Ark. Code Ann. § 28-40-102 (2026)
Venue
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The venue for the probate of a will and for administration shall be:
- In the county in this state where the decedent resided at the time of his or her death;
- 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;
- 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
- 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.
- 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.
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- 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.
- 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.
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- 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.
- 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).