Ark. Code Ann. § 28-48-101 (2020)
Persons entitled to domiciliary letters
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Domiciliary letters testamentary or of general administration may be granted to one (1) or more of the natural or corporate persons mentioned in this section who are not disqualified, in the following order of priority:
- To the executor or executors nominated in the will;
- To the surviving spouse, or his or her nominee, upon petition filed during a period of thirty (30) days after the death of the decedent;
- To one (1) or more of the persons entitled to a distributive share of the estate, or his or her nominee, as the court in its discretion may determine, if application for letters is made within forty (40) days after the death of the decedent, in case there is a surviving spouse and, if no surviving spouse, within thirty (30) days after the death of the decedent; and
- To any other qualified person.
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A person is not qualified to serve as domiciliary personal representative if the person is:
- Under eighteen (18) years of age;
- Of unsound mind;
- A convicted and unpardoned felon, either under the laws of the United States or of any state or territory of the United States;
- A corporation not authorized to act as fiduciary in this state;
- A person whom the court finds unsuitable; or
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- A natural person who is a nonresident of this state, unless he or she shall have appointed the clerk of the court in which the proceedings are pending, and the clerk's successors in office, or some person residing in the county of probate and approved by the court, as agent to accept service of process and notice in all actions and proceedings with respect to the estate.
- If a person other than the clerk who has been appointed process agent dies, becomes incompetent, or removes from the county, the clerk and his or her successors in office shall become the process agent.
- The appointment or agency may be revoked only upon the appointment of a qualified substitute agent.
- Upon the service of any process or notice on the agent, he or she shall immediately transmit the process or notice to the personal representative by registered or certified mail, requesting a return receipt.
History. Acts 1949, No. 140, § 70; 1975, No. 620, § 7; A.S.A. 1947, § 62-2201; Acts 2015, No. 844, § 1.
Amendments. The 2015 amendment, in the introductory language of (b), substituted “A person is not” for “No person is” and “if the person” for “who”; and substituted “eighteen (18)” for “twenty-one (21)” in (b)(1).
Research References
Ark. L. Rev.
Notices Under the Probate Code, 8 Ark. L. Rev. 324.
Case Notes
Absence in Military Service.
A chancery court's refusal to remove testamentary trustee on ground of trustee's absence in the military service, where it appeared he was not neglecting the trust estate, was not an abuse of discretion. Blumenstiel v. Morris, 207 Ark. 244, 180 S.W.2d 107 (1944) (decision under prior law).
Discretion of Court.
This section does not make it compulsory on a court to make an appointment in the order of priority mentioned, and for sufficient cause and in unusual circumstances, as where the applicant of that class is not qualified or, in the court's opinion, will not best manage and improve the estate, the court may refuse an appointment though the applicant is otherwise qualified. Burnett v. United States Fid. & Guar. Co., 228 Ark. 857, 310 S.W.2d 806 (1958); Knight v. Worthen Bank & Trust Co., 233 Ark. 465, 345 S.W.2d 361 (1961).
Although a court is not bound to appoint from the highest priority nominees if it finds sufficient cause or unusual circumstances, in the absence of unusual circumstances or sufficient cause, it is the duty of the court to follow the statutes such as this section as set out by the General Assembly. McEntire v. McEntire, 265 Ark. 260, 577 S.W.2d 607 (1979).
Evidence of Refusal.
Where two or more persons are named as executors, the renunciation or refusal of one to join or take upon himself the execution of a will cannot be evidenced by acts in pais, but must be shown by matter of record. Newton v. Cocke, 10 Ark. (5 English) 169 (1849) (decision under prior law).
Personal representation discharged and released the estate from her right to seek appointment that she otherwise had pursuant to the probate code and the terms of the will. Green v. McAuley, 59 Ark. App. 114, 953 S.W.2d 66 (1997).
Father as Administrator.
Father of minor child killed in automobile accident though divorced was qualified to act as administrator of child where mother who had custody was permanently injured in same accident. Smith v. Rudolph, 221 Ark. 900, 256 S.W.2d 736 (1953).
Grandmother as Administratrix.
Paternal grandmother of decedent was qualified to serve as administratrix even though she was not entitled to a distributive share, because she had been nominated by persons who were. Wisdom v. McBride, 311 Ark. 492, 845 S.W.2d 6 (1993).
Law Applicable to Administrator.
An administrator cum testamento annexo is liable to the same provisions of the law as other administrators, except that he distributes the estate according to the will. Whitlow v. Patterson, 195 Ark. 173, 112 S.W.2d 35 (1937) (decision under prior law).
Minor Nominating Administrator.
A nineteen-year-old widow, although disqualified to serve as administrator of her deceased husband's estate, was not precluded from the right to nominate an administrator. Brod v. Brod, 227 Ark. 723, 301 S.W.2d 448, 64 A.L.R.2d 1147 (1957).
Preferential Right of Creditor.
Where a widow failed or refused to administer the estate of her deceased husband, a creditor had a preferential right to move for the appointment of an administrator. Lineback v. Howerton, 181 Ark. 433, 26 S.W.2d 74 (1930) (decision under prior law).
Priority.
Decedent's father and the decedent's uncle, who was the nominee of his mother, shared equal priority as nominees under (a)(3). In re Estate of Robinson, 36 Ark. App. 1, 816 S.W.2d 896 (1991).
Qualifications of Appointee.
Persons named as a preferred class are subject to the conditions that an administrator must be qualified and must, in the opinion of the court, be the person who can best manage and improve an estate. Woodruff v. Miller, 209 Ark. 759, 192 S.W.2d 527 (1946) (decision under prior law).
Appointment of an unpardoned felon as a personal representative was voidable, rather than void ab initio, because (1) the court or parties did not know the personal representative was unqualified, so the court had jurisdiction to appoint the personal representative under §§ 28-48-101 to 28-48-103, and (2) another was appointed once the personal representative's disqualification was known. In re Estate of L.C. Taylor v. MCSA, LLC, 2013 Ark. 429, 430 S.W.3d 120 (2013).
Appointment of an unpardoned felon as a personal representative was voidable, rather than void ab initio, because (1) § 28-1-115(b) states that no vacation of a probate court order affects a prior act, (2) § 28-48-105(b) states that removing a personal representative does not invalidate prior official acts, and (3) § 28-48-102(d)(2) also provides that a personal representative's acts before removal are valid. In re Estate of L.C. Taylor v. MCSA, LLC, 2013 Ark. 429, 430 S.W.3d 120 (2013).
Votes for Administrator.
Trial court should not weigh votes of distributees for administrator of an estate in the order of descent, as prescribed in § 28-9-214, but even if it did so, if the trial court were to find a tie-vote for administrator of an estate at the first level of priority, it would be logical to proceed to the next level to break the tie. Wisdom v. McBride, 311 Ark. 492, 845 S.W.2d 6 (1993).
Cited: Sides v. Haynes, 181 F. Supp. 889 (W.D. Ark. 1960); Roberson v. Hamilton, 240 Ark. 898, 405 S.W.2d 253 (1966); Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991); In re Vesa, 319 Ark. 574, 892 S.W.2d 491 (1995).