1 Overview — what makes Arkansas probate different
Arkansas probate is governed by Title 28 of the Arkansas Code (Wills, Estates, and Fiduciary Relationships), accessible at the Justia mirror of Arkansas Code Title 28 and through the Arkansas Judiciary's official forms at arcourts.gov. Probate is handled by the Circuit Court sitting in probate jurisdiction in each of Arkansas's 75 counties — Arkansas does not have separate dedicated Probate Courts. Six features distinguish Arkansas from every other state in this guide series.
First: Dower and curtesy still active. Arkansas is one of a tiny handful of states that still actively applies dower and curtesy rights under Ark. Code §§ 28-11-301, 28-11-305, and 28-11-307. These are guaranteed property rights for the surviving spouse that no will can eliminate — you cannot completely disinherit a spouse in Arkansas. Whether or not there's a will: with children surviving, the spouse receives a life estate in one-third of all real property the decedent owned during the marriage, plus one-third of personal property outright. With no children, the spouse receives one-half of real property in fee simple and one-half of personal property outright. These rights attach to all real estate owned at any time during the marriage, including land the decedent may have sold before death.
Second: $100,000 small estate affidavit covers real property. Arkansas's small estate affidavit (Ark. Code § 28-41-101) is one of the most powerful in the country because: (a) the threshold is $100,000 — one of the highest; and (b) unlike most states (where the affidavit only covers personal property), Arkansas allows real property to be transferred through the affidavit process. The value is calculated net of encumbrances, excluding the homestead and statutory allowances. If real property is included, publication is required and creditors have 3 months from publication to file claims.
Third: The ancestral estate doctrine. When someone dies without children and owned real property that was an "ancestral estate" — land inherited from a parent or grandparent — the surviving spouse receives only a life estate in half (not outright ownership), and the property ultimately passes to the collateral relatives (cousins, aunts, uncles, etc.) on the ancestral side from which it came. This unusual doctrine means that inherited family land has a special character that affects who ultimately owns it after the surviving spouse dies.
Fourth: Marriage duration affects intestate inheritance. If a decedent had no children or descendants and is survived only by a spouse, the spouse must have been married to the decedent for at least three years to inherit the entire heritable estate. If married for less than three years with no children, the spouse only receives 50% of the heritable estate — the rest goes to other relatives.
Fifth: Holographic wills valid but harder to prove. Arkansas recognizes holographic wills (Ark. Code § 28-25-104) — entirely handwritten and signed by the testator, no witnesses needed at execution. However, unlike most states where two witnesses later testify about the handwriting, Arkansas requires at least three credible disinterested witnesses to establish the handwriting and signature at probate. This higher evidentiary threshold makes Arkansas holographic wills more difficult to admit and more vulnerable to challenge.
Sixth: Five-year deadline to file a will. Under Ark. Code § 28-40-103(a), a will generally must be filed for probate within five years of the testator's death. After five years, a will may not be admitted to probate, and the estate is administered as intestate.
Arkansas probate at a glance
| Topic | Arkansas rule | Authority |
|---|---|---|
| Governing law | Title 28, Arkansas Code; Title 28 on Justia; Official forms at arcourts.gov | Ark. Code § 28-1-101 et seq. |
| Probate court | Circuit Court, Probate Division in each of 75 counties. Arkansas circuit courts at arcourts.gov | Ark. Code § 28-1-104 |
| Dower and curtesy (with children) | Surviving spouse receives: life estate in 1/3 of all real property owned during marriage + 1/3 of personal property outright. Cannot be eliminated by will. | Ark. Code §§ 28-11-301, 28-11-305 |
| Dower and curtesy (no children) | Surviving spouse receives: 1/2 of real property in fee simple + 1/2 of personal property outright (both reduced to 1/3 as against creditors) | Ark. Code § 28-11-307 |
| Ancestral estate doctrine | If real property is an "ancestral estate" (inherited from parent or grandparent) and decedent died without children: spouse gets only life estate in 1/2 (not fee simple); property ultimately returns to ancestral relatives | Ark. Code § 28-11-307(b) |
| Small estate affidavit | Net estate ≤ $100,000 (after encumbrances, excluding homestead and statutory allowances); 45-day wait; covers REAL AND personal property; filed with Circuit Court clerk (~$30 fee); if real property: publish notice within 30 days; 3-month creditor period | Ark. Code § 28-41-101 |
| Will filing deadline | 5 years from date of death; after 5 years, will generally cannot be admitted to probate | Ark. Code § 28-40-103(a) |
| Holographic wills | Valid — but require proof by at least THREE credible disinterested witnesses to handwriting and signature (unlike most states' simpler two-witness proof requirement) | Ark. Code § 28-25-104 |
| Attested will | Testator's signature + two witnesses who sign at testator's request in testator's presence. Self-proving affidavit (notarized) speeds admission. | Ark. Code §§ 28-25-101, 28-25-103 |
| Creditor period (formal) | 6 months from date of first publication of notice; notice published once a week for two consecutive weeks | Ark. Code § 28-50-113 |
| Creditor period (small estate with real property) | 3 months from publication of notice (published within 30 days of filing affidavit) | Ark. Code § 28-41-101 |
| Inventory deadline | Within 2 months of appointment of personal representative | Ark. Code § 28-49-101 |
| Elective share (take against will) | Surviving spouse married for more than 1 year may elect to take dower/curtesy instead of will provision if more favorable | Ark. Code § 28-39-401 |
| Marriage duration rule | If no children and no prior marriages of decedent: spouse married < 3 years inherits only 50% of heritable estate; 100% requires 3+ years of marriage | Ark. Code § 28-9-214 |
| Beneficiary deed (TOD deed) | Available for real property; recorded during lifetime; revocable; Act 570 (2021) may limit Medicaid recovery against beneficiary deed property | Ark. Code § 18-12-608 |
| Tenancy by the entirety | Available for married couples; passes automatically at death; protected from individual creditors | Ark. Code § 18-12-501 et seq. |
| Survivorship period | 5 days — heir must survive decedent by at least 5 days to inherit | Ark. Code § 28-9-205 |
| Homestead | Arkansas Constitution Art. 9; 1/4 acre in city or 80 acres rural (value up to $2,500 in personal property homestead; real property homestead is constitutional); exempt from creditors | Ark. Const. Art. 9; Ark. Code § 16-66-210 |
| AR estate tax | None | — |
| AR inheritance tax | None | — |
| Attorney fee schedule | Statutory reference schedule exists (Ark. Code § 28-48-108) but fees are subject to court approval as reasonable; approximately 5% of first $5K, 4% of next $20K, 3% of next $25K, 2.5% of next $50K, 2% thereafter | Ark. Code § 28-48-108 |
2 Dower & curtesy — Arkansas's most distinctive feature
Arkansas maintains dower and curtesy rights under Ark. Code §§ 28-11-301 through 28-11-307. These are guaranteed property rights for the surviving spouse that no will, trust, or lifetime transfer can completely eliminate. The share depends on whether the decedent had children and whether the property is an "ancestral estate." Use the calculator below to see how this plays out in specific situations.
Arkansas Dower & Curtesy Calculator
Ark. Code §§ 28-11-301, 28-11-307 · Select scenario and enter values to see the dower/curtesy split
| Situation | Spouse's real property right | Spouse's personal property right | Authority |
|---|---|---|---|
| Decedent survived by spouse AND children | Life estate in 1/3 of all real property owned during marriage | 1/3 outright (absolute ownership) | Ark. Code §§ 28-11-301, 28-11-305 |
| Decedent survived by spouse, NO children (non-ancestral land) | 1/2 in fee simple (outright); reduced to 1/3 as against creditors | 1/2 outright; reduced to 1/3 as against creditors | Ark. Code § 28-11-307 |
| Decedent survived by spouse, NO children, ANCESTRAL ESTATE (inherited land) | Life estate only in 1/2 (against collateral heirs); life estate in 1/3 against creditors. Property ultimately passes to ancestral relatives. | 1/2 outright (personal property not affected by ancestral doctrine) | Ark. Code § 28-11-307(b) |
| Application whether or not there is a will | YES — dower/curtesy applies regardless of will provisions. A will cannot eliminate these rights. | YES — applies to personal property too | Ark. Code § 28-39-301 |
3 Arkansas small estate affidavit — $100K covers real property
Arkansas's small estate affidavit procedure under Ark. Code § 28-41-101 is one of the most generous in the country in two key dimensions: the $100,000 threshold (net of encumbrances, after excluding homestead and statutory allowances) and the ability to transfer real property — not just personal property. Most states restrict small estate affidavits to personal property only.
| Requirement | Rule |
|---|---|
| Value threshold | Net estate ≤ $100,000 after subtracting encumbrances (liens, mortgages); homestead and statutory allowances for spouse/minor children are EXCLUDED from this calculation |
| Waiting period | At least 45 days must have passed since the date of death |
| No pending appointment | No petition for appointment of a personal representative has been filed or granted in any jurisdiction |
| No unpaid claims | No unpaid claims or demands against the decedent or estate, except for DHS/Medicaid which must have been reimbursed |
| DHS reimbursement | If the decedent received federal or state benefits from the Arkansas Department of Human Services (Medicaid, etc.), those benefits must have been repaid or DHS must have been notified |
| Where filed | Circuit Court Probate Division clerk in the county where the decedent resided; filing fee approximately $30 |
| Publication (real property only) | Must publish notice within 30 days of filing if real property is included; 3-month creditor claim period from publication |
| No publication (personal property only) | If the estate contains only personal property, no publication or creditor notice is required |
| Will attachment | If there is a will, it may be attached to the affidavit at no extra charge; estate distributed per will or intestacy |
| Real property transfer mechanism | Certified copy of the filed affidavit presented to any person owing money, having custody of property, or acting as registrar — they must transfer without requiring further court order |
4 Arkansas intestate succession — key rules including marriage duration
Arkansas intestate succession is governed by Ark. Code §§ 28-9-201 through 28-9-220. Understanding how it interacts with dower/curtesy is critical: the dower/curtesy share is a SEPARATE right that comes first, before intestate shares are calculated. The "heritable estate" — what remains after the dower/curtesy share is set aside — is then distributed by intestacy or will.
| Family situation | Dower/curtesy (first) | Heritable estate (remaining) |
|---|---|---|
| Spouse + children (all children also spouse's) | Spouse: life estate in 1/3 real property + 1/3 personal property outright | Heritable estate passes to children equally |
| Spouse + children from prior relationship (blended family) | Spouse: life estate in 1/3 real property + 1/3 personal property outright | Heritable estate passes to children equally — can create conflict in blended families |
| Spouse only (no children); married 3+ years | Spouse: 1/2 real property in fee + 1/2 personal outright | All remaining heritable estate passes to surviving spouse |
| Spouse only (no children); married < 3 years | Spouse: 1/2 real property in fee + 1/2 personal outright | Only 50% of heritable estate to spouse; other 50% to decedent's relatives (parents, siblings, etc.) |
| No spouse; children survive | No dower/curtesy applies | Children inherit equally |
| Survivorship requirement | Heir must survive decedent by at least 5 days to inherit (Ark. Code § 28-9-205) | |
5 Arkansas wills — attested, holographic, and the 5-year filing rule
| Will type | Valid in Arkansas? | Requirements and cautions |
|---|---|---|
| Attested (witnessed) will | Yes — standard form; strongly recommended | Testator's signature (or at their direction, in their presence) + at least two witnesses who sign at testator's request in testator's presence. Self-proving affidavit (notarized per Ark. Code § 28-25-106) allows will to be admitted without witness testimony — strongly recommended to avoid delays. Ark. Code §§ 28-25-101, 28-25-103. |
| Holographic will | Valid — but requires THREE witnesses to prove; higher risk | Entire body and signature must be in testator's handwriting; signed by testator; no witnesses required at execution. However, proof at probate requires at least THREE credible disinterested witnesses to testify to the testator's handwriting and signature (Ark. Code § 28-25-104). This is more demanding than most states' two-witness requirement and makes holographic wills more vulnerable to challenge and delay. |
| Will filing deadline | 5 years from death; after 5 years, will generally cannot be admitted | Under Ark. Code § 28-40-103(a), a will generally must be filed for probate within five years of the testator's death. If a will is found after 5 years, the estate may be administered as intestate regardless of the will's contents. This is the same 5-year deadline as Alabama's (also one of the strictest in the country). |
| Right to take against the will | Surviving spouse married more than 1 year may elect to take dower/curtesy rights instead of will provisions if those rights are more valuable. Ark. Code § 28-39-401. | |
6 Arkansas formal probate — step by step
- 1
Assess path; file will within 5 years; determine dower/curtesy 5-year deadline · Dower applies regardless of will
Determine whether the small estate affidavit applies ($100,000 or less net). If not, file the will with the Circuit Court Probate Division in the county of the decedent's domicile within five years of death (Ark. Code § 28-40-103). Address dower and curtesy immediately — the surviving spouse's dower rights must be calculated and set aside before any other distribution. File using official Arkansas Judiciary forms at arcourts.gov — Form 3 (testate) or Form 2 (intestate).
Original will (Form 3) or Petition for Administration (Form 2)Certified death certificates × 6 - 2
Court appoints personal representative; issues Letters Circuit Court issues Letters Testamentary or Letters of Administration
The Circuit Court admits the will to probate (if self-proving under Ark. Code § 28-25-106, no witness testimony needed) and appoints the personal representative. The court issues Letters Testamentary (testate) or Letters of Administration (intestate). Bond typically required unless waived. Order 6–8 certified copies of Letters. The PR's compensation is subject to court approval as reasonable under Ark. Code § 28-48-108; there is a reference fee schedule but amounts are not rigidly fixed.
Letters Testamentary or Letters of Administration (certified copies)Bond (unless waived) - 3
Publish Notice to Creditors; 6-month creditor period Published once a week for two consecutive weeks
Publish Notice to Creditors in a newspaper of general circulation in the county once per week for two consecutive weeks (Ark. Code § 28-50-101 et seq.). The six-month creditor period runs from the date of first publication (Ark. Code § 28-50-113). Mail direct notice to all known creditors. The six-month period cannot be shortened for regular administration — this sets the minimum timeline for estate closure. Mail notice to the Arkansas Department of Human Services regarding any benefits the decedent may have received.
Notice to Creditors (2 consecutive weeks)Direct notice to all known creditorsNotice to AR Department of Human Services (Medicaid recipients) - 4
File inventory within 2 months of appointment 2-month deadline — Ark. Code § 28-49-101
File a complete inventory of all estate assets with the Circuit Court within 2 months of appointment. List all real and personal property with date-of-death fair market values. For real property, include legal descriptions. Professional appraisals required for real estate, business interests, and other assets of uncertain value. The inventory establishes the estate value for attorney fee approval and PR compensation calculations. Note dower/curtesy separately — it reduces the "heritable estate" subject to distribution.
Inventory (filed within 2 months of appointment)Professional appraisals for real estate and timber interests - 5
Assign dower/curtesy; pay allowances; pay valid creditor claims Dower assigned before any other distribution
First priority after administration costs: assign the surviving spouse's dower or curtesy rights. If the dower interest has not been assigned by the heirs within a reasonable time, the court can order the assignment. The surviving spouse may petition the court for assignment within one year of death (Ark. Code § 28-11-304). After dower assignment, pay the spousal allowance (exempt personal property up to $4,000) and the family allowance for minor children. Then pay valid creditor claims in statutory priority order after the 6-month period. Arkansas has no state estate tax or inheritance tax — no state tax returns required. File the decedent's final federal and Arkansas income tax returns.
- 6
File final accounting; petition for final distribution Court issues Decree of Distribution
File a Final Accounting and Petition for Distribution with the Circuit Court. The accounting details all estate transactions — assets received, debts paid, expenses incurred (including attorney fees subject to court approval under Ark. Code § 28-48-108), and the proposed distribution to heirs or devisees. Notice of the final hearing to all interested parties. The court reviews the accounting, hears any objections, and issues a Decree of Distribution. Distribute assets per the decree; obtain receipts from all beneficiaries. Estate formally closed by court order. Arkansas estates typically take 9–18 months for regular administration.
Final AccountingPetition for DistributionDecree of Distribution (record with Circuit Court for real property)
7 Key Arkansas probate forms & resources
Official Arkansas probate forms are published by the Arkansas Judiciary and available at the Arkansas Judiciary forms page at arcourts.gov. The full Arkansas Code Title 28 is available at the Justia Arkansas Code mirror. The Arkansas Bar Association's Find a Lawyer service at arkbar.com connects families with qualified probate attorneys.
Official Arkansas Judiciary Form 3, filed with the Circuit Court Probate Division in the county where the decedent was domiciled. Attach the original will. A self-proving will (per Ark. Code § 28-25-106) can be admitted without witness testimony. The court admits the will to probate and appoints the personal representative. The court issues Letters Testamentary. Available directly at arcourts.gov.
Filed with the Circuit Court Probate Division clerk in the county where the decedent resided (~$30 fee). Net estate value must not exceed $100,000 after encumbrances, excluding homestead and statutory allowances. Wait at least 45 days after death. No personal representative appointment pending. DHS benefits must be reimbursed. If real property included: publish notice within 30 days; 3-month creditor claim period from publication. If personal property only: no publication. See Ark. Code § 28-41-101 on Justia. The Garland County information packet shows a sample affidavit.
Arkansas beneficiary deed (also called a Transfer-on-Death deed) under Ark. Code § 18-12-608 allows real property to transfer at death to named beneficiaries without probate. Record during the owner's lifetime at the Circuit Court Clerk's office. Revocable at any time before death. At death, beneficiary records an acceptance affidavit and death certificate. Act 570 of 2021 may limit Medicaid estate recovery against property transferred through a properly recorded beneficiary deed — important for families concerned about long-term care costs. An excellent planning tool, particularly for Arkansas farmland and family homes. Consult an Arkansas estate planning attorney about implementation.
Arkansas Judiciary Form 1, used by any interested person (heir, creditor, beneficiary) to demand that they receive notice of all probate proceedings in the estate. Filed with the Circuit Court Probate Division. Once filed, the personal representative must provide notice to that person of all future hearings and proceedings. Important for: potential heirs who are concerned about whether they're being included; creditors monitoring the estate; beneficiaries who want to be kept informed. Official form at arcourts.gov.
When the surviving spouse's dower or curtesy rights have not been voluntarily assigned by the heirs or devisees, the surviving spouse may petition the Circuit Court for an order assigning those rights. Under Ark. Code § 28-11-304, the court can order assignment of dower. The petition should be filed within a reasonable time after the spouse becomes aware of the estate administration, and the right to petition must be exercised within one year of death. Until dower is assigned, the personal representative may not pay the heirs or devisees without potential liability to the surviving spouse. This is one of the most contested areas of Arkansas probate. Contact the Arkansas Bar's lawyer finder at arkbar.com.
Filed after the 6-month creditor period and resolution of all claims. Accounts for all receipts, disbursements, and proposed distribution. Attorney fees must be approved by the court as reasonable under Ark. Code § 28-48-108 — no mandatory fixed percentage, but a reference schedule exists. The court issues a Decree of Distribution. Certified copies must be recorded in each county where real property is located. See official form at arcourts.gov. Typical timeline from filing to final decree: 9–18 months for regular administration (minimum 6 months for creditor period).
8 All 75 Arkansas county Circuit Courts — Probate Division
Arkansas has 75 counties, each with a Circuit Court that handles probate in its Probate Division. File in the county where the decedent was domiciled at death. For real property transfers, file the Decree of Distribution or beneficiary deed acceptance with the Circuit Court Clerk in each county where property is located. Pulaski County (Little Rock) handles the most probate volume. Benton and Washington counties (Northwest Arkansas — Bentonville/Fayetteville area) are the fastest-growing courts. Garland County (Hot Springs) has a large retiree population with significant probate volume. Use the Arkansas circuit courts directory at arcourts.gov for contact information and hours.
Showing all 75 Arkansas counties