Ark. Code Ann. § 28-48-105 (2026)

Research References

Ark. L. Rev.

Mark James Chaney, Recent Developments: Arkansas Supreme Court Holds the Appointment of a Special Personal Representative to an Estate Is Voidable, but Not Void, upon the Discovery of a Disqualifying Characteristic, 66 Ark. L. Rev. 1145 (2013).

Case Notes

Appeal.

The denial or granting of a petition to remove an executor or administrator, other than a special administrator, is an appealable order. Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994).

Burden of Proof.

Where no evidence or testimony was produced at the hearing to provide any basis for removing the administrator, record before the Supreme Court, consisting solely of the pleadings, did not prove that the probate court committed error as a matter of law in retaining the administrator and holding that alleged conflicts or mismanagement would be cured by appointing a special administrator to pursue appeal of judgment against the estate. Newton County v. West, 288 Ark. 432, 705 S.W.2d 887 (1986).

Where motion was made to have person removed as administrator of estate and probate court responded by appointing a special administrator to appeal court decision adverse to the estate but retained such person as administrator for all other purposes, the burden was on movant to present a record on appeal demonstrating that the probate court's decision was clearly erroneous, and in the absence of that showing, the Supreme Court would not reverse. Newton County v. West, 288 Ark. 432, 705 S.W.2d 887 (1986).

Effect of Removal.

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) subsection (b) of this section 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).

—Retention of Attorneys.

Where the personal representative of the estate of a person killed in a traffic collision contracted with attorneys to file a wrongful death action, the contract did not confer a vested right on the attorneys to carry the death action to a conclusion, and a successor representative could engage other attorneys. Gentry v. Richardson, 228 Ark. 677, 309 S.W.2d 721 (1958).

Beneficiaries may prefer to have independent counsel to protect their interests in a wrongful death suit, but as long as the code provides that the personal representative is the party to bring the action, that party has the absolute right to choose counsel for that purpose. Should the personal representative or chosen council fail to provide adequate representation, application can be made to the probate court to either not approve or disallow the contracts entered into by the representative, and a representative can be removed pursuant to this section if the court finds him unsuitable. Brewer v. Lacefield, 301 Ark. 358, 784 S.W.2d 156 (1990).

—Service of Process.

Service of process in a suit on a special administrator appointed for that purpose is valid though the special administrator is thereafter removed and a general administrator appointed. Nickles v. Wood, 221 Ark. 630, 255 S.W.2d 433 (1953).

Failure to File Account.

It was no excuse for disobedience of a citation issued pursuant to a statute that an administrator had filed an account several years before which the court had not acted upon. Ex parte Pearce, 44 Ark. 509 (1884) (decision under prior law).

Grounds for Removal.

Circuit court did not abuse its discretion in not removing a coexecutor as one of the coexecutors of a decedent's estate, under this section, because (1) although the circuit court found that the coexecutor had made some errors as one of the coexecutors, it also found that the coexecutor was not intentionally attempting to harm the widow; (2) the circuit court did not find that any of the coexecutor's actions endangered the estate property or that they were intended to harm any party; and (3) the circuit court weighed the coexecutor's actions, both positive and negative, and found that, on balance, the positive benefits to the estate outweighed the negative. Taylor v. Woods, 102 Ark. App. 92, 282 S.W.3d 285 (2008), rehearing denied, — Ark. App. —, — S.W.3d —, 2008 Ark. App. LEXIS 625 (Aug. 20, 2008).

Trial court did not clearly err in granting a mother's petition to replace a father as guardian of their 21-year-old son, who had Williams syndrome, because the son needed a guardian who was vigilant in ensuring that his needs were met; there were several occasions where the father delayed or denied the son medical attention. Hoffarth v. Harp, 2009 Ark. App. 240, 303 S.W.3d 96 (2009), rehearing denied, — Ark. App. —, — S.W.3d —, 2009 Ark. App. LEXIS 684 (May 6, 2009), review denied, — Ark. —, — S.W.3d —, 2009 Ark. LEXIS 575 (Sept. 10, 2009).

—Failure Generally.

Where an administrator failed to give bond, failed to receive letters of administration, and generally failed to carry out her duties as an administrator and her health did not permit her to perform these duties, she should have been removed by the court as she was unsuitable and incapable of discharging her trust and had failed to perform the duties imposed by law. Davis v. Adams, 231 Ark. 197, 328 S.W.2d 851 (1959).

—Improper Accounting.

Where an administrator failed to file a satisfactory account, although admonished to do so some thirteen years earlier, and where she had persistently acted in furtherance of her own interests in a manner to deprive her stepchildren of benefits, she should be removed. Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975).

—Not Shown.

Although the personal representative may not have done everything he should have done to keep the estate's assets properly maintained, and had made partial distribution without court approval as required by statute, since the right people had received the money and could reimburse it if necessary, insufficient grounds for removal pursuant to subdivision (a)(1) of this section were shown. Jones v. Balentine, 44 Ark. App. 62, 866 S.W.2d 829 (1993).

—Removal Not Required.

There was no error in the probate judge's refusal to find any breach of fiduciary duty that would require removal of the executrix. Morris v. Cullipher, 306 Ark. 646, 816 S.W.2d 878 (1991).

—Unable to Perform.

Where the evidence showed that two sisters' joint guardianship of a third sister's estate was marked by continual quarreling and bickering, the best interests of ward demanded termination of the guardianship, since the guardians in such circumstances were incapable of satisfactorily performing the duties imposed upon them by law and the courts. Omohundro v. Erhart, 228 Ark. 910, 311 S.W.2d 309 (1958).

Instructions to Jury.

In a will contest in which a trust was involved, instructions which told the jury that the testator could appoint whom she pleased for executor of her will and also that probate court had right to remove executor and appoint another in proper case were not erroneous. Bocquin v. Theurer, 133 Ark. 448, 202 S.W. 845 (1918), superseded by statute as stated in, Priola v. Priola, 237 Ark. 798, 377 S.W.2d 29 (Ark. 1964) (decision under prior law).

Interested Persons.

Where the decedent died testate and left them nothing under the will, the decedent's surviving children were not heirs and were not creditors, and were thus not “interested persons” as that term is used in §§ 28-1-102(a)(11), 28-48-107(a), and subdivision (a)(2) of this section. Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994).

Jurisdiction.

By the service of a citation, a probate court obtained jurisdiction of the person of an administrator, and any action thereafter revoking his letters, restating his accounts, rejecting former settlements, or ordering distribution of money on hand was within the jurisdiction of the court and not void. Ex parte Pearce, 44 Ark. 509 (1884) (decision under prior law).

Removal Order.

This section authorizes the removal of a personal representative on the court's own motion, provided the removal order complies otherwise with this section's requirements. In re Vesa, 319 Ark. 574, 892 S.W.2d 491 (1995).

Review.

Decision not to remove the personal representatives was not clearly erroneous, because the appellate court could not say that the circuit courts decision had left a definite and firm conviction that a mistake had been committed, when the circuit court admonished the personal representatives to put the widow's interests above their own since they owed her a fiduciary duty, and the circuit court understood that there was animosity but noted that there would be court supervision of the probate process. Ashley v. Ashley, 2012 Ark. App. 236, 405 S.W.3d 419 (2012).

Cited: Cude v. Cude, 286 Ark. 383, 691 S.W.2d 866 (1985); Jones v. Jones, 301 Ark. 367, 784 S.W.2d 161 (1990); White v. Welsh, 323 Ark. 479, 915 S.W.2d 274 (1996); Schenebeck v. Schenebeck, 329 Ark. 198, 947 S.W.2d 367 (1997); Holmes v. McClendon, 349 Ark. 162, 76 S.W.3d 836 (2002).