Ark. Code Ann. » Title 28 Chapter 40
Arkansas Code Annotated

Ark. Code Ann. § 28-40-104 (2026)

No will effectual until probated — Unprobated wills admitted as evidence

✓ current as of May 2026
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  1. No will shall be effectual for the purpose of proving title to or the right to the possession of any real or personal property disposed of by the will until it has been admitted to probate.
  2. Except as provided in § 28-41-101, to be effective to prove the transfer of any property or to nominate an executor, a will must be declared to be valid by an order of probate by the circuit court, except that a duly executed and unrevoked will which has not been probated may be admitted as evidence of a devise if:
    1. No proceeding in circuit court concerning the succession or administration of the estate has occurred; and
    2. Either the devisee or his or her successors and assigns possessed the property devised in accordance with the provisions of the will, or the property devised was not possessed or claimed by anyone by virtue of the decedent's title during the time period for testacy proceedings.
  3. The provisions of subsections (b) and (c) of this section shall be supplemental to existing laws relating to the time limit for probate of wills, and the effect of unprobated wills, and shall not be construed to repeal § 28-40-103 and subsection (a) of this section or any other law not in direct conflict herewith.

History. Acts 1949, No. 140, § 65; 1981, No. 347, §§ 1, 2; A.S.A. 1947, §§ 62-2126 — 62-2126.2.

Research References

U. Ark. Little Rock L.J.

Legislative Survey, Decedents' Estates, 4 U. Ark. Little Rock L.J. 591.

Case Notes

Purpose.

The intent of subsections (b) and (c) was not to alter existing laws affecting the timely probate of wills in order to give effect to their provisions, but to evidence a claim of ownership by one who has been in possession of property consistent with the terms of an unrevoked will which was not probated. Johnson v. Johnson, 292 Ark. 536, 732 S.W.2d 121 (1987).

Applicability.

Actual possession, rather than constructive possession, is contemplated for subsection (b) to apply. Johnson v. Johnson, 292 Ark. 536, 732 S.W.2d 121 (1987).

Trial court did not err when it found that, under subdivision (b)(2) of this section, a niece was the owner of the content's of her deceased uncle's safety deposit box where, even though his will had not been probated, a copy of his unprobated will named her as sole beneficiary; the situation fit within the parameters of subsection (b)(2), which thus allowed evidence of the testator's intention and provided the evidence that supported the trial court's conclusion that niece was the owner of the box contents. Atkinson v. Knowles, 82 Ark. App. 224, 105 S.W.3d 818 (2003).

Delay in Closing Estate.

Where chancellor gave effect to the provisions of will which had been admitted to probate in 1936, since the will was filed and admitted to probate in a timely manner, and there were no inequities resulting from the unusual delay in closing the estate, there was no reason to disturb the chancellor's decision giving full effect to the will. Blundell v. Estate of Cox, 297 Ark. 320, 760 S.W.2d 872 (1988).

Evidence of Devise to Remainderman.

Where the testator's duly executed will, though never probated, remained unrevoked, where there had been no administration of the estate, and where the testator's devisee for life had possessed the property until his death, the will was properly admitted as evidence of the devise of the testator's property to the remainderman. Smith v. Ward, 278 Ark. 62, 643 S.W.2d 549 (1982).

Possession of Property.

A decedent's unprobated, duly executed, and nonrevoked will was properly admitted as evidence of devise of farm property since devisees under the will met the requirement of actual possession, notwithstanding that they did not physically possess the property, where (1) the devisees made the tenant aware that they owned the land and that they intended to continue the arrangement the tenant had with the decedent, (2) they conferred with the tenant about what crops to grow and the operation of the farm, (3) they visited the farm two or three times a year, (4) they signed a power of attorney and completed government documents, (5) they received subsidies from the government, and one-third of the profits generated by the tenant as rent, (6) as the will provided, they split the costs and income of the property evenly, (7) they also split the costs of expenses, insurance, real estate taxes, and levee taxes, and (8) when a bridge on the property collapsed, they posted no trespassing notices and blocked access to the bridge. Songer v. Wiggens, 71 Ark. App. 152, 27 S.W.3d 755 (2000).

Small Estates.

Circuit court erred in granting the declaratory judgment in favor of the heirs and ordering the decedent's land to be sold and the proceeds divided accordingly, where the circuit court's ruling was based on an erroneous interpretation and application of this section; because the small-estate procedure was excepted from the requirements of this section and § 28-41-101, the issue of whether the beneficiary commenced a probate proceeding was irrelevant. Osborn v. Bryant, 2009 Ark. 358, 324 S.W.3d 687 (2009).

Cited: Odom v. Travelers Ins. Co., 174 F. Supp. 426 (W.D. Ark. 1959); Rachel v. Johnson, 230 Ark. 1003, 328 S.W.2d 87 (1959); Delafield v. Lewis, 299 Ark. 50, 770 S.W.2d 659 (1989).

Notes of Decisions
Cited in 13 cases (2 in the last 5 years), 1988–2024 · leading case: Osborn v. Bryant, 324 S.W.3d 687 (Ark. 2009).
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Osborn v. Bryant, 324 S.W.3d 687 (Ark. 2009). · cites it 20× “Appellees argued that the will and deed were nullities under Ark.Code Ann. § 28-40-104 (Repl.2004 & Supp.”
Steward v. Statler, 266 S.W.3d 710 (Ark. 2007). · cites it 8× “2d 885, 887 (1967), our court explicitly stated that "[n]othing can be read into either [Ark.Code Ann. § 28-40-102(b) ] or [Ark.Code Ann.”
Atkinson v. Knowles, 105 S.W.3d 818 (Ark. Ct. App. 2003). · cites it 14× “Appellee answered by attaching an unprobated will of Nicker-son executed in 1988 naming her as sole beneficiary as evidence that the contents of the safe-deposit box should be vested in her, citing to Ark. Code Ann. § 28-40-104 (1987). Appellee also cross-complained against the…”
West v. Williams, 133 S.W.3d 388 (Ark. 2003). · cites it 4× “See Ark. Code Ann. § 28-40-104 (b) (1987). Clearly, pursuant to Administrative Order 2(b)(2), an oral order announced from the bench does not become effective until reduced to writing and filed.”
Osborn v. Bryant, 290 S.W.3d 620 (Ark. Ct. App. 2009). · cites it 20× “This is the second appeal from a declaratory judgment rendered by the Jackson County Circuit Court concerning whether a will that was not admitted to probate could be used as evidence of a devise of property under Ark.Code Ann. § 28-40-104 (Supp.2007). 1 The circuit court held…”
Judkins v. Hoover, 95 S.W.3d 768 (Ark. 2003). · cites it 2× “See Ark. Code Ann. § 28-40-104 (b) (1987). Clearly, pursuant to Administrative Order 2(b)(2), an oral order announced from the bench does not become effective until reduced to writing and filed.”
Harts v. Damsky, 2024 Ark. App. 604 (Ark. Ct. App. 2024). · cites it 24× “Houser argue that the trial court erred in finding that appellees met the requirements of Ark. Code Ann. § 28-40-104 (b) (Repl. 2012), and were therefore entitled to use a decedent’s unprobated will as evidence of the devise of mineral interests to them.”
Est. of Banks v. Wilkin, 272 S.W.3d 137 (Ark. Ct. App. 2008). · cites it 2× “, our court explicitly stated that “[n]othing can be read into either [ Ark. Code Ann. § 28-40-102 (b)] or [ Ark.”
Songer v. Wiggins, 27 S.W.3d 755 (Ark. Ct. App. 2000). · cites it 12× “See Ark. Code Ann. § 28-40-104 (a)-(b) (1987).”
Bryant v. Osborn, 2014 Ark. 143 (Ark. 2014). · cites it 2× “The issue on appeal remained after a prior appeal where this court held that the circuit court erred in its interpretation and application of Arkansas Code Annotated section 28-40-104 to the facts of the case.”
Delafield v. Lewis, 770 S.W.2d 659 (Ark. 1989). · cites it 2× “See Ark. Code Ann. § 28-40-104 (1987). Thus, any limitation period is initiated by the death of a decedent rather than any accrued cause of action.”
Shale Royalty LLC v. MMGJ Arkansas Upstream LLC (E.D. Ark. 2021). · cites it 2× “Shale requests that the Court permit Eleanor Cosden’s Will to serve as evidence of title as to the portion of ORRIs in dispute, pursuant to Ark. Code Ann. § 28-40-104 . That statute provides that a will may not serve as evidence of title unless it has been admitted to probate,…”
Show all 13 citing cases →
— Ark. Code Ann. § 28-40-104(a) — 1 case
Atkinson v. Knowles, 105 S.W.3d 818 (Ark. Ct. App. 2003). “Appellee answered by attaching an unprobated will of Nicker-son executed in 1988 naming her as sole beneficiary as evidence that the contents of the safe-deposit box should be vested in her, citing to Ark. Code Ann. § 28-40-104 (1987). Appellee also cross-complained against the…”
— Ark. Code Ann. § 28-40-104(b) — 5 cases
Osborn v. Bryant, 324 S.W.3d 687 (Ark. 2009). “Appellees argued that the will and deed were nullities under Ark.Code Ann. § 28-40-104 (Repl.2004 & Supp.”
West v. Williams, 133 S.W.3d 388 (Ark. 2003). “See Ark. Code Ann. § 28-40-104 (b) (1987). Clearly, pursuant to Administrative Order 2(b)(2), an oral order announced from the bench does not become effective until reduced to writing and filed.”
Osborn v. Bryant, 290 S.W.3d 620 (Ark. Ct. App. 2009). “This is the second appeal from a declaratory judgment rendered by the Jackson County Circuit Court concerning whether a will that was not admitted to probate could be used as evidence of a devise of property under Ark.Code Ann. § 28-40-104 (Supp.2007). 1 The circuit court held…”
Atkinson v. Knowles, 105 S.W.3d 818 (Ark. Ct. App. 2003). “Appellee answered by attaching an unprobated will of Nicker-son executed in 1988 naming her as sole beneficiary as evidence that the contents of the safe-deposit box should be vested in her, citing to Ark. Code Ann. § 28-40-104 (1987). Appellee also cross-complained against the…”
Harts v. Damsky, 2024 Ark. App. 604 (Ark. Ct. App. 2024). “Houser argue that the trial court erred in finding that appellees met the requirements of Ark. Code Ann. § 28-40-104 (b) (Repl. 2012), and were therefore entitled to use a decedent’s unprobated will as evidence of the devise of mineral interests to them.”
— Ark. Code Ann. § 28-40-104(b)(1) — 3 cases
Osborn v. Bryant, 324 S.W.3d 687 (Ark. 2009). “Appellees argued that the will and deed were nullities under Ark.Code Ann. § 28-40-104 (Repl.2004 & Supp.”
Osborn v. Bryant, 290 S.W.3d 620 (Ark. Ct. App. 2009). “This is the second appeal from a declaratory judgment rendered by the Jackson County Circuit Court concerning whether a will that was not admitted to probate could be used as evidence of a devise of property under Ark.Code Ann. § 28-40-104 (Supp.2007). 1 The circuit court held…”
Harts v. Damsky, 2024 Ark. App. 604 (Ark. Ct. App. 2024). “Houser argue that the trial court erred in finding that appellees met the requirements of Ark. Code Ann. § 28-40-104 (b) (Repl. 2012), and were therefore entitled to use a decedent’s unprobated will as evidence of the devise of mineral interests to them.”
— Ark. Code Ann. § 28-40-104(b)(l) — 1 case
Osborn v. Bryant, 324 S.W.3d 687 (Ark. 2009). “Appellees argued that the will and deed were nullities under Ark.Code Ann. § 28-40-104 (Repl.2004 & Supp.”
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