Ark. Code Ann. § 28-40-103 (2026)
Time limit for probate and administration
- No will shall be admitted to probate and no administration shall be granted unless application is made to the court for admission to probate within five (5) years from the death of the decedent, subject only to the exceptions stated in this section.
- This section shall not affect the availability of appropriate equitable relief against a person who has fraudulently concealed or participated in the concealment of a will.
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- Insofar only as it relates to real property in Arkansas, or any interest in real property, the will of a nonresident which has been admitted to probate in another appropriate jurisdiction may be admitted to probate in this state without regard to the time limit imposed by this section.
- However, rights and interests in the real property which, after the death of the testator if it is assumed that he or she died intestate, have been acquired by purchase, as evidenced by one (1) or more appropriate instruments which have been properly recorded in the office of the recorder of the county in which the real property is situated and which would be valid and effective had the decedent died intestate, shall not be adversely affected by the probate of the will in this state after the expiration of the time limit imposed by subsection (a) of this section.
History. Acts 1949, No. 140, § 64; 1963, No. 166, § 1; A.S.A. 1947, § 62-2125.
Case Notes
In General.
This section not only limits to five years the time in which a will may be admitted to probate, but also limits to five years the time in which letters of administration may be granted. Horn v. Horn, 226 Ark. 27, 287 S.W.2d 586 (1956).
Applicability.
Proponent of the will of a person who died before the effective date of this section did not have a vested right to probate the will more than five years after the effective date of this section. Horn v. Horn, 226 Ark. 27, 287 S.W.2d 586 (1956).
The will of person who died more than five years before the effective date of this section could not be probated more than five years after the effective date of this section. Horn v. Horn, 226 Ark. 27, 287 S.W.2d 586 (1956).
This section and § 28-9-209 are not applicable in a paternity case; paternity action must be commenced in chancery court because it is not a determination of heirship. In re Estate of F.C., 321 Ark. 191, 900 S.W.2d 200 (1995).
Application to Court.
An application to the court within the meaning of this section was made when proponents of a will filed a verified petition for probate within three days after death of the testator, and a personal appearance before the probate court was not necessary. Minchew v. Tullis, 236 Ark. 818, 368 S.W.2d 282 (1963).
Estoppel.
Where the widow of a deceased invoked the aid of a court to permit her to serve as administrator, although her first request for appointment was after expiration of period for probating will, she could not later complain that the court was without the power to make such an appointment. Davis v. Adams, 231 Ark. 197, 328 S.W.2d 851 (1959).
Interests in Property.
2012 Arkansas probate of the decedent's will was proper because that will had previously been admitted to probate in Florida; even then, however, if the real property involved were purchased after the death of the testator by a third party from a person who, but for the will, would have been the intestate heir of the decedent, interests in the property would not be affected by the probate of the will after the expiration of the five-year period if the instrument of transfer had been recorded in the county where the real property is located. Christian v. McVesting, LLC, 2014 Ark. App. 509, 443 S.W.3d 578 (2014).
But for the will, the decedent's son would have been the intestate heir of the decedent, and the son quitclaimed his interest in the property to a company by an instrument recorded on June 24, 2009, and the will had not been admitted to probate in Arkansas until October 23, 2012; the trial court erred in denying the devisees' motion to intervene, given that, as named devisees of the property in question in the decedent's will, the devisees clearly had a recognized interest in the mineral interests in the property that the company's petition sought to settle. Christian v. McVesting, LLC, 2014 Ark. App. 509, 443 S.W.3d 578 (2014).
Later Will as Counterclaim.
Where deceased had two wills, one being probated, and the later will was offered for probate more than five years after testator's death, the later will was barred by this section despite the contention it was offered as a counterclaim and therefore not subject to this section. Coleman v. Coleman, 257 Ark. 404, 520 S.W.2d 239 (1975).
Nonresident's Will.
This section, which limits the period within which a will may be admitted to probate to five years from the testator's death, applies to a nonresident's will which has been admitted to probate in a foreign jurisdiction. Sims v. Schavey, 234 Ark. 166, 351 S.W.2d 145, 87 A.L.R.2d 718 (1961).
Oversight of Clerk.
Where a will, together with the necessary proof of its execution, was filed with the probate clerk in 1947, but the clerk failed to enter an order admitting the will to probate, the party had fully complied with the requirements of former provisions for the probate of the will, notwithstanding the oversight of the clerk, and it was not barred by the subsequently enacted statute of limitation contained in this section. Muldrew v. Dodson, 237 Ark. 852, 376 S.W.2d 672 (1964) (decision under prior law).
The time limit of this section did not apply to prevent the probate of a will which, together with necessary proof of its execution, had been filed with the probate clerk in 1947 under repealed § 60-209, but where the clerk had failed to enter an order admitting it to probate. Muldrew v. Dodson, 237 Ark. 852, 376 S.W.2d 672 (1964) (decision under prior law).
Probate Barred.
Former limitations period in effect prior to the 1963 amendment of this section barred probate of decedent's will because she died in 1962, and the five-year period from her death had passed. Delafield v. Lewis, 299 Ark. 50, 770 S.W.2d 659 (1989).
Probate division of the circuit court was statutorily time-barred from administering an estate under this section because the probate court had no authority to administer an estate past the five-year limit set forth in the statute. Furthermore, the passage of almost 100 years from the death of the title owners of the real property in the estate was not an exception to the statute. Edwards v. Hart, 2020 Ark. App. 182, 598 S.W.3d 543 (2020).
Provisions Not Retroactive.
Proceeding in 1950 to probate will of person who died in 1935 was not barred by five year limitation period contained in the 1949 Code, since the Probate Code is not retroactive. Hudson v. Hudson, 219 Ark. 211, 242 S.W.2d 154 (1951).
“Purchase” Construed.
Where oil, gas, and mineral interests were deeded from grandchild to her aunt several weeks before will was offered to probate in Louisiana, but that will was not offered for probate in Arkansas until 10 years later, the fact that the granddaughter may have had notice of the existence of the will before her conveyance did not cause the conveyance not to be qualified as a “purchase” under subsection (c) of this section and thus foreclose the admission of the will to probate despite the expiration of the five-year period under this section, since the phrase “purchase” as used in subsection (c) of this section does not mean or imply a bona fide purchaser without notice. Cooper v. Tosco Corp., 272 Ark. 294, 613 S.W.2d 831 (1981).
Cited: Blair v. Bradley, 238 Ark. 191, 379 S.W.2d 5 (1964); Johnson v. Johnson, 292 Ark. 536, 732 S.W.2d 121 (1987).