Ark. Code Ann. § 28-48-108 (2026)

Research References

Ark. L. Rev.

Analyzing the Estate, 21 Ark. L. Rev. 1.

Case Notes

In General.

This section provides formulas to compensate personal representatives and attorneys, but does not limit the type of allowable administrative claims. Eddins v. Style Optics, Inc., 71 Ark. App. 102, 35 S.W.3d 315 (2000).

Attorney's Fees.

The fact that an administrator was authorized by a probate court to institute a suit to recover in proper forum an amount due the estate and employ attorneys, did not give the court in which the suit was instituted jurisdiction to distribute the attorney's fees; rather, the entire fund recovered became the property of the estate to be administered by the probate court. Gilleylen v. Hallman, 141 Ark. 52, 216 S.W. 15 (1919) (decision under prior law).

Where the value of the personalty plus real property was $1,484,200, the attorney's fee of $22,500 was not excessive. Sloss v. Farmers Bank & Trust Co., 290 Ark. 304, 719 S.W.2d 273 (1986).

Amount of attorneys' fees awarded held proper. Adams v. West, 293 Ark. 192, 736 S.W.2d 4 (1987).

This section authorizes the probate court to increase or decrease legal fees in accordance with the value of legal services rendered. Nabers v. Estate of Setser, 310 Ark. 194, 833 S.W.2d 375 (1992).

Award of attorney fees to siblings' brother for legal work on their mother's estate was appropriate because the trial court's order recited the factors taken into consideration in making the award, which was approximately one-third less than the amount authorized by this section. Rollins v. Rollins, 94 Ark. App. 65, 224 S.W.3d 554 (2006).

Fees awarded to an estate's attorney from a testator's son were not excessive under subdivision (d)(3) of this section because the attorney's statement set forth, in detail, the work required to address the son's seemingly endless actions that delayed the proceeding and prevented an orderly distribution of the estate; the son filed numerous, unfounded motions and consistently opposed the actions taken by the executor and other heirs. Shafer v. Estate of Shafer, 2012 Ark. App. 177, 393 S.W.3d 565 (2012).

It was within the trial court's discretion to award attorney's fees to a successor trustee for services that were rendered in connection with the administration of an estate where it was apparent that there was a dispute regarding distribution that would require adjudication by a court, and the successor trustee had litigated whether certain items of real property were trust assets and also the efficacy of the trust documents created by the wife after her husband's death. Cason v. Lambert, 2015 Ark. App. 41, 454 S.W.3d 250 (2015).

—Appeals.

Where those appealing from an order of the probate court allowing attorney's fees failed to bring up the testimony heard in the probate court, the Supreme Court presumed the court's action to have been correct. Brown v. Brown, 222 Ark. 832, 262 S.W.2d 896 (1953).

—Authorization of Employment.

In an order to entitle an attorney to retain a commission out of moneys of an estate collected under the employment of the administrator, it was necessary to show that the probate court authorized the employment. Turner v. Tapscott, 30 Ark. 312 (1874), overruled, Pike v. Thomas, 62 Ark. 223, 35 S.W. 212 (1896) (decision under prior law).

This section specifically authorizes the personal representative to employ legal counsel and contemplates that counsel's fee will be paid by the estate, not the personal representative. Alexander v. First Nat'l Bank, 278 Ark. 406, 646 S.W.2d 684 (1983).

Probate courts can authorize the administrator to employ counsel in the necessary protection of the estate in his hands and may allow fees for such services rendered the administrator to protect and preserve the estate; however, the court has no jurisdiction to award fees for services rendered to an individual beneficiary. Croft v. Clark, 24 Ark. App. 16, 748 S.W.2d 149 (1988).

—Category.

An attorney's fee was held in the same category as necessary expenses and, when allowed, should take its place in the account current, with the probate courts having jurisdiction. Kenyon v. Gregory, 127 Ark. 525, 192 S.W. 887 (1917) (decision under prior law).

—Contracts Not Binding.

Attorneys were not deprived of a property right without due process of law where their contract of employment with an administrator for the purpose of filing wrongful death action was terminated by probate court without notice to them or opportunity to be heard after appointment of successor administrator, since the order of court was purely prospective in operation and did not involve denial of due process. Gentry v. Richardson, 228 Ark. 677, 309 S.W.2d 721 (1958).

A party has no right to make a contract for legal services which is binding on a court; however a court has the power and jurisdiction to approve a claim for legal services made by a party where the court feels the claim is justified. Black v. Thompson, 237 Ark. 304, 372 S.W.2d 593 (1963).

—Discretion of Court.

Where there was no order of the probate court authorizing an administrator to employ an attorney, it was in the discretion of the court to allow him credit for fees paid to an attorney, and its order was conclusive where no abuse was shown. Reynolds v. Canal & Banking Co., 30 Ark. 520 (1875) (decision under prior law).

An attorneys' fees award which was less than the statutory standard set out in this section was not an abuse of court's discretion where the bulk of the services performed by the attorneys in the probate proceedings were done on behalf of the executor in its individual capacity to obtain credits for tax payments made out of the in-state assets of the estate. Estate of Torian v. Smith, 263 Ark. 304, 564 S.W.2d 521 (1978), cert. denied, First Nat'l Bank v. Smith, 439 U.S. 883, 99 S. Ct. 223, 58 L. Ed. 2d 195 (1978).

Where executor's position was in derogation of the interests of the estate as a whole, the trial court abused its discretion in ordering the attorneys' fees to be paid from the assets of the estate. Croft v. Clark, 24 Ark. App. 16, 748 S.W.2d 149 (1988).

The probate judge has authority to approve legal fees in excess of the statutory legal fees under subsection (d) and to approve accounting fees under subsection (e). Morris v. Cullipher, 306 Ark. 646, 816 S.W.2d 878 (1991).

No abuse of discretion was shown by the trial court in the allowance of legal fees. Nabers v. Estate of Setser, 310 Ark. 194, 833 S.W.2d 375 (1992).

—Evidence.

In the absence of proof that executor and attorney fees are unreasonable or in violation of this section, such fees will be affirmed. Swaffar v. Swaffar, 327 Ark. 235, 938 S.W.2d 552 (1997), cert. denied, 522 U.S. 820, 118 S. Ct. 73 (1997).

—Liability of Representative.

An administrator could not escape personal liability for an attorney's fee by showing that the court did not authorize the employment of the attorney. Tucker v. Grace, 61 Ark. 410, 33 S.W. 530 (1895) (decision under prior law).

—Not Allowed.

An administrator had no power to bind an estate by an agreement to convey to an attorney a part of the estate as compensation for his professional services in defending an action for the possession of land of the estate. Bryan v. Craig, 64 Ark. 438, 44 S.W. 348 (1897) (decision under prior law).

An attorney's fee was not allowed an administrator for resisting a suit to compel him to do his duty. Jacoway v. Hall, 67 Ark. 340, 55 S.W. 12 (1900) (decision under prior law).

A probate court was without jurisdiction to allow an attorney for heirs a fee out of assets of an estate for resisting a sale of lands to pay debts. Paget v. Brogan, 67 Ark. 522, 55 S.W. 938 (1900) (decision under prior law).

Although the statutory fee schedule was not an inflexible maximum where a fee of $2,000 for the preparation of estate tax returns was covered by a separate agreement with an individual as beneficiary of the will rather than as executor and it was not authorized or approved by the probate court, the allowance to attorney of fee for administration work in connection with estate in excess of the fee schedule was not justified and attorney was not entitled to the $2,000 for preparation of estate tax return. Warfield v. Burnside, 240 Ark. 316, 399 S.W.2d 676 (1966).

—Recourse to Equity.

Where a portion of the heirs and distributees employed an attorney to contest the settlement of the executor, the probate court had no power to direct the payment of the attorney's fee by the executor out of the residuary fund of the estate; if it was a proper case for contribution by all interested in the estate, the remedy was in chancery only. McPaxton v. Dickson, 15 Ark. (2 Barber) 97 (1854) (decision under prior law).

An attorney could, in equity, subject the assets of an estate to the payment of his fee where his services were of value to the estate and the administrator was insolvent. Pike v. Thomas, 65 Ark. 437, 47 S.W. 110 (1898) (decision under prior law).

Expenses.

An administrator was held to be a trustee and could not profit on claims against the estate; rather, he would be allowed only what he paid for them, plus interest. Wolf v. Banks, 41 Ark. 104 (1883) (decision under prior law).

An executor or administrator was entitled to be indemnified out of the assets of the estate for expenditures made or liabilities incurred in the legitimate exercise of his trust. State ex rel. Altheimer v. Hunter, 56 Ark. 159, 19 S.W. 496 (1892) (decision under prior law).

—Funeral.

Although an executor voluntarily paid the funeral expenses of the deceased, he was entitled to credit therefor as expenses incident to administration of the estate. Holt v. Cassinelli, 203 Ark. 1138, 160 S.W.2d 877 (1942) (decision under prior law).

—Insurance Premiums.

Allowance of insurance premiums paid by a personal representative was justified. Holland v. Doke, 135 Ark. 372, 205 S.W. 648 (1918) (decision under prior law).

—Personal Expenditures.

An administrator was entitled to his advances for the estate plus six percent simple interest. Trimble v. James, 40 Ark. 393 (1883) (decision under prior law).

—Preservation of Estate.

Money expended by an administrator in the preservation of an estate could be allowed as expenses of administration on final settlement, but a representative of a deceased administrator could not collect expenses of administration from an estate unless there had been an accounting. Smith v. Davis, 51 Ark. 415, 11 S.W. 681 (1889) (decision under prior law).

An executor not entitled to compensation under a will was entitled to allowance for legitimate expenses incurred in the care and management of the estate. Hill v. Zanone, 184 Ark. 594, 43 S.W.2d 238 (1931) (decision under prior law).

—Statement Required.

An administrator was entitled to ordinary expenses, but needed to file an itemized statement showing the necessity therefor. Scroggins v. Osborn Co., 181 Ark. 424, 26 S.W.2d 95 (1930) (decision under prior law).

—Traveling.

It was not error to allow an administrator necessary traveling expenses. Holland v. Doke, 135 Ark. 372, 205 S.W. 648 (1918) (decision under prior law).

Personal Representatives' Fees.

Former statute fixed the compensation of an administrator for his entire trouble and risk in attending to the settlement of an estate, and not merely for collecting its debts. The probate judge could allow as such compensation the maximum percent upon the value of the estate fixed by statute, or he could, in the exercise of sound discretion, allow less than the maximum, according to the circumstances of the case. Ex parte Bell, 14 Ark. (1 Barber) 76 (1853) (decision under prior law).

A probate court may fix the compensation to be allowed an administrator, but it cannot exceed the rates set by statute. Souter v. Fly, 182 Ark. 791, 33 S.W.2d 408 (1931) (decision under prior law).

Where the successor administrator collected rents and made disbursements, and there was no evidence that it made any discretionary or time-consuming judgments with respect to the management of the real estate, there was no evidence of “substantial services” having been performed; therefore, the successor administrator was not entitled to extra fees in excess of the listed percentages. Sloss v. Farmers Bank & Trust Co., 290 Ark. 304, 719 S.W.2d 273 (1986).

Circuit court did not abuse its discretion in allowing a coexecutor of a decedent's estate a $5000 executor's fee, under subsection (c) of this section, because the circuit court considered the proper factors because (1) the coexecutor was found not to have acted so as to intentionally harm the widow and to have provided valuable services to the estate; (2) the circuit court found that the undervaluation of the estate property could have harmed the heirs in terms of estate taxes and that the coexecutor's actions (such as the construction of the will) benefitted some of the heirs to the detriment of other heirs; and (3) the circuit court found that a higher fee was warranted. 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).

Fees awarded to an executor from a testator's son were not excessive under subsection (a) of this section because the executor, who coordinated a judicial sale of the real and personal property while struggling with the behavior of the son, testified about the necessity of the services, the lack of duplication, and the huge role that the son played in delaying the closing of the estate. Shafer v. Estate of Shafer, 2012 Ark. App. 177, 393 S.W.3d 565 (2012).

—Allowance on Appeal.

Upon appeal from a probate court's confirmation of an administrator's account of settlement, he could be allowed commissions in the circuit court, though he credited himself with none and none were allowed by the probate court. Williams v. Cubage, 36 Ark. 307 (1880) (decision under prior law).

—Contracts.

An administrator could not bind an estate by contract to pay his fee. Pike v. Thomas, 62 Ark. 223, 35 S.W. 212 (1896) (decision under prior law).

—Credit for Uncollectible Items.

The destruction or larceny of notes did not entitle the administrator to credit for them; they could still be collected by a suit for lost instruments. Williams v. Cubage, 36 Ark. 307 (1880) (decision under prior law).

The fact that an account current was approved without allowing credit for uncollected items did not constitute a final adjudication that such items were collectible, nor preclude an order allowing credit therefor when it was found that the items were uncollectible. Holland v. Doke, 135 Ark. 372, 205 S.W. 648 (1918) (decision under prior law).

—Determination.

Where evidence was to the effect that executor operated testator's department store for about one year during which time about $158,000 passed through its hands and there was hardly a day during a two-year period that executor did not perform some duty in connection with the administration of the estate and where the personal property of the estate was valued at $77,977.98 and the real estate at $66,000, an executor's fee of $5,000 was held to be not excessive. However, on rehearing where it was established that the actual operation of the store was under the management of third persons and that the work by the executor was not substantially greater than that usually done by personal representatives the fee was reduced to $2,489.34 as to the personalty and $250 as to the realty. Saad v. Arkansas Trust Co., 225 Ark. 33, 280 S.W.2d 894 (1955).

—Discounting Claims.

An administrator was not allowed to profit by discounting claims. Jacoway v. Hall, 67 Ark. 340, 55 S.W. 12 (1900) (decision under prior law).

—Discretion of Court.

Allowance of commissions to executor, for his risk and trouble and for improvements put on testator's real estate, was a matter within the jurisdiction of the probate court, and its judgment was conclusive in the absence of showing fraud in the allowance. Ringgold v. Stone, 20 Ark. (7 Barber) 526 (1859) (decision under prior law).

It was within the discretion of the probate court to allow the maximum compensation for services as an administrator, and this discretion would not be disturbed unless abused. Triplett v. Chipman, 153 Ark. 12, 240 S.W. 23 (1922) (decision under prior law).

A trial court did not abuse its discretionary authority in allowing only a $4,000 executor's fee where a five-year delay in administration of an Arkansas estate was primarily due to the executor's initiating the original probate in Mississippi in disregard of advice of counsel. Estate of Torian v. Smith, 263 Ark. 304, 564 S.W.2d 521 (1978), cert. denied, First Nat'l Bank v. Smith, 439 U.S. 883, 99 S. Ct. 223, 58 L. Ed. 2d 195 (1978).

—Foreclosure of Mortgage.

An administrator was not entitled to a commission on the proceeds of a sale of property belonging to his intestate made under a decree in chancery foreclosing a mortgage. Reynolds v. Canal & Banking Co., 30 Ark. 520 (1875) (decision under prior law).

—Incorporation by Reference.

Where a will provided that the executor should be allowed such fees as by law are allowed to administrators and executors, the executor was entitled to the fees allowed by statute. State Nat'l Bank v. Fisher, 186 Ark. 42, 52 S.W.2d 51 (1932) (decision under prior law).

—Limitation in Wills.

A testator could limit the executor's compensation by terms of his will, as statutory provisions applied only when a will did not otherwise provide. Gordon v. Greening, 121 Ark. 617, 182 S.W. 272 (1916) (decision under prior law).

—Not Allowed.

If nothing passed through an administrator's hands, he was entitled to no fees. Adamson v. Parker, 74 Ark. 168, 85 S.W. 239 (1905) (decision under prior law).

The entitlement of an administrator to compensation was questionable where she had not made a proper accounting, where the real property had not become an asset in the hands of the personal representative, where she had not been authorized to operate a business, and by the fact that she would receive and retain all the personal estate. Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975).

—Widow.

Where a widow was the administrator of the estate, it did not affect her right to receive commissions. Sharp v. Himes, 129 Ark. 327, 196 S.W. 131 (1917) (decision under prior law).

A widow was entitled to only $3,000 as compensation for her services as executor, pursuant to this section, rather than the statutory maximum of $49,000, which she computed based on an estate in excess of $1,770,000, since the evidence showed that she was 87 years old, in poor health, and that her brother, an attorney and accountant, largely performed the work done. Hanna v. Hanna, 273 Ark. 399, 619 S.W.2d 655 (1981).

Cited: City of Hot Springs v. Creviston, 288 Ark. 286, 705 S.W.2d 415 (1986); Amant v. Callahan, 341 Ark. 857, 20 S.W.3d 896 (2000).