Ark. Code Ann. » Title 28 Chapter 01
Arkansas Code Annotated

Ark. Code Ann. § 28-1-112 (2020)

Notice — Service — Proof — Costs

✓ Arkansas Code release r76: Acts through about 2020 (2021-2025 sessions missing)
Find cases: SyfertCases citing this section JustiaArk. Code CornellLII Search CasesGoogle Scholar
  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;
    5. By any combination of two (2) or more of the methods set out in subdivisions (b)(1)-(4) of this section; or
    6. 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).

Notes of Decisions
Cited in 9 cases (2 in the last 5 years), 1993–2021 · leading case: Finney v. Cook, 94 S.W.3d 333 (Ark. 2002).
Sort: Relevance Newest Treatment
Finney v. Cook, 94 S.W.3d 333 (Ark. 2002). · cites it 20× “§ 28-65-207(b)(2) in the manner prescribed in Ark. Code Ann. § 28-1-112 . The State counters that under section 28-1-112(e) notice may be served upon the party's attorney of record.”
Seymour v. Biehslich, 266 S.W.3d 722 (Ark. 2007). · cites it 6× “Here, she maintains that there is “no evidence of record that any of the heirs received legal notice of the hearing set on the final accounting in the matter,” and she argues that the trial court’s actions violated Ark. Code Ann. §28-1-112 (Repl. 2004), which sets out the rules…”
Brown v. Arkansas Dep't of Human Servs., 2017 Ark. App. 67, 511 S.W.3d 895. · cites it 2× “On appeal, Edna argues that the Adult Maltreatment Custody Act requires that notice of the long-term custody hearing be given to “the next of kin of the respondent whose names and addresses are known to petitioner,” in the form mandated by Arkansas Code Annotated section…”
Mid-South Adjustment Co. v. Est. of Harris, 189 S.W.3d 518 (Ark. Ct. App. 2004). · cites it 2× “See Ark. Code Ann. § 28-1-112 (a). While correction of this conflict between our probate code and the wrongful-death act could best be made legislatively, we could alleviate some of the appearance of self-dealing and violation of a personal representative’s fiduciary duty by…”
Sanford v. Murdoch, 285 S.W.3d 620 (Ark. 2008). “As a final point, Sanford claimed that the circuit court violated Arkansas Code Annotated § 28-1-112 (Repl. 2004), when it appointed an attorney-ad-litem without notice, without a hearing, and without adequate time to respond to the underlying petition.”
Bowling v. Spears, 858 S.W.2d 93 (Ark. 1993). “(4) 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…”
John A. Haverstick v. Frances Haverstick, 2021 Ark. App. 260. · cites it 3× “The brothers conceded that neither of them had filed a demand for notice; however, they argued that they were not served in accordance with either section 28-1-109(a) or section 28-1-112 (Repl. 2012), and the court did not have jurisdiction over the case.”
Eddie S. Watkins III v. Raymond Adams, 2021 Ark. App. 261. “§ 28-1-112 (Repl. 2012). Raymond filed responses in opposition to the motions, and the trial court scheduled a hearing.”
Dawson v. Dawson, 2017 Ark. App. 584. · cites it 2× “He concluded by arguing that the circuit court had no jurisdiction over the parties because he had never been served by mail or any other manner as required by Ark. Code Ann. § 28-1-112 , the executor failed to follow the procedures set forth in the probate code, and the matter…”
Ark. Code Ann. § 28-1-112(a): 1 case
Seymour v. Biehslich, 266 S.W.3d 722 (Ark. 2007). “Here, she maintains that there is “no evidence of record that any of the heirs received legal notice of the hearing set on the final accounting in the matter,” and she argues that the trial court’s actions violated Ark. Code Ann. §28-1-112 (Repl. 2004), which sets out the rules…”
Ark. Code Ann. § 28-1-112(b)(1): 1 case
Bowling v. Spears, 858 S.W.2d 93 (Ark. 1993). “(4) 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…”
Ark. Code Ann. § 28-1-112(e): 1 case
Finney v. Cook, 94 S.W.3d 333 (Ark. 2002). “§ 28-65-207(b)(2) in the manner prescribed in Ark. Code Ann. § 28-1-112 . The State counters that under section 28-1-112(e) notice may be served upon the party's attorney of record.”
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.