Ark. Code Ann. § 28-1-104 (2026)

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).