Ark. Code Ann. § 28-1-116 (2026)

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).