Ark. Code Ann. § 28-49-109 (2026)
Fraudulent conveyances
- A personal representative of a grantor who has fraudulently conveyed or transferred any interest in real or personal property with intent to delay his or her creditors in the collection of their just demands may apply to a court of competent jurisdiction to have the conveyance or transfer set aside and cancelled and to recover the property, or the value thereof, for the use and benefit of all persons having an interest in the estate of the fraudulent grantor.
- No property so conveyed or transferred shall be taken from, nor shall any recovery be had from, any person who acquired any legal interest therein for a valuable consideration in good faith and without notice.
History. Acts 1949, No. 140, § 95; A.S.A. 1947, § 62-2402.
Research References
Ark. L. Rev.
Fraudulent Conveyances in Arkansas, 19 Ark. L. Rev. 149.
Case Notes
Allegations in Complaint.
An administrator was not entitled to recover real property under this section where the complaint did not contain the allegation that defendants had obtained the property by fraud and undue influence upon the decedent. Cranna v. Long, 225 Ark. 153, 279 S.W.2d 828 (1955).
Determinative Factors.
The Supreme Court of Arkansas has recognized certain indicia of fraudulent intent, including insolvency or indebtedness of the transferor, inadequate or fictitious consideration, retention of property by the debtor, the pendency or threat of litigation, secrecy or concealment, and the employment of unusual business practices; transfers to a debtor's family members are particularly suspect. United States v. Bryant, 15 F.3d 756 (8th Cir. 1994).
A couple's conveyance of substantially all their real and personal property to their children in trust, for nominal consideration, when litigation over substantial tax deficiencies and penalties was pending, exhibited all or virtually all of the indicia of fraud recognized in Arkansas; the claim by the father that he had a heart attack in 1985 and the conveyance was motivated by bona fide estate planning consideration was inadequate to avoid summary judgment in favor of the government under the well established principles of Arkansas fraudulent conveyance law. United States v. Bryant, 15 F.3d 756 (8th Cir. 1994).
Administratrix, wife of the decedent, who sought to divorce the decedent but reconciled shortly before the decedent's death, convinced the trial court the monies in a transfer-on-death account (TOD account), naming children from the decedent's former marriage as the beneficiaries, was a fraudulent transfer; if the TOD account was owned by both the decedent and the administratrix, the administratrix could claim dower rights in the property, but decedent's children presented compelling facts that the account was separate property owned by the decedent, and the trial court erred in granting summary judgment in favor of the administratrix. Ginsburg v. Ginsburg, 353 Ark. 816, 120 S.W.3d 567 (2003).
Jurisdiction.
In creditor's action to set aside an alleged fraudulent conveyance arising from a transfer-on-death (TOD) beneficiary designation, the circuit court erroneously ruled that the probate court had exclusive jurisdiction and that the circuit court lacked jurisdiction; under Ark. Const. Amend. 80, § 6, and the fact that, under the Uniform Transfer on Death Security Registration Act, § 28-14-101 et seq., the money transferred from the TOD account did not become part of the estate, the circuit court clearly had jurisdiction. Heritage Props. Ltd. P'ship v. Walt & Lee Keenihan Found., Inc., 2019 Ark. 371, 584 S.W.3d 685 (2019).
Parties to Action.
Where the administrator of an estate would not bring suit to set aside a fraudulent conveyance, it was proper for the widow to bring it and join the administrator as a defendant. Rush v. Smith, 239 Ark. 874, 394 S.W.2d 613 (1965).
Personal Representative as Grantee.
Where an administrator was the fraudulent grantee of the decedent, her husband, she held the property in trust for the heirs at law, and the limitations did not begin to run against a suit by them for its recovery until she repudiated the trust. Bumpass v. McGehee, 247 F. 306 (8th Cir. 1917) (decision under prior law).
Where the executor of an alleged fraudulent grantor was the grantee and refused to bring a suit to set the deed aside, the heirs at law of the grantor had the right to bring it, making the executor a defendant. Moore v. Waldstein, 74 Ark. 273, 85 S.W. 416 (1905) (decision under prior law).
Standing.
In creditor's action to set aside an alleged fraudulent conveyance arising from a transfer-on-death (TOD) beneficiary designation, the transferee's argument failed that the personal representative of the estate and not the creditor had standing for such an action; while there are procedures within the probate code that would allow for the challenge of an alleged fraudulent conveyance, section 28-14-109(b) concerning TODs plainly allows creditors to pursue their claims against transferees under other Arkansas laws, and thus a creditor also may pursue its claim under the Fraudulent Transfers Act, § 4-59-201 et seq.Heritage Props. Ltd. P'ship v. Walt & Lee Keenihan Found., Inc., 2019 Ark. 371, 584 S.W.3d 685 (2019) (decided under pre-2017 version of § 4-59-201 et seq.).
Validity of Deed.
Although a deceased executed a deed with the intent to defraud his creditors, the deed did not take effect until delivery and when it was not delivered until a subsequent time, when there were no creditors of the deceased who could suffer by the transfer, the deed was not void. Deniston v. Phillips, 121 Ark. 550, 181 S.W. 911 (1916) (decision under prior law).
Cited: Dereuisseaux v. Bell, 238 Ark. 60, 378 S.W.2d 208 (1964).