Wilson, 2011 Ark. App. 584, 385 S.W.3d 891 (2011).

Compliance with Statutory Provisions.

The notation of the clerk on the reverse side of a will showing the filing, followed by a notation of the judge approving “the action of the clerk admitting the will to probate” was substantial compliance with former statute admitting the will to probate. Holliday v. Phillips Petroleum Co., 275 F. Supp. 686 (E.D. Ark. 1967) (decision under prior law).

Executor of decedent's will was not required to deliver the will to the proper court under § 28-40-105 because he was the named executor of the will; further, an illegitimate child who had never been declared legitimate did not qualify as an interested person within the Probate Code who was required to recieve notice. Shelton v. Keathley, 367 Ark. 568, 242 S.W.3d 223 (2006).

Cited: Boatman v. Dawkins, 294 Ark. 421, 743 S.W.2d 800 (1988).

28-40-108. Requests for notices.

    1. If an interested person desires to be notified before a will is admitted to probate or before a general personal representative is appointed, he or she may file with the clerk a demand for notice.
    2. A demand for notice is not effective unless it contains a statement of the interest of the person filing it and his or her address or that of his or her attorney.
    3. After filing the demand, no will shall be admitted to probate and no personal representative shall be appointed, other than a special administrator, until the notice provided in § 28-40-110 has been given.
    1. At any time after the issuance of letters, any person interested in the estate may serve, in person or by attorney, upon the personal representative or upon his or her attorney and file with the clerk of the court where the proceeding is pending, with a written admission or proof of service, a written request stating that he or she desires written notice by ordinary mail of the time and place of all hearings on the settlement of accounts, on final distribution, and on any other matters for which any notice is required by law, by rule of court, or by an order in the particular case.
    2. The applicant for such a notice must include in his or her written request his or her post office address and that of his or her attorney, if any.
    3. Unless the court otherwise directs, after the request has been filed, the person shall be entitled to notice of all hearings for which any notice is required as aforesaid or of such hearings as he or she designates in his or her request.

History. Acts 1949, No. 140, §§ 46, 47; A.S.A. 1947, §§ 62-2107, 62-2108.

Research References

Ark. L. Rev.

Notices under the Probate Code, 8 Ark. L. Rev. 324.

Case Notes

Claims Disallowed.

Where claimant filed a claim against the estate of the deceased more than six months after the first notice to creditors, but less than six months after the heirs had filed their waivers of notice, the claim was properly disallowed. Chamberlain v. Crawford, 236 Ark. 468, 366 S.W.2d 897 (1963).

Complaints by Heirs.

If the heirs feel aggrieved at any action taken or are of the view that some right has been denied them because no notice was given them, they have the prerogative (under certain circumstances) to complain. Chamberlain v. Crawford, 236 Ark. 468, 366 S.W.2d 897 (1963).

Cited: Wilson v. Davis, 239 Ark. 305, 389 S.W.2d 442 (1965).

28-40-109. Hearing on petition without notice.

Upon filing the petition for probate or for the appointment of a general personal representative, if no demand for notice has been filed as provided in § 28-40-108, and if such a petition is not opposed by an interested person, the court in its discretion may hear it immediately or at such time and place as it may direct without requiring notice.

History. Acts 1949, No. 140, § 48; A.S.A. 1947, § 62-2109.

Research References

Ark. L. Rev.

Notices under the Probate Code, 8 Ark. L. Rev. 324.

Case Notes

Claims Disallowed.

Where claimant filed a claim against the estate of the deceased more than six months after the first notice to creditors but less than six months after the heirs had filed their waivers of notice, the claim was properly disallowed. Chamberlain v. Crawford, 236 Ark. 468, 366 S.W.2d 897 (1963).

Cited: Keenan v. Peevy, 267 Ark. 218, 590 S.W.2d 259 (1979).

28-40-110. Notice of hearing on petitions.

  1. If the petition for probate or for the appointment of a general personal representative is opposed, or if a demand for notice has been filed under the provisions of § 28-40-108, the court shall, and in all other cases the court may, fix a time and place for a hearing on the petition.
  2. Notice of the hearing shall be given by one (1) or more of the methods set out in § 28-1-112 to each heir and devisee whose name and address is given, including notice other than by publication to each person who has filed demand for notice.
  3. If it appears by the petition or otherwise that the fact of the death of the person whose estate is to be administered may be in doubt, or on the written demand of an interested person, a copy of the notice of the hearing on the petition shall be sent by registered mail to the last known residence address of the alleged decedent.
  4. The notice required by this section shall be in substantially the following form:

In the Circuit Court of County, Arkansas. Estate of , deceased. To all persons interested in the Estate of , (and to the said , if he be not deceased): You are hereby notified that a petition has been filed in this court (to admit to probate the will of , and) for the appointment of a personal representative for said estate; that said petition will be heard at o'clock at on the day of , 20 , or at such subsequent time or other place to which said hearing may be adjourned or transferred. Date . Probate Clerk of the Circuit Court of County, Arkansas

Click to view form.

History. Acts 1949, No. 140, § 49; A.S.A. 1947, § 62-2110; Acts 2003, No. 1185, § 277.

Research References

Ark. L. Rev.

Notices under the Probate Code, 8 Ark. L. Rev. 324.

Case Notes

Duty to Give Notice.

It was the duty of an executor or administrator, at his official peril, to give the notice to creditors required by former statute, but this duty was not a condition precedent to the exhibition of claims within the required period. Bennett v. Dawson, 15 Ark. (2 Barber) 412 (1855) (decision under prior law).

Notice Form.

Notice took the form recommended by one statute, and the essence of the notice was that one heir was opening the decedent's estate, but the actual probate proceeding she pursued was for the collection of a small estate, and the notice required for that is found in another statute, and appellants testified that they did not receive personal notice, and this testimony was not actually disputed; the trial court clearly erred when it found that the heir satisfied the statutory procedures for collection of a small estate. Bryant v. Osborn, 2014 Ark. 143 (2014).

Cited: Chamberlain v. Crawford, 236 Ark. 468, 366 S.W.2d 897 (1963); Keenan v. Peevy, 267 Ark. 218, 590 S.W.2d 259 (1979); Boatman v. Dawkins, 294 Ark. 421, 743 S.W.2d 800 (1988).

28-40-111. Notice of appointment of personal representative.

      1. Promptly after the letters have been granted on the estate of a deceased person, the personal representative shall cause a notice of his or her appointment to be published stating the date of his or her appointment and requiring all persons having claims against the estate to exhibit them, properly verified to him or her, within six (6) months from the date of the first publication of the notice, or they shall be forever barred and precluded from any benefit in the estate.
      2. Claims for injury or death caused by the negligence of the decedent shall also be filed within six (6) months from the date of first publication of the notice, or they shall be forever barred and precluded any benefit in the estate.
    1. The notice shall state the mailing address of the personal representative.
    2. If a will of the decedent has been probated, the notice shall also state the date of admission of the will to probate and that a contest of the order of probate can be effected only by filing a petition within the time provided by law.
      1. Within one (1) month after the first publication of the notice, a copy of the notice shall also be served upon each heir and devisee whose name and address are known and upon all unpaid creditors whose names, status as creditors, and addresses are known to or reasonably ascertainable by the personal representative, including the Department of Human Services if it is known or could reasonably be ascertained that the department has rendered services to the decedent, in accordance with § 28-1-112(b)(1), § 28-1-112(b)(2), or § 28-1-112(b)(3).
        1. Notice to the department shall be served upon the Office of Chief Counsel, Decedent's Estates, P.O. Box 1437, Little Rock, AR 72203.
        2. A copy of the petition for probate of a will or administration of an estate and the decedent's social security number shall be attached to the notice served upon the department.
        1. If, thereafter, the names and addresses of any such creditors are ascertained, a copy of the notice shall be promptly served upon them.
        2. The burden of proof on any issue as to whether a creditor was known to or reasonably ascertainable by the personal representative shall be upon the creditor claiming entitlement to such actual notice.
  1. When a will is to be probated without an administration of the estate, the notice shall be published by the proponents of the will and shall state the mailing address of each of the one (1) or more proponents and the name and address of the attorney for the proponents.
  2. The notice shall be in substantially the following form:
    1. (To be used where no will.)
    2. (To be used when a will is probated and a personal representative appointed.)
    3. (To be used when a will is probated but no personal representative appointed.)
    4. (To be used in cases where a personal representative is appointed.)
    1. Publication of the notice shall be as provided in § 28-1-112(b)(4) unless the value of the estate to be administered upon does not exceed one thousand dollars ($1,000), exclusive of homestead, in which event publication may be given by posting notice in the courthouse at a conspicuous place near a principal entrance for a period of three (3) weeks.
    2. In addition, the court may by general rule, or by special order in a particular case, require that notice shall be given by ordinary mail to all persons whose names and addresses appear in the petition.

“In the Circuit Court of County, Arkansas

In the Matter of the Estate of , Deceased. No

Last known address

Date of death

The undersigned was appointed administrator of the estate of the above decedent on the day of , 20

An instrument dated was on the day of , 20 , admitted to probate as the last will of the above named decedent and the undersigned has been appointed executor (or administrator) thereunder. Contest of the probate of the will can be effected only by filing a petition within the time provided by law.

An instrument dated was on the day of , 20 , admitted to probate as the last will of the above named decedent. Contest of the probate of the will can be effected only by filing within the time provided by law a petition for an order revoking or modifying the order admitting the will to probate, and delivering a copy of such petition to the undersigned proponent(s) or the undersigned attorney for the proponent(s) at his (their) address hereunder shown.

All persons having claims against the estate must exhibit them, duly verified, to the undersigned within six (6) months from the date of the first publication of this notice, or they shall be forever barred and precluded from any benefit in the estate.

This notice first published , 20

(Administrator, Executor, Proponent, or Petitioner)

(Mail Address)”

History. Acts 1949, No. 140, § 50; 1953, No. 32, § 1; 1967, No. 287, § 1; 1985, No. 1007, § 1; A.S.A. 1947, § 62-2111; Acts 1987 (1st Ex. Sess.), No. 16, § 1; 1989, No. 929, § 2 [1]; 1989 (3rd Ex. Sess.), No. 59, § 1; 1993, No. 415, § 2; 2009, No. 217, § 1.

A.C.R.C. Notes. Acts 1987 (1st Ex. Sess.), No. 16, § 2, provided that this act shall be applicable to estates where administration is pending on June 12, 1987, and that if any notice required by this act has not previously been given by the personal representative, the personal representative shall give such notice within 90 days from June 12, 1987, if the claims of persons to receive notice are not barred by the expiration period set forth in § 28-50-101.

Amendments. The 2009 amendment substituted “six (6) months” for “three (3) months” in (a)(1)(A) and the second paragraph of (c)(4); substituted “Circuit” for “Probate” in the line following the introductory language in (c); deleted the last sentence in the second paragraph of (c)(4), which read: “However, claims for injury or death caused by the negligence of the decedent shall be filed within six (6) months from the date of first publication of the notice, or they shall be forever barred and precluded from any benefit in the estate”; and made stylistic and minor punctuation changes.

Research References

Ark. L. Rev.

Amendments of the Probate Code, 7 Ark. L. Rev. 377.

Notices under the Probate Code, 8 Ark. L. Rev. 324.

Panel on Experience under the Arkansas Probate Code, 12 Ark. L. Rev. 40.

Haught, 1988 Update to the Arkansas Probate System: An Overview of Recent Developments in Arkansas Probate Practice, 42 Ark. L. Rev. 631.

Note, The Requirement of Notice in Probate Proceedings: Recent Changes in Arkansas Law, 43 Ark. L. Rev. 945.

U. Ark. Little Rock L.J.

Legislative Survey, Probate, 8 U. Ark. Little Rock L.J. 597.

Note, Probate — Satisfying the Due Process Requirement of Actual Notice to Estate Creditors, Tulsa Professional Collection Services v. Pope, 108 S. Ct. 1340, 485 U.S. 478, 99 L. Ed. 2d 565 (1988), 11 U. Ark. Little Rock L.J. 603.

Case Notes

Construction.

A creditor of an estate must be subject to identification during the three month (now six (6) months) statute of nonclaim, § 28-50-101(a); if this were not the case, then all matters of estate would be left open for two years under § 28-50-101(h) and subsection (a) of this section, which was certainly not the intent of the legislature. Brasel v. Estate of Harp, 317 Ark. 379, 877 S.W.2d 923 (1994).

Claims Disallowed.

Where claimant filed a claim against the estate of the deceased more than six months after the first notice to creditors, but less than six months after the heirs had filed their waivers of notice, the claim was properly disallowed. Chamberlain v. Crawford, 236 Ark. 468, 366 S.W.2d 897 (1963) (decision under prior law).

Persons Entitled to Receive Notice.

There is no requirement of notice of estate proceedings to parties who have no direct interest in decedents' estates, and those parties do not have standing to enter to the estate proceeding or to raise the issue whether decedents' offspring, who had been convicted of manslaughter in their death, could inherit from their estate. Kimrey v. Booth, 285 Ark. 18, 685 S.W.2d 139 (1985).

Circuit court applied the correct legal standard in considering the creditor's claims against the estate as untimely and did not improperly determine that written service of notice was unnecessary; the circuit court's statements that the creditor knew of decedent's death merely provided background information. CMS Inv. Holdings, LLC v. Estate of Wilson, 2016 Ark. App. 545, 506 S.W.3d 292 (2016).

Because the creditor failed to obtain a ruling on the issue of the personal representative's reasonable diligence in searching for creditors of the estate, the issue was summarily disposed of on appeal. CMS Inv. Holdings, LLC v. Estate of Wilson, 2016 Ark. App. 545, 506 S.W.3d 292 (2016).

In determining whether the creditor was entitled to notice, the circuit court merely provided background information that it deemed relevant to the issue of whether the creditor was either known or reasonably ascertainable, and it did not impose requirements on the creditor that were more stringent than the law provides. CMS Inv. Holdings, LLC v. Estate of Wilson, 2016 Ark. App. 545, 506 S.W.3d 292 (2016).

Circuit court did not clearly err when it determined that the creditor was not a known or reasonably ascertainable creditor; ample evidence supported its conclusion. CMS Inv. Holdings, LLC v. Estate of Wilson, 2016 Ark. App. 545, 506 S.W.3d 292 (2016).

Circuit court did not improperly consider the merits of the creditor's claims against the estate when deciding whether the creditor was a known or reasonably ascertainable creditor and thus entitled to notice. CMS Inv. Holdings, LLC v. Estate of Wilson, 2016 Ark. App. 545, 506 S.W.3d 292 (2016).

Petition to Set Aside Will.

Where brothers of testator were not given notice of the admission of the will to probate in the manner required by this section, but were mentioned as heirs in the petition to probate, their petition to set aside the will filed six months and 13 days after the admission of the will to probate was filed in time under subsection (b)(2)(C) of § 28-40-113. Jones v. Jones, 234 Ark. 163, 350 S.W.2d 673 (1961) (decision under prior law).

Cited: Brickey v. Lacy, 247 Ark. 906, 448 S.W.2d 331 (1969); Gibbins v. Hancock, 267 Ark. 298, 590 S.W.2d 280 (1979); Boatman v. Dawkins, 294 Ark. 421, 743 S.W.2d 800 (1988); In re Estate of Spears, 314 Ark. 54, 858 S.W.2d 93 (1993).

28-40-112. Search for alleged decedent.

Whenever there is reasonable doubt that the person whose estate is to be administered is dead, the court, upon application of an interested person, may direct the personal representative to make search for the alleged decedent in any manner which the court may deem advisable, including, but not limited to, any or all of the following methods:

  1. By inserting in one (1) or more suitable periodicals a notice requesting information from any person having knowledge of the whereabouts of the alleged decedent;
  2. By notifying officers of justice and public welfare agencies in appropriate locations of the disappearance of the alleged decedent; or
  3. By engaging the services of an investigating agency.

History. Acts 1949, No. 140, § 51; A.S.A. 1947, § 62-2112.

Research References

Ark. L. Rev.

Note, the Requirement of Notice in Probate Proceedings: Recent Changes in Arkansas Law, 43 Ark. L. Rev. 945.

28-40-113. Contest of will generally.

  1. An interested person may contest the probate of a will, or any part thereof, by stating in writing the grounds of his or her objection and filing them in the court.
  2. No will can be contested unless the grounds of objection are filed within the periods hereinafter provided:
    1. If the ground of objection is that another will of the decedent has been discovered, the ground of objection must be filed before final distribution of the estate is ordered and within the period stated in § 28-40-103;
    2. If the contest is on any other ground and if the contestant or the person through whom he or she derives his or her interest in the estate:
      1. Has been given notice, other than by publication, of the hearing of a petition for probate as provided in § 28-40-110, his or her grounds for objection must be filed at or prior to the time of the hearing on the petition for probate;
      2. Has been notified of the admission of the will to probate in the manner provided by § 28-40-111 and is not barred by subdivision (b)(2)(A) of this section, his or her grounds of objection must be filed within three (3) months after the date of the first publication of the notice of the admission of the will to probate;
      3. Is not barred by the provisions of subdivision (b)(2)(A) or (B) of this section, but notice of the admission of the will to probate has been published as provided in § 28-40-111, whether or not published promptly, and a copy thereof has been served upon the contestant or the person through whom he or she derives his or her interest in the estate in accordance with § 28-1-112(b)(1), (2), or (3), the contestant must file his or her grounds for objection to the probate of the will within three (3) months after the first publication of notice of the probate or within forty-five (45) days after a copy of the notice was served upon him or her or his or her predecessor in interest in the estate, whichever period shall last expire; and
      4. Is not barred by any of the provisions of subdivision (b)(2)(A), (B), or (C) of this section, his or her grounds for objection must be filed within three (3) years after the admission of the will to probate; and
    3. The grounds for objection to a foreign will which has been admitted to probate in this state must be filed within the same time as though it were a will of a resident of this state, or thereafter within forty-five (45) days after the rendition of an order of a court of competent jurisdiction in the state of the domicile of the decedent, setting aside the probate of the will therein.

History. Acts 1949, No. 140, §§ 52, 53; 1951, No. 255, § 4; 1967, No. 287, § 2; 1985, No. 1007, § 2; A.S.A. 1947, §§ 62-2113, 62-2114.

Research References

Ark. L. Notes.

Sampson, Burden Shifting in Will Contest Cases: An Examination and a Proposal that the Arkansas Supreme Court Reconcile Arkansas Rules of Evidence Rule 301 with its Undue Influence Case Law, 1996 Ark. L. Notes 87.

Ark. L. Rev.

Probate Code Amendments, 5 Ark. L. Rev. 377. Jackson v. Braden, 290 Ark. 117, 717 S.W.2d 206 (1986).

Case Notes

Burden of Proof.

When surviving son offered a will for probate, he had the burden of proving the genuineness of the signatures; he made such proof, and the will was admitted to probate. When other persons sought to contest the will, they had the burden of sustaining the contest on the alleged ground that the signatures to the will were a forgery. Ross v. Edwards, 231 Ark. 902, 333 S.W.2d 487 (1960).

Substantial evidence supported a probate court finding that testator's first wife, who claimed a dower interest in estate, had not carried the burden of proving invalidity of second marriage merely by showing validity of her marriage to deceased and the absence of any court record of divorce in any one of three counties of her state, as valid divorce could have been granted elsewhere. Miller v. Miller, 237 Ark. 66, 371 S.W.2d 511 (1963).

The party contesting the validity of the will has the burden of proving by the preponderance of the evidence that the testator lacked mental capacity at the time the will was executed or that the testator acted under undue influence. Wells v. Estate of Wells, 325 Ark. 16, 922 S.W.2d 715 (1996).

Consolidation of Contests.

Where five separate contests of a will were appealed from the probate court to the circuit court, they were properly consolidated for trial as a single case. First Nat'l Bank v. Ary, 180 Ark. 1084, 24 S.W.2d 336 (1930) (decision under prior law).

Construction and Interpretation.

If the instrument offered was a will, it was to be admitted to probate, and its construction and interpretation were to be left to other courts having jurisdiction of the matter. Powell v. Hayes, 176 Ark. 660, 3 S.W.2d 974 (1928) (decision under prior law).

Contest Barred by Limitations.

Where no attack was made on a will within six months after it was duly probated and notice thereof published, the plaintiff was barred by limitations from contesting it. Montgomery v. Blankenship, 217 Ark. 357, 230 S.W.2d 51, 21 A.L.R.2d 212 (1950) (decision under prior law).

Full Faith and Credit.

The will of a person who had a domicil in another state in which the will was probated, insofar as it related to the devolution of either real or personal property in this state, could be contested, provided that full faith and credit had to be given by each state to the public acts, records, and judicial proceedings of every other state. Schweitzer v. Bean, 154 Ark. 228, 242 S.W. 63 (1922) (decision under prior law).

Grounds for Contest.

A party interested in the probate of the will of a nonresident could contest the probate upon the grounds of incapacity or undue influence. Selle v. Rapp, 143 Ark. 192, 220 S.W. 662, 13 A.L.R. 494 (1920) (decision under prior law).

Pursuant to subsection (b), if a will contest was on any ground other than that another will had been discovered, and if the will contestant had been given proper notice, the contestant's grounds for objection had to be filed at or prior to the time of the hearing on the petition for probate; this section does not allow a party to make an oral objection to a will such that, while all the beneficiaries may not have been properly served, they had constructive and actual notice of the probating of the will. West v. Williams, 355 Ark. 148, 133 S.W.3d 388 (2003).

Interested Persons.

While, in a will contest, it would have been better practice to determine, as a preliminary question, the interest of any contestant whose right to sue as heir was disputed, the court could, in its discretion, submit to the jury this question, together with the main issue. Flowers v. Flowers, 74 Ark. 212, 85 S.W. 242 (1905) (decision under prior law).

Brothers and sisters of testator, who left surviving him heir in person of adopted son, were not “interested” persons, entitled to sue to set aside testator's will. Hawkins v. Hawkins, 218 Ark. 423, 236 S.W.2d 733 (1951).

Just any collateral heir is not necessarily an “interested person” with a right to contest the probate of a will under this section. Mabry v. Mabry, 259 Ark. 622, 535 S.W.2d 824 (1976).

Remote heirs, decedent's sister, nieces and nephew, were not “interested persons” entitled to contest a will under subsection (a) because they would not have taken by intestate succession at that time since decedent's two daughters were were still living. Hardie v. Estate of Davis, 312 Ark. 189, 848 S.W.2d 417 (1993).

A daughter of the decedent, who received an equal share under the will at issue, had standing to question the validity of the will, notwithstanding that her interest was not detrimentally affected by the will. Barrera v. Vanpelt, 332 Ark. 482, 965 S.W.2d 780 (1998).

Jurisdiction.

Trial court had authority to consider a challenge to decedent's will subsequent to a hearing at which it orally announced its decision to admit a purported will to probate because no written order had been entered and filed of record from the prior hearing; subsection (b) of this section was not applicable because the trial court never lost subject-matter jurisdiction and was free to hear additional evidence and to alter its decision upon further consideration of the facts and circumstances surrounding the will. Judkins v. Hoover, 351 Ark. 552, 95 S.W.3d 768 (2003), overruled in part, West v. Williams, 355 Ark. 148, 133 S.W.3d 388 (2003).

Petition by Minors.

A petition by a minor to set aside the probate of a will filed after statutory period had expired was properly dismissed, since no exception in favor of minors is provided for by this section. Brown v. Hawkins, 219 Ark. 239, 240 S.W.2d 863 (1951).

Pretermitted Children.

The limitation contained in subsection (b)(2) of this section does not apply to an action by pretermitted children against the sole devisee of their father's will for partition of the real estate devised in the will. Negovanov v. Wensko, 248 Ark. 1109, 455 S.W.2d 929 (1970).

Review of Circuit Court Decision.

In a will contest pursuant to this section, admission of a testator's will to probate was proper because preponderance of the evidence supported the circuit court's finding that both sons had confidential relationships with the testator, that the testator had testamentary capacity when he executed his will, and that the will was not the result of undue influence. Breckenridge v. Breckenridge, 2010 Ark. App. 277, 375 S.W.3d 651 (2010).

Review of Probate Court Decision.

A court of equity was not authorized to review the decision of the probate court upon the probate of a will where there had been no appeal to the circuit court. Mitchell v. Rogers, 40 Ark. 91 (1882) (decision under prior law).

After a probate court has probated a will, necessarily putting testamentary capacity in issue, equity has no jurisdiction to review this capacity, even though no jurisdictional objection is made, unless there is extrinsic fraud upon the probate court because the Arkansas Constitution places exclusive probate jurisdiction in the probate court. O'Dell v. Newton, 224 Ark. 541, 275 S.W.2d 453 (1955).

Due deference will be given to the superior position of the probate judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Wells v. Estate of Wells, 325 Ark. 16, 922 S.W.2d 715 (1996).

Review of Circuit Court Decision.

Trial court erred in finding that decedent's spouse and brother did not procure the will, and, as such, they were obligated to rebut the presumption of undue influence, however, nothing in the record suggested that their influence operated to override the decedent's discretion or destroy the decedent's free will, and a medical doctor and other disinterested witnesses testified that the decedent was of sound mind when decedent executed his will; thus, the trial court's error was harmless. In re Estate of Garrett, 81 Ark. App. 212, 100 S.W.3d 72 (2003).

Setting Aside for Fraud.

A judgment admitting a will to probate could not be set aside for fraud on ground that judgment was based on copy instead of original will, since representation was not extrinsic. Blankenship v. Montgomery, 218 Ark. 864, 239 S.W.2d 272 (1951).

A judgment admitting a will to probate could not be set aside on ground of fraud based on fact that counsel for proponents of will persuaded court to appoint executors without bond, since this was an intrinsic matter. Blankenship v. Montgomery, 218 Ark. 864, 239 S.W.2d 272 (1951).

A judgment admitting a will to probate could not be set aside for fraud on ground that mental incapacity of deceased was concealed from the court, since concealment related to intrinsic matter and did not constitute extrinsic fraud. Blankenship v. Montgomery, 218 Ark. 864, 239 S.W.2d 272 (1951).

A judgment admitting a will to probate could not be set aside on the ground that counsel for proponents had concealed from the court the fact that a “living trust” was incorporated in will where reference to trust appeared on the face of the instrument, since fraud alleged was intrinsic. Blankenship v. Montgomery, 218 Ark. 864, 239 S.W.2d 272 (1951).

Timely Filing.

Where brothers of testator were not given notice of the admission of the will to probate in the manner required by § 28-40-111, but were mentioned as heirs in the petition to probate, their petition to set aside the will filed six months and 13 days after the admission of the will to probate was filed in time under subsection (b)(2)(C) of this section. Jones v. Jones, 234 Ark. 163, 350 S.W.2d 673 (1961) (decision prior to 1985 amendment).

Where petition to contest a will reached the county clerk and, though not filed separately, was placed in the case file of deceased's estate within the statutory period for filing, the petition was deemed timely filed under this section. Edwards v. Brimm, 236 Ark. 588, 367 S.W.2d 433 (1963).

Legal malpractice suit based on an attorney's handling of an estate was not ripe for adjudication because a challenge could still be raised in the probate proceedings since the longer limitations period for challenges based on discovery of another will applied, even if the challenge was supported by a copy of the will. Kennedy v. Ferguson, 679 F.3d 998 (8th Cir. 2012).

Triggered No Contest Clause.

Trial court did not err in finding that appellant contested the will, and although appellant claimed that she never made a written objection to the will under subsection (a) of this section and thus she could not have challenged the will, the court disagreed; by submitting a second will for probate drafted a week after the first will, in appellant's handwriting and leaving the bulk of the estate to herself, appellant clearly challenged the validity of the first will and sufficient evidence supported the conclusion that appellant was not acting in good faith when she offered that will for probate, such that her actions triggered the no-contest clause in the will. Seymour v. Biehslich, 371 Ark. 359, 266 S.W.3d 722 (2007).

Cited: Negovanov v. Wensko, 248 Ark. 1109, 455 S.W.2d 929 (1970); Coleman v. Coleman, 257 Ark. 404, 520 S.W.2d 239 (1975); Carpenter v. Horace Mann Life Ins. Co., 21 Ark. App. 112, 730 S.W.2d 502 (1987); Spicer v. Estate of Spicer, 55 Ark. App. 267, 935 S.W.2d 576 (1996).

28-40-114. Notice of contest.

    1. If a statement for grounds for objection to admitting the will to probate is filed before it has been admitted and the notice provided for in § 28-40-110 has been given, no further notice is necessary unless ordered by the court.
    2. If the notice provided for in § 28-40-110 has not been given, the notice therein provided for shall be given and shall further state that the will is being contested.
  1. If a statement of grounds for objection to admitting the will to probate is filed after the will has been admitted and within the time limitations stated in § 28-40-113, the court shall fix a time and place for hearing the grounds for objection, and notice shall be given to each heir and devisee whose place of residence is known and, if the grounds for contest include the presentation of another will, to each devisee and the executor nominated in the other will whose place of residence is known, and to such other persons as the court may direct.
  2. All persons notified as provided by § 28-40-110 or by this section shall be deemed parties to the proceeding for all purposes.

History. Acts 1949, No. 140, § 54; A.S.A. 1947, § 62-2115.

Case Notes

Burden of Sustaining Contest.

When surviving son offered a will for probate, he had the burden of proving the genuineness of the signatures; he made such proof, and the will was admitted to probate. When other persons sought to contest the will, they had the burden of sustaining the contest on the alleged ground that the signatures to the will were a forgery. Ross v. Edwards, 231 Ark. 902, 333 S.W.2d 487 (1960).

28-40-115. Contest of will — Rights of persons acquiring interest in property prior to filing of objections.

  1. If, prior to the filing of an objection to the probate of a will, real or personal property or any security interest therein is acquired for value by a purchaser from, or a lender to, the personal representative of the estate or a distributee or devisee of the property by the terms of a will, the purchaser or lender shall take title free of rights of any interested person in the estate and incurs no personal liability to the estate or to any interested person whether or not the distribution was proper or supported by court order.
    1. This section protects a purchaser from, or lender to, a distributee, devisee, or personal representative who has executed a deed or security instrument to the purchaser or lender prior to the filing of objections to the will.
    2. To be protected under this provision, a purchaser or lender need not inquire whether a personal representative acted properly in making the distribution in kind, even if the personal representative and the distributee or devisee are the same person.
  2. Any properly recorded instruments conveying such property on which a state documentary fee is noted pursuant to §§ 26-60-101 — 26-60-103 and 26-60-105 — 26-60-112 shall be prima facie evidence that the transfer was made for value and shall not be adversely affected should a will be later set aside in the manner provided by law.

History. Acts 1949, No. 140, § 53; 1951, No. 255, § 4; 1967, No. 287, § 2; 1985, No. 1007, § 2; A.S.A. 1947, § 62-2114.

Research References

Ark. L. Rev.

Haught, 1988 Update to the Arkansas Probate System: An Overview of Recent Developments in Arkansas Probate Practice, 42 Ark. L. Rev. 631.

Case Notes

Jurisdiction.

Trial court had authority to consider a challenge to decedent's will subsequent to a hearing at which it orally announced its decision to admit a purported will to probate; subsection (a) of this section was not applicable because no written order was entered after the hearing and, thus, there was no order permitting a will to probate to set aside. Judkins v. Hoover, 351 Ark. 552, 95 S.W.3d 768 (2003), overruled in part, West v. Williams, 355 Ark. 148, 133 S.W.3d 388 (2003).

Cited: Negovanov v. Wensko, 248 Ark. 1109, 455 S.W.2d 929 (1970); Coleman v. Coleman, 257 Ark. 404, 520 S.W.2d 239 (1975); Jackson v. Braden, 290 Ark. 117, 717 S.W.2d 206 (1986); Carpenter v. Horace Mann Life Ins. Co., 21 Ark. App. 112, 730 S.W.2d 502 (1987).

28-40-116. Will subsequently presented for probate.

  1. If, after a petition for the probate of a will or for the appointment of a general personal representative has been filed and before that petition has been heard, a petition for the probate of a will of the decedent not theretofore presented for probate is filed, the court shall hear both petitions together and determine what instruments, if any, should be admitted to probate or whether the decedent died intestate.
  2. If, after a will has been admitted to probate or after letters of administration have been granted, a petition for the probate of a will of the decedent not theretofore presented for probate is filed, the court shall determine whether the former probate or the former grant of letters should be revoked and whether the other will should be admitted to probate or whether the decedent died intestate.
  3. No will shall be admitted to probate under the provisions of this section unless it is presented for probate before the court orders or approves final distribution of the estate.
  4. When a will is presented for probate under the provisions of this section, the proceedings shall be deemed a part of the proceedings for probate or for administration already initiated.
  5. If notice by publication has been given as provided in § 28-40-110 or in § 28-40-111, no further notice by publication is necessary unless ordered by the court. However, notice of the hearing shall be given to each heir and to each devisee named and the executor nominated in this or in any other will offered for or admitted to probate whose place of residence is known, and notice shall be given to such other persons as the court may direct.

History. Acts 1949, No. 140, § 55; A.S.A. 1947, § 62-2116.

Case Notes

Appeal.

Probate cases are tried de novo on appeal. Gilbert v. Gilbert, 47 Ark. App. 37, 883 S.W.2d 859 (1994).

Cited: Coleman v. Coleman, 257 Ark. 404, 520 S.W.2d 239 (1975); Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977).

28-40-117. Proof of will.

  1. An attested will shall be proved as follows:
    1. By the testimony of at least two (2) attesting witnesses, if living at known addresses within the continental United States and capable of testifying; or
      1. If only one (1) or neither of the attesting witnesses is living at a known address within the continental United States and capable of testifying, or if, after the exercise of reasonable diligence, the proponent of the will is unable to procure the testimony of two (2) attesting witnesses, in either event the will may be established by the testimony of at least two (2) credible disinterested witnesses.
      2. The witnesses shall prove the handwriting of the testator and such other facts and circumstances, including the handwriting of the attesting witnesses whose testimony is not available, as would be sufficient to prove a controverted issue in equity, together with the testimony of any attesting witness whose testimony is procurable with the exercise of due diligence.
  2. A holographic will shall be proved by the testimony of at least three (3) credible disinterested witnesses proving the handwriting and signature of the testator and such other facts and circumstances as would be sufficient to prove a controverted issue in equity.
  3. A will which has been lost or destroyed by accident or design of some person other than the testator shall be proved by evidence which would be competent and sufficient in a proceeding in equity for the establishment of the lost will. The will so established shall be set forth in the order establishing it.
  4. The provisions of this section as to the testimony of subscribing witnesses shall not exclude the production of other evidence at the hearing on the petition for probate, and the due execution of the will may be proved by such other evidence.

History. Acts 1949, No. 140, §§ 56, 57; A.S.A. 1947, §§ 62-2117, 62-2118.

Research References

Ark. L. Rev.

Proof of Wills, 9 Ark. L. Rev. 394.

Wills — Proof of Testamentary Intent in Holographic Codicils, 25 Ark. L. Rev. 376.

Wills — Validity of Signature for Holographic Wills, 28 Ark. L. Rev. 521.

Case Notes

Construction.

Subsections (a)-(c) of this section and subsection (d) of this section are not contradictory, but should be read together in determining admissible evidence in a suit to probate will. In re Altheimer's Estate, 221 Ark. 941, 256 S.W.2d 719 (1953).

Acknowledgment by Testator.

Once the signing of a will is proven by two attesting witnesses, and there is no suggestion of fraud or undue influence, there is a presumption that the testator declared to the attesting witnesses that the instrument was his will; and that he either signed in front of them or acknowledged to them his signature on the instrument; and that the attesting witnesses signed at the request of and in the presence of the testator. In re Estate of Sharp, 306 Ark. 268, 810 S.W.2d 952 (Ark. 1991).

Attorney as Attesting Witness.

An attorney who drafted a will and witnessed it, but who was not named in the will, was competent to testify as an attesting witness. Sullivant v. Sullivant, 236 Ark. 95, 364 S.W.2d 665 (1963).

Burden of Proof.

When surviving son offered a will for probate, he had the burden of proving the genuineness of the signatures; he made such proof, and the will was admitted to probate. When appellants sought to contest the will, they had the burden of sustaining the contest on the alleged ground that the signatures to the will were a forgery. Ross v. Edwards, 231 Ark. 902, 333 S.W.2d 487 (1960).

Evidence of Forgery.

Although testimony as to signature on a will was conflicting where enlarged photographs of the admitted signature of the decedent made it apparent that the signature on the will was a forgery, the court properly refused to admit the will to probate. Thomas v. Barnett, 228 Ark. 658, 310 S.W.2d 248 (1958).

Where 11 witnesses stated that they were familiar with the signature and handwriting of the deceased and expressed their opinion that a proffered will was written entirely in the handwriting of the deceased, but court-appointed expert declared the will a forgery, the court's holding that the will was forged was not against the preponderance of the evidence. Wilson v. Kemp, 7 Ark. App. 44, 644 S.W.2d 306 (1982).

Extrinsic Evidence.

Extrinsic evidence may be admitted when it is necessary to fortify the finding of existence of testamentary intent. Chambers v. Younes, 240 Ark. 428, 399 S.W.2d 655 (1966).

Holographic Wills.

A credible witness to a holographic will is one who is competent and who is worthy of belief. Sanders v. Abernathy, 221 Ark. 407, 253 S.W.2d 351 (1952).

A trial court erred in denying probate of a holographic will on the ground that evidence presented did not meet requirements necessary to establish holographic will where four renters from deceased and two banking officials testified that will was in handwriting of the deceased. Sanders v. Abernathy, 221 Ark. 407, 253 S.W.2d 351 (1952).

Members of a church were competent witnesses to establish holographic will benefiting the church where no gain from the will would inure to the members individually under the will. Barnard v. Methodist Church, 226 Ark. 144, 288 S.W.2d 595 (1956).

Lost or Destroyed Wills.

Before a court will establish a will as being lost or destroyed, it must be shown that the will was duly executed. Porter v. Sheffield, 212 Ark. 1015, 208 S.W.2d 999 (1948) (decision under prior law).

One Attesting Witness.

Where only one attesting witness to will can be produced, it is permissible to introduce testimony on the authenticity of the handwriting of other attesting witness. In re Altheimer's Estate, 221 Ark. 941, 256 S.W.2d 719 (1953).

Where a witness to a will testified that she witnessed the will at the request of the testator and in the presence of the other attesting witness who was then deceased, but whose signature was identified by his son and his widow, this testimony met the requirement of this section for the testimony of “credible disinterested witnesses” and thus the will was sustained as an attested will. Walpole v. Lewis, 254 Ark. 89, 492 S.W.2d 410 (1973).

The trial court erred in admitting a will to probate because the proponent failed to prove the will by either two attesting witnesses or two credible disinterested witnesses, and there was no showing that any diligence was exercised in procuring the testimony of one of the attesting witnesses. Carter v. Meek, 70 Ark. App. 447, 20 S.W.3d 417 (2000).

Proof of Execution.

Proper execution of a will to be probated could be proven by all or any one of the subscribing witnesses, or by only one witness who testified positively to the request of its execution and another witness did not recollect or denied some of the requests. Leister v. Chitwood, 216 Ark. 418, 225 S.W.2d 936 (1950) (decision under prior law).

The requirements outlined in subsection (a)(1) for proving an attested will by the testimony of two attesting witnesses were satisfied where (1) the two attesting witnesses were credible disinterested witnesses, (2) each witness testified that his or her signature was on the will as an attesting witnesses, (3) one witness was able to provide testimony regarding the circumstances surrounding the decedent coming into his office and asking him to draft the will and later a codicil, and he also testified that he and his secretary routinely acted as witnesses to wills prepared for his clients and that they would not sign the document until the testator had signed the will and requested that they attest it, and (4) the other witness testified that she would not have acted as a witness to the will or codicil if they had not been properly executed. Dillard v. Nix, 345 Ark. 215, 45 S.W.3d 359 (2001).

Proof of Signatures.

Where the testator and both attesting witnesses were dead, all the contestants had to do was to prove that any one of the three signatures was a forgery, in order to defeat probate, since a valid will, other than holographic, must have two witnesses. Ross v. Edwards, 231 Ark. 902, 333 S.W.2d 487 (1960).

Where only one attesting witness testified that the will contained the signature of the testator and the other witness, the widow of the second attesting witness, only identified her husband's signature as an attesting witness without offering testimony regarding the signature of the testator, the requirements of this section were not met, and the probate judge correctly refused to admit the will to probate. Children's Mercy Hosp. v. Chick, 262 Ark. 520, 559 S.W.2d 3 (1977).

Trial court did not clearly err in finding that a will was witnessed by the appropriate number of witnesses and with the required formalities under this section where the will and the proof of will were signed by three witnesses, even though only two were required, and where the two living witnesses testified, along with the will's notary. Although the testimony was conflicting, the appellate court left to the trial court the weight to be given to the testimony of the witnesses. Baxter v. Peters, 2009 Ark. App. 807, 373 S.W.3d 340 (2009).

Will Destroyed by Testator.

This section completely leaves out any procedure for establishing a will which has been effectively destroyed by the testator; it does provide for the method of proving a will which has been lost or destroyed by accident or design of some person other than the testator. The only logical reason for not making provisions for proof of a will destroyed intentionally by a testator, in accordance with § 28-25-109, is obvious; there is no will to prove — it has been legally and physically extinguished. Parker v. Mobley, 264 Ark. 805, 577 S.W.2d 583 (1979).

Cited: Pennington v. Pennington, 1 Ark. App. 311, 615 S.W.2d 391 (1981); Upton v. Upton, 26 Ark. App. 78, 759 S.W.2d 811 (1988); Earney v. Sharp, 312 Ark. 9, 846 S.W.2d 649 (1993).

28-40-118. Manner of taking testimony.

  1. If the probate of a will is not contested, the testimony of the required witnesses may be taken by affidavit, unless the court shall direct otherwise.
  2. If the will is contested, or on motion of an interested person made prior to admission of the will to probate, the will shall be established by testimony taken in the manner required for taking testimony in equity cases, or as the court may direct.

History. Acts 1949, No. 140, § 58; A.S.A. 1947, § 62-2119.

Case Notes

Cited: Baxter v. Peters, 2009 Ark. App. 807, 373 S.W.3d 340 (2009).

28-40-119. Conditions on which probate ordered and letters granted.

  1. On a petition for the probate of a will, if the court finds that the testator is dead, that the instrument offered for probate was executed in all respects according to law when the testator was competent to do so and acting without undue influence, fraud, or restraint, that the will was not revoked, and that the instrument is his or her last will, then the will shall be admitted to probate as the last will of the testator, but the order need not recite such findings.
  2. On the petition for the appointment of an executor or general administrator, the court shall determine whether the deceased died testate or intestate and shall grant letters accordingly or, on proper grounds, deny the petition.

History. Acts 1949, No. 140, § 59; A.S.A. 1947, § 62-2120.

Case Notes

Admission to Probate Granted.

Trial court was not clearly erroneous in holding that will was valid or in finding that testatrix intended to bequeath her property by a will instrument which contained additions and interlineations she dictated to bank officer, and which was executed by the testatrix after those additions and interlineations were made. Clark v. National Bank of Commerce, 304 Ark. 352, 802 S.W.2d 452 (1991).

Disposal of Probate Case.

Order which admitted will “conditionally,” reservation of issues involved in will contest, and conduct of parties belied assertion that order admitting will to probate disposed of probate case once and for all. Carpenter v. Horace Mann Life Ins. Co., 21 Ark. App. 112, 730 S.W.2d 502 (1987).

28-40-120. Probate of will of nonresident.

  1. When a will of a nonresident of this state, relative to property within this state, has been admitted to probate in another appropriate jurisdiction, an authenticated copy thereof, accompanied by an authenticated copy of the order admitting the will to probate, may be filed for probate in this state.
  2. When so filed, together with a petition for the admission of the will to probate in this state, the court shall:
    1. Presume, in the absence of evidence to the contrary, that the will was duly executed and proved and admitted to probate in the foreign jurisdiction; and
    2. Admit the will to probate if it appears from the copy and order that the will was executed and proved in the manner prescribed by:
      1. The law of the place of its execution;
      2. The law of the testator's domicile at the time of its execution; or
      3. The laws of this state.
  3. Unless the will is executed in accordance with § 28-25-103 or § 28-25-104, the petition for its probate shall state the time and place of its execution and the testator's domicile at the time of its execution and at the time of his or her death.
    1. Venue for the proceeding shall be governed by the provisions of § 28-40-102.
    2. Notice of the probation of the will shall be governed by the provisions of § 28-40-111.

History. Acts 1949, No. 140, § 60; 1967, No. 287, § 3; A.S.A. 1947, § 62-2121.

Case Notes

Change of Residence.

Where testator changed his residence and domicil after making his will, from Arkansas to Oklahoma, and at the time of his death was a resident of Oklahoma, the will could not be probated in the first instance in Arkansas, notwithstanding the assertion of Arkansas residence made in the will. McCraw v. Simpson, 203 Ark. 763, 158 S.W.2d 655 (1942) (decision under prior law).

Devise of Realty in Arkansas.

A will executed and admitted to probate outside the state of Arkansas is as valid to dispose of real estate situated in this state as if made and admitted to probate here. Apperson v. Bolton, 29 Ark. 418 (1874) (decision under prior law).

A will executed outside the state of Arkansas in conformity to the laws of the testator's domicil will not be a valid will of lands situated in this state unless made in accordance with the requirements of the laws of this state. Crossett Lumber Co. v. Files, 104 Ark. 600, 149 S.W. 908 (1912) (decision under prior law).

Fraud.

An order of a probate court of another state admitting a will to probate in that state may be attacked on ground it has been obtained by fraud. Dodd v. Holden, 205 Ark. 817, 171 S.W.2d 948 (1943) (decision under prior law).

Right to Contest.

Former Civil Code § 513(5) did not deprive a party interested in the will of a nonresident of the right to contest its probate on the ground of incapacity or undue influence. Selle v. Rapp, 143 Ark. 192, 220 S.W. 662, 13 A.L.R. 494 (1920) (decision under prior law).

Time Limit.

Section 28-40-103 which limits the period within which a will may be admitted to probate applies to a nonresident's will which has been admitted to probate in a foreign jurisdiction. Sims v. Schavey, 234 Ark. 166, 351 S.W.2d 145, 87 A.L.R.2d 718 (1961).

28-40-121. Finality of order — Conclusiveness of finding of death.

An order admitting a will to probate or for the appointment of a personal representative, if not contested or appealed from, shall be final, subject to the following exceptions:

  1. It may be reopened at any time prior to the order of final distribution for the purpose of admitting to probate a will not theretofore presented to the court;
  2. It may be vacated or modified for good cause as provided in § 28-1-115; and
    1. The finding of the fact of death shall be conclusive as to the alleged decedent only if the notice of the hearing on the petition for probate or for the appointment of a personal representative is sent by registered mail addressed to the alleged decedent at his or her last known residence address and when a search is ordered for the alleged decedent as provided in § 28-40-112, the court finds that the search was made.
    2. If notice is sent and search made, and the alleged decedent is not dead, he or she may nevertheless at any time recover the estate from the personal representative if it is in his or her hands, or he or she may recover the estate or its proceeds from the distributees, if either is in their hands.

History. Acts 1949, No. 140, § 61; A.S.A. 1947, § 62-2122.

Case Notes

In General.

A will determines the rights of the parties under it proprio vigora from the death of the testator. Its probate is necessary to fix the right of the executor to execute it, to point out the person authorized to act, and as a basis and prerequisite to letters testamentary, but is not essential to its validity. Rights under it are not lost by failure to probate, and to establish and protect them, the validity of a will may be shown in any court. Arrington v. McLemore, 33 Ark. 759 (1878) (decision under prior law).

Administrator Protected.

Where, relying upon the statutory presumption of the death of the owner of money, an administrator of his next of kin in good faith received it from a bailee, charged himself with it in his account as administrator, and expended part of it in discharging the debt of the estate before he learned that the owner was alive, the administrator will be protected to the extent of the amount so expended. Beam v. Copeland, 54 Ark. 70, 14 S.W. 1094 (1890) (decision under prior law).

Holographic Wills.

The probation of a holographic will cannot give it effect beyond that given to it by statute. Parker v. Hill, 85 Ark. 363, 108 S.W. 208 (1908) (decision under prior law).

Limitations or Laches.

A suit by an heir, presumed dead from absence, to recover money distributed by an administrator may be barred by limitations or laches. Hill v. Wade, 155 Ark. 490, 244 S.W. 743 (1922) (decision under prior law).

Unprobated Wills.

An unprobated will cannot be received in evidence as a muniment of title. Dodd v. Holden, 205 Ark. 817, 171 S.W.2d 948 (1943) (decision under prior law).

Cited: Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977).

28-40-122. Certificate of probate.

  1. When proved as provided in this subchapter, every will, if in the custody of the court, shall have endorsed thereon or annexed thereto a certificate by the clerk that the will has been probated.
  2. If for any reason a will is not in the custody of the court, the court shall find the contents thereof, and the order admitting the will to probate shall state the contents, and a certificate shall be annexed as provided in subsection (a) of this section.
  3. Every will certified as provided in this section, or the record thereof, or a duly certified transcript of the record, may be read in evidence in any court in this state without further proof.

History. Acts 1949, No. 140, § 62; A.S.A. 1947, § 62-2123.

Research References

Ark. L. Rev.

Documentary Evidence — Arkansas, 15 Ark. L. Rev. 79.

Case Notes

Proof of Forgery.

Where a will appeared on its face to have been executed in accordance with statutory requirements and was properly proved and probated, the burden was on the contestants claiming that the signatures of the testator and of the attesting witnesses were forgeries. Hamilton v. Hamilton, 178 Ark. 241, 10 S.W.2d 377 (1928) (decision under prior law).

28-40-123. Recording will in other counties.

The personal representative shall cause a certified copy of the will, with a certificate of probate annexed thereto, to be recorded in the office of the recorder in each county in this state other than the county of probate in which real property of the decedent is situated, the cost thereof to be an expense of the administration.

History. Acts 1949, No. 140, § 63; A.S.A. 1947, § 62-2124.

Subchapter 2 — Arkansas Ante-Mortem Probate Act of 1979

Research References

ALR.

Limitation of actions submission of will for probate. 2 A.L.R.4th 1315.

Homicide as precluding taking under will or by intestacy. 25 A.L.R.4th 787.

Impossibility of performance of condition precedent: effect on testamentary gift. 40 A.L.R.4th 193.

Authority of probate court to depart from statutory schedule fixing fees. 40 A.L.R.4th 1189.

Adopted children as subject to protection of statute regarding right of children pretermitted by will, or statute preventing disinheritance of child. 43 A.L.R.4th 947.

Fraud as extending statutory limitations period for contesting will or its probate. 48 A.L.R.4th 1094.

U. Ark. Little Rock L.J.

Jans, Survey of Decedents' Estates, 3 U. Ark. Little Rock L.J. 216.

28-40-201. Title.

This subchapter shall be known and may be cited as the “Arkansas Ante-Mortem Probate Act of 1979”.

History. Acts 1979, No. 194, § 1; A.S.A. 1947, § 62-2134.

Research References

Ark. L. Rev.

Leopold and Beyer, Ante-Mortem Probate: A Viable Alternative, 43 Ark. L. Rev. 131.

28-40-202. Action for declaratory judgment.

  1. Any person who executes a will disposing of all or part of an estate located in Arkansas may institute an action in the circuit court of the appropriate county of this state for a declaratory judgment establishing the validity of the will.
  2. All beneficiaries named in the will and all the testator's existing intestate successors shall be named parties to the action.
  3. For the purpose of this subchapter, the beneficiaries and intestate successors shall be deemed possessed of inchoate property rights.
  4. Service of process shall be as in other declaratory judgment actions.

History. Acts 1979, No. 194, §§ 2, 3; A.S.A. 1947, §§ 62-2135, 62-2136.

Research References

Ark. L. Rev.

Leopold and Beyer, Ante-Mortem Probate: A Viable Alternative, 43 Ark. L. Rev. 131.

28-40-203. Court findings — Effect.

  1. If the court finds that the will was properly executed, that the testator had the requisite testamentary capacity and freedom from undue influence at the time of execution, and that the will is otherwise valid, it shall declare the will valid and order it placed on file with the court.
  2. A finding of validity pursuant to this subchapter shall constitute an adjudication of probate. However, such validated wills may be modified or superseded by subsequently executed valid wills, codicils, and other testamentary instruments, whether or not validated pursuant to this subchapter.

History. Acts 1979, No. 194, § 4; A.S.A. 1947, § 62-2137.

Research References

Ark. L. Rev.

Leopold and Beyer, Ante-Mortem Probate: A Viable Alternative, 43 Ark. L. Rev. 131.

Subchapter 3 — Proving a Lost or Destroyed Will

Publisher's Notes. Revised Stat., ch. 157, § 52, provided that the provisions of the act relating to the proof and probate of wills, the jurisdiction of the court of probate and the clerk thereof, and the proceedings thereon should be applicable to wills made previous as well as subsequent to the time when the act took effect.

Revised Stat., ch. 157, § 54, provided that the provisions of the act should not be construed to impair the validity of the execution of any will heretofore made and proven or to affect the construction of any such will.

Research References

Am. Jur. 80 Am. Jur. 2d, Wills, § 934 et seq.

C.J.S. 95 C.J.S., Wills, § 510 et seq.

28-40-301. Circuit court jurisdiction.

Whenever any will shall be lost, or destroyed by accident or design, the circuit court shall have the same power to take proof of the execution of the will and to establish the same, as in cases of lost deeds.

History. Rev. Stat., ch. 157, § 48; C. & M. Dig., § 10542; Pope's Dig., § 14560; A.S.A. 1947, § 60-301.

Case Notes

In General.

Chancery courts have jurisdiction to establish lost or destroyed wills. Dudgeon v. Dudgeon, 119 Ark. 128, 177 S.W. 402 (1915).

Concurrent Jurisdiction.

Lost or destroyed wills are generally established by an action in chancery, but probate court has additional jurisdiction in matters of heirship, adoption, and, concurrent with jurisdiction of other courts, jurisdiction to restore lost wills and for the construction of wills when incident to the administration of an estate. Conkle v. Walker, 294 Ark. 222, 742 S.W.2d 892 (1988).

Generally speaking, lost or destroyed wills are established by an action in chancery under this section; however, § 28-1-104(a)(6) grants probate court jurisdiction (concurrent with the jurisdiction other courts) over the restoration of lost wills and for the construction of wills when incident to the administration of an estate. Gilbert v. Gilbert, 47 Ark. App. 37, 883 S.W.2d 859 (1994).

Cited: Bradway v. Thompson, 139 Ark. 542, 214 S.W. 27 (1919); Lumpkin v. Askins, 187 Ark. 1009, 63 S.W.2d 984 (1933).

28-40-302. Proving will.

No will of any testator shall be allowed to be proved as a lost or destroyed will unless:

  1. The provisions are clearly and distinctly proved by at least two (2) witnesses, a correct copy or draft being deemed equivalent to one (1) witness; and
  2. The will is:
    1. Proved to have been in existence at the time of the death of the testator; or
    2. Shown to have been fraudulently destroyed in the lifetime of the testator.

History. Rev. Stat., ch. 157, § 51; C. & M. Dig., § 10545; Pope's Dig., § 14563; A.S.A. 1947, § 60-304.

Research References

Ark. L. Notes.

Lonnie Beard, Questioning the practice of executing duplicate original wills, 2013 Ark. L. Notes 1030.

Case Notes

Authority of Court.

In order to establish lost will, probate court must follow dictates of this section. Conkle v. Walker, 294 Ark. 222, 742 S.W.2d 892 (1988).

Burden of Proof.

To establish lost or destroyed wills, it is not sufficient simply to establish the fact that there was a will; it is essential that the proof show its provisions. Dudgeon v. Dudgeon, 119 Ark. 128, 177 S.W. 402 (1915).

Where a will offered for probate was regular in form and met all the statutory requirements, including attestation of witnesses, the contestants had the burden to introduce testimony which clearly, positively, and satisfactorily established the contents of a subsequent will, and it was not sufficient to show that the will had been executed containing a revocation clause of former wills; they should have introduced testimony showing the entire contents of the will or all the material parts of it. Reed v. Johnson, 200 Ark. 1075, 143 S.W.2d 32 (1940).

The burden is not to overcome the presumption of revocation of a will by clear, satisfactory, and convincing evidence, since only a preponderance of the evidence is required. Garrett v. Butler, 229 Ark. 653, 317 S.W.2d 283 (1958).

Proponent of lost will has the burden of proving execution of will and its contents. One seeking to establish lost will must prove its execution and contents by strong, cogent, and convincing evidence, though he is not required to produce evidence sufficient to remove all reasonable doubt. Conkle v. Walker, 294 Ark. 222, 742 S.W.2d 892 (1988).

Circuit court did not err in finding that subdivision (2)(A) of this section did not require a second will to have physically existed at the time of the father's death, given case law stating that subdivision (2)(A) meant legal existence, not physical existence. Cunningham v. Dillard (In re Estate of Cunningham), 2019 Ark. App. 177, 574 S.W.3d 214 (2019).

Competency of Testimony.

Where the effect of the testimony of a witness testifying to the execution of a lost will is to make him the sole or principal beneficiary, a will cannot be established by his testimony. Allnut v. Wood, 176 Ark. 537, 3 S.W.2d 298 (1928).

Fraudulent Destruction.

Loss or destruction, without the testator's consent or knowledge, of a will deposited in a bank for safekeeping during the testator's lifetime amounted to fraudulent destruction of the will within this section. Rose v. Hunnicutt, 166 Ark. 134, 265 S.W. 651 (1924).

Lost Wills.

A lost will may be proved at a trial although it has never been reinstated as a lost record. Turley v. Evins, 109 Ark. 115, 158 S.W. 1080 (1913).

Until it is shown that a will has been duly executed, there can be no establishment of a lost will. Porter v. Sheffield, 212 Ark. 1015, 208 S.W.2d 999 (1948).

It was not necessary for the trial judge to determine what became of decedent's will; it was enough that he found that it was not revoked or cancelled by her. Thomas v. Thomas, 30 Ark. App. 152, 784 S.W.2d 173 (1990).

Evidence was insufficient to prove a lost will since the decedent's failure to revoke or destroy his will as testified to by the appellant did not constitute evidence that the will was in existence at the time of his death and there was no proof in the record that the will was fraudulently destroyed before the decedent died. Matheny v. Heirs of Oldfield, 72 Ark. App. 46, 32 S.W.3d 491 (2000).

“Lost will” was improperly admitted to probate; the fact that the decedent retained a copy of the lost will was improperly considered by the trial court in determining whether the presumption of revocation was rebutted and the executor named in the lost will did not otherwise meet his burden of establishing the lost will. Remington v. Roberson, 81 Ark. App. 36, 98 S.W.3d 44 (2003).

Court properly denied a petition by testator's brother to probate an Israeli will as a lost will where the brother failed to prove by strong, cogent, and convincing evidence that the testator executed the Israeli will; further, the testator's widow and a business associate testified that the signature on the Israeli will was not the testator's. Abdin v. Abdin, 94 Ark. App. 12, 223 S.W.3d 60 (2006).

Circuit court found that the statutory requirements were met and the estate rebutted the presumption of revocation; the testimony overcame the presumption, as there was ample evidence that decedent was determined her son would not inherit anything, plus she believed her estate planning was complete, and the admission of a copy of the will to probate was not found to be error. Whatley v. Estate of McDougal, 2013 Ark. App. 709, 430 S.W.3d 875 (2013).

Testimony supported a conclusion that the will was in existence at the time of the decedent's death, and it was not necessary for the circuit court to determine what happened to the decedent's original will; it was enough that the trial court found that the will was not revoked or cancelled by the decedent. Whatley v. Estate of McDougal, 2013 Ark. App. 709, 430 S.W.3d 875 (2013).

In a lost will case, there was no strong, cogent, or convincing evidence about the circumstances under which the purported will was produced—it may have been typewritten, handwritten, or printed from a computer. In the absence of proof of one of the necessary elements to prove a lost will, it could not be said that the circuit court erred in finding that the executrix of the decedent's estate failed to prove both the execution and contents of the will. Griffith v. Griffith, 2018 Ark. App. 122, 545 S.W.3d 212 (2018).

Photocopied Copy of Will.

In a proceeding to admit photocopied copy of a decedent's executed will as final will of the decedent under theory that the original will was lost or accidently destroyed, the testimony of the drafting attorney that he had caused a copy of the executed will to be made and kept the copy in his possession and the testimony of the attorney and both witnesses to the will as to how, when, and where the will was executed properly proved the will despite the argument that it was possible to transpose a witness' signature by photocopying, since there was no evidence of such transposition. Tucker v. Stacy, 272 Ark. 475, 616 S.W.2d 473 (1981).

Presumption of Destruction.

The presumption that the testator destroyed a will must be overcome before a lost will can be established. Porter v. Sheffield, 212 Ark. 1015, 208 S.W.2d 999 (1948).

Presumption of Revocation.

Where there is no direct or positive testimony showing that a will was in existence at time of a decedent's death or that it was fraudulently destroyed before his death, where it is admitted that the will cannot be found, the law presumes the revocation of the will; however, presumption may be overcome by proof. Garrett v. Butler, 229 Ark. 653, 317 S.W.2d 283 (1958).

Where in a will contest although the evidence was sufficient to prove that a will, a copy of which was introduced, was actually executed by the testator, the evidence was insufficient to rebut the presumption that a will in the possession of, or accessible to, the testator was revoked by the testator where the will could not be produced at his death, since there was no evidence offered to suggest that the will had been fraudulently destroyed, misplaced, or destroyed by accident. Wharton v. Moss, 267 Ark. 723, 594 S.W.2d 856 (Ct. App. 1979).

Cited: Parker v. Mobley, 264 Ark. 805, 577 S.W.2d 583 (1979).

28-40-303. Record of decree.

  1. Upon a lost or destroyed will's being established by the decree of a competent court, the decree shall be recorded by the probate clerk of the circuit court before which the will might have been proved if it had not been lost or destroyed.
  2. Letters testamentary or of administration, with the will annexed, shall be issued thereon by the clerk in the same manner as upon a will duly proved before him or her.

History. Rev. Stat., ch. 157, § 49; C. & M. Dig., § 10543; Pope's Dig., § 14561; A.S.A. 1947, § 60-302.

Case Notes

Cited: Middleton v. Middleton, 188 Ark. 1022, 68 S.W.2d 1003 (1934).

28-40-304. Restraint of administrator.

If, before or during the pendency of an application to prove a lost or destroyed will, letters of administration are granted on the estate of the testator, the court to which the application shall be made shall have authority to restrain the administrator so appointed from any act or proceedings which would be injurious to the legatees or devisees claiming under the lost or destroyed will.

History. Rev. Stat., ch. 157, § 50; C. & M. Dig., § 10544; Pope's Dig., § 14562; A.S.A. 1947 § 60-303.

Chapter 41 Distribution Without Administration

Publisher's Notes. Acts 1983, No. 133, § 2, provided that the provisions of the act shall be applicable to the estates of persons who die subsequent to the effective date of the act.

Effective Dates. Acts 1951, No. 255, § 15: Mar. 19, 1951. Emergency clause provided: “The General Assembly has ascertained that there is a likelihood of misconstruction of certain provisions of the Probate Code, and that an urgent need exists for clarification thereof and certain additions thereto in order that the law relating to proceedings in probate may be construed and administered in a uniform manner throughout the State, in accordance with the legislative intent; for the accomplishment of which purposes this Act is adopted. An emergency is therefore declared to exist, and this Act, being necessary for the immediate preservation of the public peace, welfare and safety, shall take effect and be in force from and after its passage and approval.”

Acts 1975, No. 620, § 16: July 1, 1975.

Acts 1981, No. 714, § 75: Mar. 25, 1981. Emergency clause provided: “It has been found and is declared by the General Assembly of Arkansas that existing law relating to such matters as homestead, dower, curtesy, statutory allowances payable from a decedent's estate, and the right of a surviving spouse to take against the will of a decedent, do not in all circumstances provide for equal treatment between the sexes, that the constitutionality of such existing law has been drawn into question by decisions of the United States Supreme Court and the Arkansas Supreme Court, and that there is an urgent need to insure that the law provides equality in the property rights and interests of married persons. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from the date of its approval.”

Acts 1983, No. 133, § 4: Feb. 10, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that present law requires all probate estates with a value in excess of $15,000 to be distributed by a personal representative appointed by the court; that the $15,000 maximum is obsolete and should be immediately increased; and that this Act is immediately necessary to accomplish the same. Therefore, an emergency is hereby declared to exist and this Act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 2001, No. 1229, § 2: Apr. 2, 2001. Emergency clause provided: “It is hereby found and determined by the Eighty-third General Assembly that Act 992 of 1999 amended Arkansas Code 28-41-101 to provide that if a small estate contains real property the distributee must include in the notice of the decedent's death a statement requiring all persons having claims against the estate to exhibit them within three (3) months, instead of six (6) months, after the date of the first publication of the notice; that Arkansas Code 28-41-102 also contained the six (6) month provision for filing claims and that it was inadvertently not changed to three (3) months; that this act cures the same by making 28-41-102 consistent with 28-41-101; and that this act should become effective as soon as possible in order to eliminate any confusion regarding whether the statute of limitations involved in those two statutes is six (6) months or three (3) months. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Research References

Ark. L. Rev.

Acts 1949 General Assembly — Act 140 The Probate Code, 3 Ark. L. Rev. 375.

Probate Code Amendments, 5 Ark. L. Rev. 377.

28-41-101. Collection of small estates by distributee.

  1. The distributee of an estate may collect and distribute the assets of an estate under this section without the appointment of a personal representative when:
    1. No petition for the appointment of a personal representative is pending or has been granted;
    2. Forty-five (45) days have elapsed since the death of the decedent;
      1. The value, less encumbrances, of all property owned by the decedent at the time of death does not exceed one hundred thousand dollars ($100,000).
      2. When calculating the value of all property owned by the decedent under subdivision (a)(3)(A) of this section, the value of the decedent's homestead and the value of any statutory allowances for the benefit of a spouse or minor children, if any, shall be excluded;
    3. One (1) or more of the distributees files an affidavit with the probate clerk of the circuit court of the county of proper venue for administration stating:
      1. That there are no unpaid claims or demands against the decedent or his or her estate, that the Department of Human Services furnished no federal or state benefits to the decedent, or, that if such benefits have been furnished, the department has been reimbursed in accordance with state and federal laws and regulations;
      2. An itemized description and valuation of the personal property and a legal description and valuation of any real property of the decedent, including the homestead;
      3. The names and addresses of persons having possession of the personal property and the names and addresses of any persons possessing or residing on any real property of the decedent; and
      4. The names, addresses, and relationship to the decedent of the persons entitled to and who will receive the property; and
    4. A copy of the affidavit certified by the clerk is furnished to any person owing any money, having custody of any property, or acting as registrar or transfer agent of any evidence of interest, indebtedness, property, or right.
      1. The clerk shall file the affidavit, assign it a number, and index it as required by § 28-1-108(1).
      2. He or she shall make a charge of twenty-five dollars ($25.00) for filing the affidavit and five dollars ($5.00) for each certified copy.
      3. An order of the court or other proceeding is not necessary.
      4. An additional fee shall not be charged if a will is attached to the affidavit.
      1. If an estate collected under this section contains real property, in order to allow for claims against the estate to be presented, the distributee shall cause a notice of the decedent's death and the filing of an affidavit for the collection of his or her estate to be published within thirty (30) days after the affidavit has been filed.
      2. The notice shall be in substantially the following form:
      3. Publication of the notice shall be as provided in §§ 28-1-112(b)(4) and 28-40-111(a)(4).

“In the Circuit Court of County, Arkansas

Probate Division

In the Matter of the Estate of , Deceased. No.

Name of decedent

Last known address

Date of death

On , an affidavit for collection of small estate by distributee was filed with respect to the estate of , deceased, with the clerk of the probate division of the circuit court of County, Arkansas, under Ark. Code Ann. § 28-41-101.

All persons having claims against the estate must exhibit them, properly verified, to the distributee or his or her attorney within three (3) months from the date of the first publication of this notice or they shall be forever barred and precluded from any benefit of the estate.

The name, mailing address, and telephone number of the distributee or distributee's attorney is:

This notice first published , 20...”.

History. Acts 1949, No. 140, § 66; 1951, No. 255, § 5; 1967, No. 287, § 4; 1975, No. 620, § 6; 1979, No. 641, § 1; 1981, No. 714, § 67; 1983, No. 133, § 1; A.S.A. 1947, § 62-2127; Acts 1987, No. 163, § 1; 1989, No. 960, § 1; 1993, No. 415, § 3; 1993, No. 687, § 1; 1999, No. 992, § 1; 2001, No. 1809, § 8; 2003, No. 1185, § 278; 2003, No. 1765, § 38; 2005, No. 899, § 1; 2011, No. 289, § 1; 2011, No. 761, § 1; 2013, No. 230, § 1; 2015, No. 526, § 1; 2017, No. 649, § 1.

Publisher's Notes. Acts 2015, No. 526 became law without the Governor's signature.

Amendments. The 2011 amendment by No. 289 subdivided former (b)(1); and substituted “five dollars ($5.00)” for “three dollars ($3.00)” in (b)(1)(B).

The 2011 amendment by No. 761, in (b)(2)(A), substituted “the distributee shall cause” for “may cause, promptly after the affidavit has been filed” and added “within thirty (30) days after the affidavit has been filed.”

The 2013 amendment rewrote (b)(2)(B) and made stylistic changes.

The 2015 amendment deleted “The legal description of the real property listed in the affidavit is as follows” in (b)(2)(B).

The 2017 amendment substituted “may collect and distribute the assets of an estate under this section” for “shall be entitled thereto” in the introductory language of (a); rewrote (a)(3) and the introductory language of (a)(4); and, in (a)(5), substituted “A copy of the affidavit certified by the clerk is furnished” for “There is furnished” and deleted “a copy of the affidavit certified by the clerk” at the end.

Research References

U. Ark. Little Rock L.J.

Survey — Probate, 10 U. Ark. Little Rock L.J. 599.

Survey of Legislation, 2001 Arkansas General Assembly, Probate Law, 24 U. Ark. Little Rock L. Rev. 631.

Case Notes

Applicability.

Circuit court erred in granting the declaratory judgment in favor of the heirs and ordering the decedent's land to be sold and the proceeds divided accordingly, where the circuit court's ruling was based on an erroneous interpretation and application of § 28-40-104; because the small-estate procedure was excepted from the requirements of § 28-40-104 and this section, the issue of whether the beneficiary commenced a probate proceeding was irrelevant. Osborn v. Bryant, 2009 Ark. 358, 324 S.W.3d 687 (2009).

Notice.

Heir's failure to act in substantial compliance with the Probate Code required the court to hold that her disposition of the property was void; she was never appointed as administrator, the decedent's will was never admitted or declared valid, and appellants never received notice of the collection of the small estate, and the administrator's deed was void. Bryant v. Osborn, 2014 Ark. 143 (2014).

Notice took the form recommended by one statute, and the essence of the notice was that one heir was opening the decedent's estate, but the actual probate proceeding she pursued was for the collection of a small estate, and the notice required for that is found in another statute, and appellants testified that they did not receive personal notice, and this testimony was not actually disputed; the trial court clearly erred when it found that the heir satisfied the statutory procedures for collection of a small estate. Bryant v. Osborn, 2014 Ark. 143 (2014).

Relief.

Alleged granddaughter of a decedent was not entitled to relief under Ark. R. Civ. P. 60 from the declaration at the request of the decedent's niece that, inter alia, the alleged granddaughter was not an heir to the estate, as the alleged granddaughter had merely reargued the merits of the case. Cotton v. Robinson, 2015 Ark. App. 451 (2015).

Cited: Woolsey v. Nationwide Ins. Co., 697 F. Supp. 1053 (W.D. Ark. 1988); Woolsey v. Nationwide Ins. Co., 884 F.2d 381 (8th Cir. 1989).

28-41-102. Payment, transfers, or deliveries pursuant to affidavit.

  1. The person making payment, transfer, or delivery pursuant to the affidavit described in § 28-41-101 shall be released to the same extent as if made to a personal representative of the decedent, and he or she shall not be required to see to the application thereof or to inquire into the truth of any statement in the affidavit.
    1. The distributee to whom payment, transfer, or delivery is made, as trustee, shall be answerable to any person having a prior right and shall be accountable to any personal representative thereafter appointed.
    2. However, if notice to creditors of the decedent's death and the collection of his or her estate is published as provided by § 28-41-101, all claims as to real property within the estate, in any event, shall be forever barred at the end of three (3) months after the date of the first publication of the first notice.
    3. Nothing in this section shall affect or prevent any action or proceeding to enforce any mortgage, pledge, or other lien arising under contract or statute upon the property of the estate.
  2. If the person to whom the affidavit is delivered refuses to pay, transfer, or deliver the property as provided in this section, the property may be recovered or delivery compelled in an action brought in a court of competent jurisdiction for such a purpose by or in behalf of the distributee entitled to the property upon proof of the facts required to be stated in the affidavit.
  3. If the distributee who is entitled to the transfer or delivery of real property complies with the affidavit and notice requirements under § 28-41-101, the three-month period required under § 28-41-101 lapses, and a claim is not presented to the distributee within the three-month period or all claims against the estate that were presented to the distributee within the three-month period are satisfied, then the distributee shall:
    1. Be authorized to issue to himself or herself a deed of distribution for the real property of the decedent as if made by a personal representative of the decedent; and
    2. Deliver notice of the transfer of ownership to the county assessor of each county where the real property is located.
    1. If a claim against an estate is presented to the distributee of the estate within three (3) months from the date of the first publication of the notice required under § 28-41-101, then the distributee shall file a petition for the administration of the estate in accordance with § 28-40-101 et seq.
      1. A distributee is not required to comply with subdivision (e)(1) of this section if the claim against the estate is satisfied without using property owned by the decedent at the time of death.
      2. If a claim against the estate is satisfied in the manner described under subdivision (e)(2)(A) of this section, the claimant shall present to the distributee an acknowledgement of the satisfied claim.
      1. If a petition for the administration of an estate is filed as required under subdivision (e)(1) of this section, then a new notice shall be published in accordance with § 28-40-111.
      2. The publication of notice filed by a distributee in accordance with § 28-41-101 is insufficient notice with regard to a petition for the administration of an estate filed as required under this subsection.
      1. The distributee shall pay a new filing fee when a petition for the administration of an estate is filed as required under this subsection.
      2. A distributee is not entitled to a credit or refund of the fee paid to file the affidavit of small estate required under § 28-41-101.

History. Acts 1949, No. 140, § 67; A.S.A. 1947, § 62-2128; Acts 1993, No. 687, § 2; 2001, No. 1229, § 1; 2011, No. 761, § 2; 2017, No. 1021, §§ 1, 2.

Amendments. The 2011 amendment subdivided and rewrote (d).

The 2017 amendment rewrote the introductory language of (d); and added (e).

Case Notes

Cited: Woolsey v. Nationwide Ins. Co., 697 F. Supp. 1053 (W.D. Ark. 1988).

28-41-103. Petition and order for no administration.

  1. Either with or without administration, if the court shall determine upon petition of an interested person that the personal property owned by a decedent at the time of his or her death does not exceed that to which the surviving spouse, if any, or minor children, if any, are by law entitled free of debt, as dower or curtesy and statutory allowances, then the court may enter an order vesting the entire estate in the surviving spouse and minor children, or the surviving spouse or minor children.
  2. The statutory allowances payable to or for the benefit of the minor children of the decedent may be paid to the surviving parent without the interposition of a guardian if the surviving parent has custody of the minor children.
  3. The petition may be granted without notice or upon such notice as the court may direct.
    1. The order shall specifically describe the property vested thereby.
    2. The order, to the extent of the property specifically described in the order, until revoked, shall constitute sufficient legal authority to all persons owing any money, having custody of any property, or acting as registrar or transfer agent of any evidence of interest, indebtedness, property, or right belonging to the decedent and to persons purchasing or otherwise dealing with the property, for payment or transfer to the persons described in the order as entitled to receive the property.

History. Acts 1949, No. 140, § 68; A.S.A. 1947, § 62-2129.

28-41-104. Proceedings to revoke order.

At any time within one (1) year after the making of an order as provided in § 28-41-103, the court, either for good cause shown upon petition of an interested person or upon its own motion, may set the order aside.

History. Acts 1949, No. 140, § 69; A.S.A. 1947, § 62-2130.

Chapter 42 Ancillary Administration

Research References

Am. Jur. 31 Am. Jur. 2d, Exec. & Ad., § 645 et seq.

Ark. L. Rev.

Acts 1949 General Assembly — Act 140 The Probate Code, 3 Ark. L. Rev. 375.

C.J.S. 34 C.J.S., Exec. & Ad., § 916 et seq.

28-42-101. General law to apply.

Except when special provision is made otherwise, the law and procedure relating to the administration of estates of resident decedents shall apply to the ancillary administration of estates of nonresident decedents.

History. Acts 1949, No. 140, § 187; A.S.A. 1947, § 62-3109.

Case Notes

Applicability.

Under this section, a decedent's holographic will, executed during his residency in Alberta, Canada, was subject to the laws of Arkansas in the ancillary probate proceedings instituted there. Craig v. Carrigo, 353 Ark. 761, 121 S.W.3d 154 (2003).

Where the Arkansas trial court made no finding regarding the solvency of the decedent's estate, it was improper for the trial court to grant summary judgment on the Tennessee creditors' claims against the estate. There was no evidence to indicate that the creditors properly presented their claims in the ancillary action pursuant to this section. Ellingsen v. King, 2009 Ark. App. 655 (2009).

Cited: Norton v. Luttrell, 99 Ark. App. 109, 257 S.W.3d 580 (2007).

28-42-102. Application for ancillary letters.

    1. A foreign personal representative, upon the filing of an authenticated copy of his or her domiciliary letters with the circuit court of the county of proper venue, may be issued letters in this state, notwithstanding that the personal representative is a nonresident of this state.
    2. A corporate foreign personal representative need not otherwise qualify as a corporation to do business under the general corporation laws of this state to authorize it to act as ancillary personal representative in the particular estate if it complies with the provisions of §§ 28-42-104 and 28-42-105.
  1. Upon application by a foreign personal representative for the issuance of ancillary letters, preference shall be given to such an applicant, unless the court finds that the appointment will not be for the best interest of the estate. If the court so finds, the court may order the issuance of ancillary letters to any person eligible under the provisions of § 28-48-101.
  2. An interested person may apply for issuance of ancillary letters to a qualified person other than the foreign personal representative. In that event, the applicant, in the manner directed or approved by the court, shall give notice of the application to the foreign personal representative, if the foreign personal representative's name and address are known, and to the court which appointed him or her, if the court is known. If, at the time of filing the application, the name and address of the foreign representative or the court which appointed him or her are not known, the notice shall be given as soon thereafter, either before or after the issuance of letters, as the facts pertaining thereto become known.

History. Acts 1949, No. 140, § 179; A.S.A. 1947, § 62-3101.

Research References

Ark. L. Rev.

Notices Under the Probate Code, 8 Ark. L. Rev. 324.

Case Notes

Appointment Discretionary.

The refusal of a court to appoint a Texas domiciliary administrator as ancillary administrator was not an abuse of discretion where all of the assets of the estate, with the exception of an apparent small amount of personal property in Texas, were located in Arkansas, and that property would likely have to be sold for the payment of debts. Phillips v. Sherrod Estate, 248 Ark. 605, 453 S.W.2d 60 (1970).

Evidence that the bulk of decedent's property was located in Perry County, Arkansas, which would probably have to be sold to pay decedent's debts, and that the creditors of decedent lived in Perry County was sufficient to sustain a finding by the probate court that it was not in the best interest of the estate to appoint a Texas administrator located two hundred miles away in Texarkana as ancillary administrator. Phillips v. Sherrod Estate, 248 Ark. 605, 453 S.W.2d 60 (1970).

28-42-103. Ancillary personal representative — Bond.

An ancillary personal representative shall give bond as required by § 28-48-201. However, if he or she is a resident of this state, the bond may be reduced or dispensed with in accordance with § 28-48-206.

History. Acts 1949, No. 140, § 180; A.S.A. 1947, § 62-3102.

Case Notes

Failure to Obtain Bond.

Estate administrator's amended complaint for the wrongful conversion of timber, brought on behalf of the estate, was time-barred under § 16-56-105(4) and (6), the three-year statute of limitations for trespass and conversion, and § 16-56-108, the two-year statute of limitations applicable to penal statutes where the penalty goes to the person suing, which included claims brought pursuant to § 18-60-102. It was also barred because the administrator failed to meet the bond requirement of this section. Travis Lumber Co. v. Deichman, 2009 Ark. 299, 319 S.W.3d 239 (2009).

28-42-104. Designation of agent.

Prior to the granting of ancillary letters to a nonresident, the nonresident ancillary personal representative shall comply with the provisions of § 28-48-101(b)(6) concerning designation of an agent to accept service of process.

History. Acts 1949, No. 140, § 181; A.S.A. 1947, § 62-3103.

Research References

Ark. L. Rev.

Notices Under the Probate Code, 8 Ark. L. Rev. 324.

28-42-105. Substitution of foreign for local representative.

    1. If any other person has been appointed local personal representative, the foreign personal representative, not later than twenty (20) days after the dispatch of notice to him or her under § 28-42-102, unless this period is extended for cause by the court, may apply for revocation of the appointment and for granting of ancillary letters to himself or herself.
    2. Notice of the hearing on the application shall be given to the local personal representative.
    1. Upon the finding that the action is for the best interest of the estate, the court may revoke the letters of the local personal representative and grant the application of the foreign personal representative.
    2. After the application is granted, the local personal representative shall deliver to the foreign personal representative all assets and records of the estate in his or her possession and shall account to the foreign personal representative and to the court.
    3. The hearing on the account may be held immediately, or upon such notice as the court may direct.
    4. Upon compliance with the court's direction, the local personal representative and his or her sureties shall be discharged.
    1. Upon qualification, the foreign personal representative shall be substituted in all actions and proceedings brought by or against the local personal representative in his or her representative capacity and shall be entitled to all the rights and be subject to all the burden arising out of the uncompleted administration in all respects as if it had been continued by the local personal representative.
    2. If the local personal representative has served or has been served with any process or notice, no further service or notice shall be necessary, nor shall the time within which any steps may or must be taken be changed, unless the court in which the action or proceedings are pending so orders.

History. Acts 1949, No. 140, § 182; A.S.A. 1947, § 62-3104.

28-42-106. Removal of assets to domiciliary jurisdiction.

  1. Petition. Prior to the final disposition of the ancillary estate under § 28-42-109 and upon giving such notice as the court may direct, the foreign personal representative may apply for leave to remove all or any part of the assets from this state to the domiciliary jurisdiction for the purpose of administration and distribution.
  2. Order.
    1. Before granting the petition, the court shall inquire into the sufficiency of the bond given pursuant to the provisions of § 28-42-103 and shall direct the furnishing of an additional bond if required for the protection of the estate or interested persons.
    2. The court, in its discretion, may grant, deny, or postpone action on the petition.
    3. The granting of the petition shall not terminate the ancillary administration.

History. Acts 1949, No. 140, § 183; A.S.A. 1947, § 62-3105.

28-42-107. Payment of claims generally.

An ancillary personal representative may pay a claim against the estate only if it has been presented and allowed in the manner and within the time required to establish a claim against an estate of domiciliary administration in this state.

History. Acts 1949, No. 140, § 184; A.S.A. 1947, § 62-3106.

Cross References. Claims against estates, § 28-50-101 et seq.

Case Notes

Illustrative Cases.

Where the Arkansas trial court made no finding regarding the solvency of the decedent's estate, it was improper for the trial court to grant summary judgment on the Tennessee creditors' claims against the estate. There was no evidence to indicate that the creditors properly presented their claims in the ancillary action in the manner required by Arkansas law and within the time permitted by this section. Ellingsen v. King, 2009 Ark. App. 655 (2009).

28-42-108. Payment of claims — Insolvent estates.

  1. Equality Subject to Preferences and Security.
    1. If the estate, either in this state or as a whole, is insolvent, it shall be disposed of so that, as far as possible, each creditor whose claim has been allowed, either in this state or elsewhere, shall receive an equal proportion of his or her claim, subject to preferences and priorities and to any security which a creditor has as to particular assets.
    2. If a preference or priority is allowed in another jurisdiction but not in this state, the creditor so benefited shall receive dividends from local assets only upon the balance of his or her claim after deducting the amount of the benefit.
    3. The validity and effect of any security held in this state shall be determined by the law of this state, but a secured creditor who has not released or surrendered his or her security shall be entitled only to a proportion computed upon the balance due after the value of all security not exempt from the claims of unsecured creditors is determined and credited upon the claim secured by it.
  2. Procedure.
    1. In case of insolvency and if local assets permit, each claim allowed in this state shall be paid its proportion, and any balance of assets shall be disposed of in accordance with § 28-42-109.
    2. If local assets are not sufficient to pay all claims allowed in this state the full amount to which they are entitled under this section, local assets shall be marshaled so that each claim allowed in this state shall be paid its proportion as far as possible, after taking into account all dividends on claims allowed in this state from assets in other jurisdictions.

History. Acts 1949, No. 140, § 185; A.S.A. 1947, § 62-3107.

Case Notes

Solvency.

Where the Arkansas trial court made no finding regarding the solvency of the decedent's estate, it was improper for the trial court to grant summary judgment on the Tennessee creditors' claims against the estate. In accordance with this section, it was necessary to determine whether the estate was solvent before determining whether certain creditors' claims would be allowed. Ellingsen v. King, 2009 Ark. App. 655 (2009).

28-42-109. Transfer of residue to domiciliary personal representative.

    1. Any movable assets remaining in the hands of the ancillary personal representative after the payment of all claims allowed in this state may by the court be ordered transferred to the personal representative in the domiciliary jurisdiction.
    2. This transfer may be conditioned upon satisfactory evidence being furnished to the court that the domiciliary personal representative has given bond sufficient for the protection of the estate and persons interested in the estate with respect to the property so transferred.
  1. Upon good cause shown, the court may order the sale of local assets by the ancillary personal representative for the purpose of transmitting the proceeds to the domiciliary personal representative.

History. Acts 1949, No. 140, § 186; A.S.A. 1947, § 62-3108.

28-42-110. Payment of debt and delivery of property to domiciliary foreign personal representative.

  1. At any time after the expiration of sixty (60) days from the death of a nonresident decedent, any person indebted to the estate of the nonresident decedent or having possession or control of personal property or of an instrument evidencing a debt, obligation, stock, or chose in action belonging to the estate of the nonresident decedent may pay the debt, deliver the personal property, or deliver the instrument evidencing the debt, obligation, stock, or chose in action to the domiciliary foreign personal representative of the nonresident decedent upon being presented with proof of the representative's appointment and an affidavit made by or on behalf of the representative stating:
    1. The date of the death of the nonresident decedent;
    2. That no local administration, or application or petition therefor, is pending in this state; and
    3. That the domiciliary foreign personal representative is entitled to payment or delivery.
  2. Payment or delivery made in good faith on the basis of the proof of authority and affidavit releases the debtor or person having possession of the personal property to the same extent as if payment or delivery had been made to a local personal representative.
  3. Payment or delivery under subsection (a) of this section may not be made if a resident creditor of the nonresident decedent has notified the debtor of the nonresident decedent or the person having possession of the personal property belonging to the nonresident decedent that the debt should not be paid nor the property delivered to the domiciliary foreign personal representative.

History. Acts 1981, No. 370, § 1; A.S.A. 1947, § 62-3110.

Research References

Ark. L. Rev.

Leflar, Conflict of Laws: Arkansas, 1978-82, 36 Ark. L. Rev. 191.

U. Ark. Little Rock L.J.

Legislative Survey, Decedents' Estates, 4 U. Ark. Little Rock L.J. 591.

28-42-111. Jurisdiction over foreign personal representative.

  1. A foreign personal representative submits himself or herself to the jurisdiction of the courts of this state by:
    1. Receiving payment of money, or taking delivery of personal property under § 28-42-110; or
    2. Doing any act as a personal representative in this state which would have given the state jurisdiction over him or her as an individual.
  2. Jurisdiction under subdivision (a)(1) of this section shall be limited to the money or value of personal property collected.

History. Acts 1981, No. 370, § 2; A.S.A. 1947, § 62-3111.

Research References

Ark. L. Rev.

Leflar, Conflict of Laws: Arkansas, 1978-82, 36 Ark. L. Rev. 191.

U. Ark. Little Rock L.J.

Legislative Survey, Decedents' Estates, 4 U. Ark. Little Rock L.J. 591.

Chapters 43-47 [Reserved.]

[Reserved]

Chapter 48 Personal Representatives

Research References

ALR.

Enforceability of contractual right, in which fiduciary has interest, to purchase property of estate or trust. 6 A.L.R.4th 786.

Who is resident within meaning of statute prohibiting appointment of nonresident executor or administrator. 9 A.L.R.4th 1223.

Adverse interest or position as disqualification for appointment of administrator, executor, or other personal representative. 11 A.L.R.4th 638.

Attorney's delay in handling decedent's estate as ground for disciplinary action. 21 A.L.R.4th 75.

Ark. L. Rev.

Acts 1949 General Assembly—Act 140 The Probate Code, 3 Ark. L. Rev. 375.

Subchapter 1 — General Provisions

Effective Dates. Acts 1957, No. 297, § 4: Mar. 27, 1957. Emergency clause provided: “The General Assembly has ascertained that there are now pending in this State a great number of estates of deceased persons and that many more such cases will arise annually in the various counties of this State, and that an urgent need exists for a legislative establishment of a definite and uniform schedule of legal fees to be changed as expenses of such estates to assist the Probate Judges of the State and for the guidance of the personal representatives and attorneys, and for the information of the heirs and beneficiaries of estates of decedents, for the accomplishment of which this Act is adopted. An emergency is, therefore, declared to exist, and this Act, being necessary for the immediate preservation of the public peace, welfare and safety, shall take effect and be in force from and after its passage and approval.”

Acts 1975, No. 620, § 16: July 1, 1975.

Acts 2015, No. 844, § 2: Jan. 1, 2016.

Research References

ALR.

Delay of executor or administrator in filing inventory, account, or other report, or in completing administration and distribution of estate, as ground for removal. 33 A.L.R.4th 708.

Am. Jur. 31 Am. Jur. 2d, Exec. & Ad., § 42 et seq.

C.J.S. 33 C.J.S., Exec. & Ad., § 17 et seq.

28-48-101. Persons entitled to domiciliary letters.

  1. Domiciliary letters testamentary or of general administration may be granted to one (1) or more of the natural or corporate persons mentioned in this section who are not disqualified, in the following order of priority:
    1. To the executor or executors nominated in the will;
    2. To the surviving spouse, or his or her nominee, upon petition filed during a period of thirty (30) days after the death of the decedent;
    3. To one (1) or more of the persons entitled to a distributive share of the estate, or his or her nominee, as the court in its discretion may determine, if application for letters is made within forty (40) days after the death of the decedent, in case there is a surviving spouse and, if no surviving spouse, within thirty (30) days after the death of the decedent; and
    4. To any other qualified person.
  2. A person is not qualified to serve as domiciliary personal representative if the person is:
    1. Under eighteen (18) years of age;
    2. Of unsound mind;
    3. A convicted and unpardoned felon, either under the laws of the United States or of any state or territory of the United States;
    4. A corporation not authorized to act as fiduciary in this state;
    5. A person whom the court finds unsuitable; or
      1. A natural person who is a nonresident of this state, unless he or she shall have appointed the clerk of the court in which the proceedings are pending, and the clerk's successors in office, or some person residing in the county of probate and approved by the court, as agent to accept service of process and notice in all actions and proceedings with respect to the estate.
      2. If a person other than the clerk who has been appointed process agent dies, becomes incompetent, or removes from the county, the clerk and his or her successors in office shall become the process agent.
      3. The appointment or agency may be revoked only upon the appointment of a qualified substitute agent.
      4. Upon the service of any process or notice on the agent, he or she shall immediately transmit the process or notice to the personal representative by registered or certified mail, requesting a return receipt.

History. Acts 1949, No. 140, § 70; 1975, No. 620, § 7; A.S.A. 1947, § 62-2201; Acts 2015, No. 844, § 1.

Amendments. The 2015 amendment, in the introductory language of (b), substituted “A person is not” for “No person is” and “if the person” for “who”; and substituted “eighteen (18)” for “twenty-one (21)” in (b)(1).

Research References

Ark. L. Rev.

Notices Under the Probate Code, 8 Ark. L. Rev. 324.

Case Notes

Absence in Military Service.

A chancery court's refusal to remove testamentary trustee on ground of trustee's absence in the military service, where it appeared he was not neglecting the trust estate, was not an abuse of discretion. Blumenstiel v. Morris, 207 Ark. 244, 180 S.W.2d 107 (1944) (decision under prior law).

Discretion of Court.

This section does not make it compulsory on a court to make an appointment in the order of priority mentioned, and for sufficient cause and in unusual circumstances, as where the applicant of that class is not qualified or, in the court's opinion, will not best manage and improve the estate, the court may refuse an appointment though the applicant is otherwise qualified. Burnett v. United States Fid. & Guar. Co., 228 Ark. 857, 310 S.W.2d 806 (1958); Knight v. Worthen Bank & Trust Co., 233 Ark. 465, 345 S.W.2d 361 (1961).

Although a court is not bound to appoint from the highest priority nominees if it finds sufficient cause or unusual circumstances, in the absence of unusual circumstances or sufficient cause, it is the duty of the court to follow the statutes such as this section as set out by the General Assembly. McEntire v. McEntire, 265 Ark. 260, 577 S.W.2d 607 (1979).

Evidence of Refusal.

Where two or more persons are named as executors, the renunciation or refusal of one to join or take upon himself the execution of a will cannot be evidenced by acts in pais, but must be shown by matter of record. Newton v. Cocke, 10 Ark. (5 English) 169 (1849) (decision under prior law).

Personal representation discharged and released the estate from her right to seek appointment that she otherwise had pursuant to the probate code and the terms of the will. Green v. McAuley, 59 Ark. App. 114, 953 S.W.2d 66 (1997).

Father as Administrator.

Father of minor child killed in automobile accident though divorced was qualified to act as administrator of child where mother who had custody was permanently injured in same accident. Smith v. Rudolph, 221 Ark. 900, 256 S.W.2d 736 (1953).

Grandmother as Administratrix.

Paternal grandmother of decedent was qualified to serve as administratrix even though she was not entitled to a distributive share, because she had been nominated by persons who were. Wisdom v. McBride, 311 Ark. 492, 845 S.W.2d 6 (1993).

Law Applicable to Administrator.

An administrator cum testamento annexo is liable to the same provisions of the law as other administrators, except that he distributes the estate according to the will. Whitlow v. Patterson, 195 Ark. 173, 112 S.W.2d 35 (1937) (decision under prior law).

Minor Nominating Administrator.

A nineteen-year-old widow, although disqualified to serve as administrator of her deceased husband's estate, was not precluded from the right to nominate an administrator. Brod v. Brod, 227 Ark. 723, 301 S.W.2d 448, 64 A.L.R.2d 1147 (1957).

Preferential Right of Creditor.

Where a widow failed or refused to administer the estate of her deceased husband, a creditor had a preferential right to move for the appointment of an administrator. Lineback v. Howerton, 181 Ark. 433, 26 S.W.2d 74 (1930) (decision under prior law).

Priority.

Decedent's father and the decedent's uncle, who was the nominee of his mother, shared equal priority as nominees under (a)(3). In re Estate of Robinson, 36 Ark. App. 1, 816 S.W.2d 896 (1991).

Qualifications of Appointee.

Persons named as a preferred class are subject to the conditions that an administrator must be qualified and must, in the opinion of the court, be the person who can best manage and improve an estate. Woodruff v. Miller, 209 Ark. 759, 192 S.W.2d 527 (1946) (decision under prior law).

Appointment of an unpardoned felon as a personal representative was voidable, rather than void ab initio, because (1) the court or parties did not know the personal representative was unqualified, so the court had jurisdiction to appoint the personal representative under §§ 28-48-101 to 28-48-103, and (2) another was appointed once the personal representative's disqualification was known. In re Estate of L.C. Taylor v. MCSA, LLC, 2013 Ark. 429, 430 S.W.3d 120 (2013).

Appointment of an unpardoned felon as a personal representative was voidable, rather than void ab initio, because (1) § 28-1-115(b) states that no vacation of a probate court order affects a prior act, (2) § 28-48-105(b) states that removing a personal representative does not invalidate prior official acts, and (3) § 28-48-102(d)(2) also provides that a personal representative's acts before removal are valid. In re Estate of L.C. Taylor v. MCSA, LLC, 2013 Ark. 429, 430 S.W.3d 120 (2013).

Votes for Administrator.

Trial court should not weigh votes of distributees for administrator of an estate in the order of descent, as prescribed in § 28-9-214, but even if it did so, if the trial court were to find a tie-vote for administrator of an estate at the first level of priority, it would be logical to proceed to the next level to break the tie. Wisdom v. McBride, 311 Ark. 492, 845 S.W.2d 6 (1993).

Cited: Sides v. Haynes, 181 F. Supp. 889 (W.D. Ark. 1960); Roberson v. Hamilton, 240 Ark. 898, 405 S.W.2d 253 (1966); Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991); In re Vesa, 319 Ark. 574, 892 S.W.2d 491 (1995).

28-48-102. Letters — Issuance — Form.

  1. When a duly appointed personal representative has given such bond as may be required and the bond has been approved by the court or by the clerk, subject to confirmation by the court, or, if no bond is required, when the personal representative has filed with the clerk a written acceptance of his or her appointment, letters under the seal of the court shall be issued to him or her.
  2. The letters shall be in substantially the following form:
  3. Letters of administration with will annexed, administration in succession, and special administration shall conform with this form with appropriate modifications.(d)(1)(A) Letters of administration are not necessary to empower the person appointed to act for the estate.

“In the Circuit Court of County, Arkansas. In the Matter of the Estate of C.D., deceased. No. Letters of Administration (Testamentary) Be it known that A.B., whose address is , having been duly appointed administrator of the estate (executor of the will) of C.D., deceased, who died on or about , 20 , and having qualified as such administrator (executor) is hereby authorized to act as such administrator (executor) for and in behalf of the estate and to take possession of the property thereof as authorized by law. Issued this day of , 20 . , Clerk. (Seal)”.

Click to view form.

(B) Letters of administration are for the purpose of notifying third parties that the appointment of an administrator has been made.

(2) The order appointing the administrator empowers the administrator to act for the estate, and any act carried out under the authority of the order is valid.

History. Acts 1949, No. 140, § 71; A.S.A. 1947, § 62-2202; Acts 2007, No. 438, § 1; 2013, No. 1137, § 1.

Amendments. The 2007 amendment added (d).

The 2013 amendment substituted “Circuit” for “Probate” in (b).

Research References

Ark. L. Rev.

Recent Development: Arkansas Act 438 of 2007, 60 Ark. L. Rev. 1023.

Case Notes

Construction.

Trial court erred in awarding summary judgment to defendants in a wrongful death and survival action brought by a patient's relatives where Acts 2007, chapter 438, amending this section, provided that letters of administration were not necessary to empower a person appointed to act for an estate. Chapter 438 was procedural and was meant to be applied retroactively. Steward v. Statler, 371 Ark. 351, 266 S.W.3d 710 (2007), rehearing denied, — Ark. —, — S.W.3d —, 2007 Ark. LEXIS 662 (Dec. 6, 2007).

Trial court erred in awarding summary judgment to a doctor in personal representative's medical malpractice and wrongful death action because under this section, it was an order of appointment, not letters of administration, that empowered the personal representative to act on behalf of the patient's estate. Estate of Banks v. Wilkin, 101 Ark. App. 156, 272 S.W.3d 137 (2008).

The 2007 amendment of this section is to be applied retroactively. Estate of Banks v. Wilkin, 101 Ark. App. 156, 272 S.W.3d 137 (2008).

Necessity for Letters.

The probate of a will authorizes the grant of letters testamentary, but, until letters are ordered issued, it gives no authority over the estate. Jackson v. Reeve, 44 Ark. 496 (1884) (decision under prior law).

Administratrix was not required to have executed letters of administration in order to file a complaint against the medical center on June 10, 2003, because the order appointing her administratrix was entered before the complaint was filed, was effective at the time the complaint was filed, and empowered her to act for the estate without the necessity of letters of administration. Brown v. Nat'l Health Care of Pocahontas, Inc., 102 Ark. App. 148, 283 S.W.3d 224 (2008).

Power to Bring Suit.

Son, a foreign administrator of his mother's estate, was subject to the requirements for domiciliary personal representatives pursuant to § 16-61-110, and therefore was required to have been appointed under this section. Because the son had not been appointed administrator of his mother's estate in any state at the time he filed his original complaint for trespass and conversion of timber, he did not have standing to sue; because the complaint was a nullity, a second complaint could not relate back under Ark. R. Civ. P. 15(c). Travis Lumber Co. v. Deichman, 2009 Ark. 299, 319 S.W.3d 239 (2009).

Release of Note.

A release by one of two joint administrators of a note payable to them in their representative capacity was ineffectual to bar recovery thereon. Clark v. Gramling, 54 Ark. 525, 16 S.W. 475 (1891) (decision under prior law).

Validity of Personal Representative's Acts Before Removal.

Appointment of an unpardoned felon as a personal representative was voidable, rather than void ab initio, because (1) § 28-1-115(b) states that no vacation of a probate court order affects a prior act, (2) § 28-48-105(b) states that removing a personal representative does not invalidate prior official acts, and (3) subdivision (d)(2) of this section also provides that a personal representative's acts before removal are valid. In re Estate of L.C. Taylor v. MCSA, LLC, 2013 Ark. 429, 430 S.W.3d 120 (2013).

28-48-103. Special administrators.

  1. For good cause shown, a special administrator