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

Ark. Code Ann. § 28-40-111 (2020)

Notice of appointment of personal representative

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      1. Promptly after the letters have been granted on the estate of a deceased person, the personal representative shall cause a notice of his or her appointment to be published stating the date of his or her appointment and requiring all persons having claims against the estate to exhibit them, properly verified to him or her, within six (6) months from the date of the first publication of the notice, or they shall be forever barred and precluded from any benefit in the estate.
      2. Claims for injury or death caused by the negligence of the decedent shall also be filed within six (6) months from the date of first publication of the notice, or they shall be forever barred and precluded any benefit in the estate.
    2. The notice shall state the mailing address of the personal representative.
    3. If a will of the decedent has been probated, the notice shall also state the date of admission of the will to probate and that a contest of the order of probate can be effected only by filing a petition within the time provided by law.
      1. 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 ascertainable by the personal representative, including the Department of Human Services if it is known or could reasonably be ascertained that the department has rendered services to the decedent, in accordance with § 28-1-112(b)(1), § 28-1-112(b)(2), or § 28-1-112(b)(3).
        1. Notice to the department shall be served upon the Office of Chief Counsel, Decedent's Estates, P.O. Box 1437, Little Rock, AR 72203.
        2. A copy of the petition for probate of a will or administration of an estate and the decedent's social security number shall be attached to the notice served upon the department.
        1. If, thereafter, the names and addresses of any such creditors are ascertained, a copy of the notice shall be promptly served upon them.
        2. The burden of proof on any issue as to whether a creditor was known to or reasonably ascertainable by the personal representative shall be upon the creditor claiming entitlement to such actual notice.
  2. When a will is to be probated without an administration of the estate, the notice shall be published by the proponents of the will and shall state the mailing address of each of the one (1) or more proponents and the name and address of the attorney for the proponents.
  3. The notice shall be in substantially the following form:
    1. (To be used where no will.)
    2. (To be used when a will is probated and a personal representative appointed.)
    3. (To be used when a will is probated but no personal representative appointed.)
    4. (To be used in cases where a personal representative is appointed.)
    1. Publication of the notice shall be as provided in § 28-1-112(b)(4) unless the value of the estate to be administered upon does not exceed one thousand dollars ($1,000), exclusive of homestead, in which event publication may be given by posting notice in the courthouse at a conspicuous place near a principal entrance for a period of three (3) weeks.
    2. In addition, the court may by general rule, or by special order in a particular case, require that notice shall be given by ordinary mail to all persons whose names and addresses appear in the petition.

“In the Circuit Court of County, Arkansas

In the Matter of the Estate of , Deceased. No

Last known address

Date of death

The undersigned was appointed administrator of the estate of the above decedent on the day of , 20

An instrument dated was on the day of , 20 , admitted to probate as the last will of the above named decedent and the undersigned has been appointed executor (or administrator) thereunder. Contest of the probate of the will can be effected only by filing a petition within the time provided by law.

An instrument dated was on the day of , 20 , admitted to probate as the last will of the above named decedent. Contest of the probate of the will can be effected only by filing within the time provided by law a petition for an order revoking or modifying the order admitting the will to probate, and delivering a copy of such petition to the undersigned proponent(s) or the undersigned attorney for the proponent(s) at his (their) address hereunder shown.

All persons having claims against the estate must exhibit them, duly verified, to the undersigned within six (6) months from the date of the first publication of this notice, or they shall be forever barred and precluded from any benefit in the estate.

This notice first published , 20

(Administrator, Executor, Proponent, or Petitioner)

(Mail Address)”

History. Acts 1949, No. 140, § 50; 1953, No. 32, § 1; 1967, No. 287, § 1; 1985, No. 1007, § 1; A.S.A. 1947, § 62-2111; Acts 1987 (1st Ex. Sess.), No. 16, § 1; 1989, No. 929, § 2 [1]; 1989 (3rd Ex. Sess.), No. 59, § 1; 1993, No. 415, § 2; 2009, No. 217, § 1.

A.C.R.C. Notes. Acts 1987 (1st Ex. Sess.), No. 16, § 2, provided that this act shall be applicable to estates where administration is pending on June 12, 1987, and that if any notice required by this act has not previously been given by the personal representative, the personal representative shall give such notice within 90 days from June 12, 1987, if the claims of persons to receive notice are not barred by the expiration period set forth in § 28-50-101.

Amendments. The 2009 amendment substituted “six (6) months” for “three (3) months” in (a)(1)(A) and the second paragraph of (c)(4); substituted “Circuit” for “Probate” in the line following the introductory language in (c); deleted the last sentence in the second paragraph of (c)(4), which read: “However, claims for injury or death caused by the negligence of the decedent shall be filed within six (6) months from the date of first publication of the notice, or they shall be forever barred and precluded from any benefit in the estate”; and made stylistic and minor punctuation changes.

Research References

Ark. L. Rev.

Amendments of the Probate Code, 7 Ark. L. Rev. 377.

Notices under the Probate Code, 8 Ark. L. Rev. 324.

Panel on Experience under the Arkansas Probate Code, 12 Ark. L. Rev. 40.

Haught, 1988 Update to the Arkansas Probate System: An Overview of Recent Developments in Arkansas Probate Practice, 42 Ark. L. Rev. 631.

Note, The Requirement of Notice in Probate Proceedings: Recent Changes in Arkansas Law, 43 Ark. L. Rev. 945.

U. Ark. Little Rock L.J.

Legislative Survey, Probate, 8 U. Ark. Little Rock L.J. 597.

Note, Probate — Satisfying the Due Process Requirement of Actual Notice to Estate Creditors, Tulsa Professional Collection Services v. Pope, 108 S. Ct. 1340, 485 U.S. 478, 99 L. Ed. 2d 565 (1988), 11 U. Ark. Little Rock L.J. 603.

Case Notes

Construction.

A creditor of an estate must be subject to identification during the three month (now six (6) months) statute of nonclaim, § 28-50-101(a); if this were not the case, then all matters of estate would be left open for two years under § 28-50-101(h) and subsection (a) of this section, which was certainly not the intent of the legislature. Brasel v. Estate of Harp, 317 Ark. 379, 877 S.W.2d 923 (1994).

Claims Disallowed.

Where claimant filed a claim against the estate of the deceased more than six months after the first notice to creditors, but less than six months after the heirs had filed their waivers of notice, the claim was properly disallowed. Chamberlain v. Crawford, 236 Ark. 468, 366 S.W.2d 897 (1963) (decision under prior law).

Persons Entitled to Receive Notice.

There is no requirement of notice of estate proceedings to parties who have no direct interest in decedents' estates, and those parties do not have standing to enter to the estate proceeding or to raise the issue whether decedents' offspring, who had been convicted of manslaughter in their death, could inherit from their estate. Kimrey v. Booth, 285 Ark. 18, 685 S.W.2d 139 (1985).

Circuit court applied the correct legal standard in considering the creditor's claims against the estate as untimely and did not improperly determine that written service of notice was unnecessary; the circuit court's statements that the creditor knew of decedent's death merely provided background information. CMS Inv. Holdings, LLC v. Estate of Wilson, 2016 Ark. App. 545, 506 S.W.3d 292 (2016).

Because the creditor failed to obtain a ruling on the issue of the personal representative's reasonable diligence in searching for creditors of the estate, the issue was summarily disposed of on appeal. CMS Inv. Holdings, LLC v. Estate of Wilson, 2016 Ark. App. 545, 506 S.W.3d 292 (2016).

In determining whether the creditor was entitled to notice, the circuit court merely provided background information that it deemed relevant to the issue of whether the creditor was either known or reasonably ascertainable, and it did not impose requirements on the creditor that were more stringent than the law provides. CMS Inv. Holdings, LLC v. Estate of Wilson, 2016 Ark. App. 545, 506 S.W.3d 292 (2016).

Circuit court did not clearly err when it determined that the creditor was not a known or reasonably ascertainable creditor; ample evidence supported its conclusion. CMS Inv. Holdings, LLC v. Estate of Wilson, 2016 Ark. App. 545, 506 S.W.3d 292 (2016).

Circuit court did not improperly consider the merits of the creditor's claims against the estate when deciding whether the creditor was a known or reasonably ascertainable creditor and thus entitled to notice. CMS Inv. Holdings, LLC v. Estate of Wilson, 2016 Ark. App. 545, 506 S.W.3d 292 (2016).

Petition to Set Aside Will.

Where brothers of testator were not given notice of the admission of the will to probate in the manner required by this section, but were mentioned as heirs in the petition to probate, their petition to set aside the will filed six months and 13 days after the admission of the will to probate was filed in time under subsection (b)(2)(C) of § 28-40-113. Jones v. Jones, 234 Ark. 163, 350 S.W.2d 673 (1961) (decision under prior law).

Cited: Brickey v. Lacy, 247 Ark. 906, 448 S.W.2d 331 (1969); Gibbins v. Hancock, 267 Ark. 298, 590 S.W.2d 280 (1979); Boatman v. Dawkins, 294 Ark. 421, 743 S.W.2d 800 (1988); In re Estate of Spears, 314 Ark. 54, 858 S.W.2d 93 (1993).

Notes of Decisions
Cited in 12 cases (2 in the last 5 years), 1988–2022 · leading case: Dodson v. Charter Behavioral Health Sys. of Nw. Arkansas, Inc., 983 S.W.2d 98 (Ark. 1998).
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Dodson v. Charter Behavioral Health Sys. of Nw. Arkansas, Inc., 983 S.W.2d 98 (Ark. 1998). · cites it 12× “In any event, all three of these parties had notice and information regarding their respective claims and defenses well within the six-month period provided for under §§ 28-40-111 and 28-50-101. As a consequence, the purpose of Arkansas's probate-notice provisions were met, and…”
Massey v. Fulks, 2011 Ark. 4, 376 S.W.3d 389. · cites it 6× “As pertinent here, Arkansas Code Annotated section 28-40-111 provides: (a)(1)(A) Promptly after the letters have been granted on the estate of a deceased person, the personal representative shall cause a notice of his or her appointment to be published stating the date of his or…”
Boatman v. Dawkins, 743 S.W.2d 800 (Ark. 1988). · cites it 4× “) The appellant's last point of appeal is that she was not given notice of the petition for probate as required by Ark. Code Ann. § 28-40-111 (1987), replacing Ark.”
Bowling v. Spears, 858 S.W.2d 93 (Ark. 1993). · cites it 6× “Because the claim of the appellants was not known to or reasonably ascertainable by the administratrix at the time of first publication of notice, reasoned the court, the requirements of Ark. Code Ann. § 28-40-111 (a)(4) (Supp. 1991) concerning notice to creditors known or…”
Craig v. Carrigo, 12 S.W.3d 229 (Ark. 2000). · cites it 2× “One of the tasks is to give proper notice of the appointment of the personal representative to all persons having claims against the estate, including heirs and creditors, pursuant to Ark. Code Ann. § 28-40-111 . The statute provides a form section (c) for that purpose.”
In re Amends. to the Ark. R. Civ. P., 2014 Ark. 119. · cites it 4× “_______________________________ [Administrator] [Administratrix] _______________________________ [Mailing Address] Reporter's Notes to Form 12: See Ark. Code Ann. § 28-40-111 . This form shall be used if no will was admitted to probate.”
Brasel v. Est. of Harp, 877 S.W.2d 923 (Ark. 1994). “- § 28-40-111(a)(1), (a)(4) (Supp. 1991), and as such should have had two years from publication of notice to creditors in which to file a claim since she did not receive actual notice.”
CMS Inv. Holdings, LLC v. Est. of Wilson, 2016 Ark. App. 545, 506 S.W.3d 292. · cites it 4× “Ark. Code Ann. § 28-40-111 (a)(4)(C)(ii).”
Bryant v. Osborn, 2014 Ark. 143. · cites it 2× “Appellants note that Arkansas Code Annotated section 28-41-101(b)(2)(C) specifies that notice publication shall be as provided in Arkansas Code Annotated section 28-1- 112(b)(4) (1987), which mandates mailing a correct notice to all persons whose names and addresses appear in…”
Massey v. Fulks, 373 S.W.3d 903 (Ark. Ct. App. 2010). · cites it 4× “Massey’s argument — that because he was not actually served with the notice after first publication as per Arkansas Code Annotated section 28-40-111(a)(4), he has two years to bring his claim as per Arkansas Code Annotated section 28-50-101(h) — was argued in Dodson and…”
In the Matter of the Est. of David P. Shockley, Tammy Davis & Alice Barclay v. Glenda Bassett, 2021 Ark. App. 326, 634 S.W.3d 787. · cites it 2× “Nor was there any proof that a copy of the notice was served on each heir as required by Ark. Code Ann. § 28-40-111 (a)(4)(A). 1 Glenda and Alice reside in Arkansas, and Tammy resides in Missouri.”
Sharon Marcum v. Robert Hodge, 2022 Ark. App. 497. “In any event, all claims barrable under the provision of subsection (a) of this section shall be barred at the end of five (5) years after the date of the death of the decedent, unless within this period letters have been issued and notice to creditors published as provided by §…”
Ark. Code Ann. § 28-40-111(a): 1 case
Massey v. Fulks, 2011 Ark. 4, 376 S.W.3d 389. “As pertinent here, Arkansas Code Annotated section 28-40-111 provides: (a)(1)(A) Promptly after the letters have been granted on the estate of a deceased person, the personal representative shall cause a notice of his or her appointment to be published stating the date of his or…”
Ark. Code Ann. § 28-40-111(a)(1): 2 cases
Dodson v. Charter Behavioral Health Sys. of Nw. Arkansas, Inc., 983 S.W.2d 98 (Ark. 1998). “In any event, all three of these parties had notice and information regarding their respective claims and defenses well within the six-month period provided for under §§ 28-40-111 and 28-50-101. As a consequence, the purpose of Arkansas's probate-notice provisions were met, and…”
Brasel v. Est. of Harp, 877 S.W.2d 923 (Ark. 1994). “- § 28-40-111(a)(1), (a)(4) (Supp. 1991), and as such should have had two years from publication of notice to creditors in which to file a claim since she did not receive actual notice.”
Ark. Code Ann. § 28-40-111(a)(4): 3 cases
Dodson v. Charter Behavioral Health Sys. of Nw. Arkansas, Inc., 983 S.W.2d 98 (Ark. 1998). “In any event, all three of these parties had notice and information regarding their respective claims and defenses well within the six-month period provided for under §§ 28-40-111 and 28-50-101. As a consequence, the purpose of Arkansas's probate-notice provisions were met, and…”
Bowling v. Spears, 858 S.W.2d 93 (Ark. 1993). “Because the claim of the appellants was not known to or reasonably ascertainable by the administratrix at the time of first publication of notice, reasoned the court, the requirements of Ark. Code Ann. § 28-40-111 (a)(4) (Supp. 1991) concerning notice to creditors known or…”
Massey v. Fulks, 373 S.W.3d 903 (Ark. Ct. App. 2010). “Massey’s argument — that because he was not actually served with the notice after first publication as per Arkansas Code Annotated section 28-40-111(a)(4), he has two years to bring his claim as per Arkansas Code Annotated section 28-50-101(h) — was argued in Dodson and…”
Ark. Code Ann. § 28-40-111(a)(4)(A): 2 cases
Bryant v. Osborn, 2014 Ark. 143. “Appellants note that Arkansas Code Annotated section 28-41-101(b)(2)(C) specifies that notice publication shall be as provided in Arkansas Code Annotated section 28-1- 112(b)(4) (1987), which mandates mailing a correct notice to all persons whose names and addresses appear in…”
Massey v. Fulks, 373 S.W.3d 903 (Ark. Ct. App. 2010). “Massey’s argument — that because he was not actually served with the notice after first publication as per Arkansas Code Annotated section 28-40-111(a)(4), he has two years to bring his claim as per Arkansas Code Annotated section 28-50-101(h) — was argued in Dodson and…”
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