Ark. Code Ann. § 28-48-208 (2026)
Enforcement of obligations
- The execution of the bond of a personal representative shall be deemed an appearance by the surety in the proceeding for the administration of the estate, but he or she shall be entitled to receive notices of all hearings with respect to his or her liability under the bond.
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- Subject to the provisions of subsection (c) of this section, upon breach of the obligation of the bond of the personal representative and after notice to the obligors on the bond and to such other persons as the court may direct, the court may summarily as a part of the proceeding for the administration of the estate determine the damages, enter judgment therefor against the obligors on the bond, and by appropriate process enforce the collection thereof.
- The determination and enforcement may be made by the court upon its own motion or upon application of a successor personal representative, or of any other interested person.
- The court may hear the application at the time of settling the accounts of the defaulting personal representative or at such other time as the court may direct.
- Damages shall be assessed in behalf of all interested persons and may be paid over to the successor or other nondefaulting personal representative and distributed as other assets held by the personal representative in his or her official capacity.
- The same remedies shall be available against a defaulting personal representative irrespective of whether there is a bond.
- If the estate is already distributed, or if for any reason the procedure to recover on the bond provided in subsection (b) of this section is inadequate, or at his or her election, an interested person may bring a separate suit in a court of competent jurisdiction in his or her own behalf for damages suffered by him or her by reason of the default of the personal representative.
- The bond of the personal representative shall not be void upon the first recovery but may be proceeded upon from time to time until the whole penalty is exhausted.
History. Acts 1949, No. 140, § 90; A.S.A. 1947, § 62-2221.
Case Notes
Accrual of Action on Bond.
The statute of limitations did not begin to run in favor of a surety on a deceased guardian's bond until there was a final settlement of the guardian's accounts in the probate court and an order to pay over the balance due the ward. State ex rel. Davis v. Buck, 63 Ark. 218, 37 S.W. 881 (1896); Rhea v. Bagley, 66 Ark. 93, 49 S.W. 492 (1899) (decisions under prior law).
Upon termination of the guardianship relation and an adjustment of the accounts and establishment of the amount due from the guardian, the cause of action accrued at once, if there was some person capable of suing; if there was no such person, then the cause of action was postponed until there was someone capable of suing. Wallace v. Swepston, 74 Ark. 520, 86 S.W. 398 (1905) (decision under prior law).
Liability of Sureties.
Where a guardian secured a new bond, but there was no discharge of old bond, both sets of bondsmen could have been liable. Beakley v. Cunningham, 112 Ark. 71, 165 S.W. 259 (1914) (decision under prior law).
Order of Distribution.
An order of a probate court ascertaining amount of funds in hands of administrator and directing him to pay the funds into court for benefit of heirs, without naming them, was not an order of distribution sufficient to authorize heirs to sue on administrator's bond to recover funds for their own use. Ferguson v. Carr, 85 Ark. 246, 107 S.W. 1177 (1908) (decision under prior law).
Prerequisite to Suit.
A suit could not be brought on a bond until there was an order of the probate court to pay over. Connelly v. Weatherford, 33 Ark. 658 (1878); Vance v. Beattie, 35 Ark. 93 (1879); State ex rel. Davis v. Buck, 63 Ark. 218, 37 S.W. 881 (1896); Beakley v. Cunningham, 112 Ark. 71, 165 S.W. 259 (1914) (decisions under prior law).
The settlement by the probate court of a deceased guardian's account was sufficient to support an action against his surety for the amount found due, though no order of payment was made. Smith v. Smithson, 48 Ark. 261, 3 S.W. 49 (1887) (decision under prior law).
The rule that a cause of action against a surety on a guardian's bond did not accrue until the amount of the liability was established by an order of the probate court and an order was made by such court directing the amount to be paid over was limited, so far as the prerequisite of an order to pay over was concerned, to settlements which were not final and where the guardianship was left continuing. Wallace v. Swepston, 74 Ark. 520, 86 S.W. 398 (1905) (decision under prior law).
An action on a bond was not maintainable until the probate court had adjusted the accounts of the administrator and ordered him to pay over the amount found to be in his hands. Planters' Mut. Ins. Ass'n v. Harris, 96 Ark. 222, 131 S.W. 949 (1910) (decision under prior law).
Revivor.
Statute for reviving judgment against administrators held not to apply to probate judgments. Rose v. Thompson, 36 Ark. 254, 1880 Ark. LEXIS 90 (1880), overruled in part, Price v. Price, 253 Ark. 1124, 491 S.W.2d 793 (1973) (decision under prior law).
Rights of Distributees.
A distributee of an estate was not entitled to bring an action against the administrator for waste or conversion of the assets without showing that the claims of creditors had been satisfied; however, if judgment was obtained, the amount recovered should have been paid to the administrator in succession, to be distributed under direction of the probate court. Brice v. Taylor, 51 Ark. 75, 9 S.W. 854 (1888) (decision under prior law).
The failure of administrator to comply with an order of distribution was such a breach of his bond as justified action by a distributee. Ferguson v. Carr, 85 Ark. 246, 107 S.W. 1177 (1908) (decision under prior law).
Subrogation.
Sureties upon a deceased guardian's bond who had been forced to make good his default would be subrogated to the remedy of the ward against the guardian's homestead. State ex rel. Luck v. Atkins, 53 Ark. 303, 13 S.W. 1097 (1890) (decision under prior law).