Arkansas Petition for Probate

Introduction

Key Things to Know

1. 1

   Filing: a petition for probate of will and appointment of personal representative, or a petition for appointment of administrator when there is no will, filed in the circuit court, probate division, of the proper county (Ark. Code Ann. §28-40-101). The Supreme Court adopts the official forms under Administrative Order 12. The court's form controls over the draft on this page.

2. 2

   No one has authority over estate assets until the court appoints a personal representative and letters issue. Being named as executor in a will does not by itself allow anyone to collect assets, pay debts or transfer property. Do not distribute, pay heirs or sell estate property before appointment or before the creditor period runs.

3. 3

   No will may be admitted to probate and no administration granted unless application is made within five years from the death, subject to exceptions such as fraudulent concealment (Ark. Code Ann. §28-40-103(a)). After the testator's death, the person with custody of the will must deliver it to the court that has jurisdiction of the estate or to the named executor; no day count is stated. On an interested person's written motion, the clerk issues a citation to produce it (§28-40-105).

4. 4

   Who may serve, in order: the executor nominated in the will; a surviving spouse or nominee on petition filed within 30 days after death; a person entitled to a distributive share, or a nominee, if application is made within 40 days after death when there is a surviving spouse, or 30 days when there is none; then any other qualified person (Ark. Code Ann. §28-48-101(a)). A nonresident individual is disqualified unless they appoint the court clerk or an approved county resident as agent to accept service. Appointment is not guaranteed.

5. 5

   Notice: a hearing notice is required if the petition is opposed or a demand for notice was filed; otherwise the court may hear it without notice (Ark. Code Ann. §§28-40-109, 28-40-110). After appointment, the personal representative publishes a notice of appointment promptly and, within one month after first publication, serves a copy on each known heir and devisee and on known or reasonably ascertainable creditors (§28-40-111(a)(4)).

6. 6

   Creditors: the published notice requires claims within six months from the date of first publication, or they are barred. Known or reasonably ascertainable creditors are barred two years from first publication even without actual notice, and barrable claims are barred five years after death if no letters issued and no notice was published (Ark. Code Ann. §28-50-101).

7. 7

   Bond is not automatic: the court may require a bond with corporate surety before letters issue or at any time, must act on a written demand by a claimant or interested person, and may increase, decrease or dispense with bond for good cause (Ark. Code Ann. §§28-48-201, 28-48-206). Not every estate needs probate: a distributee may use a small-estate affidavit filed with the probate clerk, covered on DocDraft's small-estate-affidavit page, and the court clerk can say whether any other simplified procedure applies.

Arkansas Requirements for Petition for Probate

• Circuit Court, Probate Division

  The petition is filed in the circuit court, probate division, of the proper county, and the proceeding from petition to final distribution is treated as one proceeding for jurisdiction (Ark. Code Ann. §28-40-101(a)).

• Official Forms Adopted by the Supreme Court

  The Arkansas Supreme Court adopts official probate forms under Administrative Order 12. Ask the circuit clerk for the current petition form. The court's form controls over a draft.

• Five-Year Limit to Offer the Will

  No will may be admitted to probate and no administration granted unless application is made within five years from the death, subject to stated exceptions (Ark. Code Ann. §28-40-103(a)).

• Will Custodian Must Deliver the Will

  After the testator's death, the person with custody of the will must deliver it to the court or the named executor. Willful refusal after a citation is contempt plus damages (Ark. Code Ann. §28-40-105(a)).

• Order of Priority and Nonresident Rule

  Priority runs from the nominated executor to a surviving spouse petitioning within 30 days after death, then a distributee applying within 40 days (spouse living) or 30 days (no spouse), then any other qualified person. A nonresident individual must appoint the clerk or an approved county resident as agent for service (Ark. Code Ann. §28-48-101).

• Petition Contents

  The petition names the petitioner and their interest, the decedent, the will or intestacy, the heirs and devisees with addresses, the estate value and the proposed personal representative and their qualification.

• Hearing Notice and Notice of Appointment

  Hearing notice is required if the petition is opposed or a demand for notice was filed. After appointment, notice is published and served on known heirs and devisees within one month after first publication (Ark. Code Ann. §§28-40-110, 28-40-111).

• Six-Month Creditor Claims Period

  The published notice requires claims within six months from the date of first publication, or they are barred. Known or reasonably ascertainable creditors are barred two years from first publication (Ark. Code Ann. §28-50-101).

• Bond Is Discretionary

  The court may require a bond with corporate surety, must act on a written demand by a claimant or interested person, and may dispense with bond for good cause (Ark. Code Ann. §§28-48-201, 28-48-206).