VIII. DECEDENTS' ESTATES

A. ADMISSION OF WILL TO PROBATE. No will shall be admitted to probate and no administration shall be granted unless application is made to the court for the same within five (5) years from the death of the decedent, subject only to the exceptions stated. This section shall not affect the availability of appropriate equitable relief against a person who has fraudulently concealed or participated in the concealment of a will. Insofar only as it relates to real property in Arkansas, or any interest in real property, the will of a nonresident that has been admitted to probate in another jurisdiction may be admitted to probate in the state without regard to the time limit imposed by this section. A.C.A. § 28-40-103 (1987).

 

B. APPOINTMENT OF PERSONAL REPRESENTATIVE. Promptly after the letters have been granted on the estate of a deceased person, the personal representative shall cause to be published a notice of his appointment, stating the date of his appointment, and requiring all persons having claims against the estate to exhibit them, properly verified to him, within three (3) months from the date of the first publication of the notice, or they shall be forever barred and precluded from any benefit in such estate. Claims for injury or death caused by the negligence of the decedent shall be filed within six (6) months from the date of the first publication of the notice, or they shall be forever barred and precluded from any benefit in the estate. Within one (1) month after the first publication of notice, a copy thereof shall also be

served upon each heir and devisee whose name and address are known and upon all unpaid creditors whose names, status as creditors, and addresses are known or reasonably ascertainable by the personal representative, including the Department of Human Services if it is known or could be reasonably ascertained that the Department of Human Services has rendered services to the decedent in accordance with A.C.A. § 28-1.113(b)(1), (2), or (3). If, thereafter, the names and addresses of any such creditors are ascertained, a copy of the notices shall be promptly served upon them. A.C.A. § 28-40-111(a) (1987 & Supp. 2001).

 

C. CLAIMS AGAINST THE ESTATE. 1. Claims in general.

 

a. Claim barred at time of decedent's death. No claim shall be allowed which was barred by any statute of limitations at the time of the decedent's death. A.C.A. § 28-50­101(b) (1987 & Supp. 2001).

 

b. Claims barred when no administration commenced or no notice published. All claims that are barrable under A.C.A. § 28-40-11 (a) shall, in any event, be barred at the end of five (5) years after the date of the death of the decedent, unless within said period letters have been issued and notice to creditors has been published as provided by A.C.A. § 28-40-111. A.C.A. § 28-50-101(d) (1987 & Supp. 2001).

c. Claims of known creditors and reasonably ascertainable creditors barred. Notwithstanding any other provisions of this section to the contrary, the claims of all known or reasonably ascertainable creditors shall be barred at the end of two (2) years from the date of first publication of notice to creditors, even if they have not been provided actual notice in accordance with A.C.A. § 28-40-111(a)(4). A.C.A. § 28-50­101(h) (1987 & Supp. 2001).

 

d. Contingent claim that becomes absolute. A contingent claim that becomes absolute six (6) months or more prior to the order of final distribution shall be presented for allowance within six (6) months after becoming absolute. A.C.A. § 28-50-110(b) (1987).

 

e. Contingent claim not timely presented. A contingent claim not presented within the time prescribed by A.C.A. § 28-50-101, or subsection (b) of this section, shall be barred as against the estate, but, within the time permitted by law for bringing actions thereon, may be enforced against the distributees of the estate to the extent of the assets of the estate or the proceeds thereof remaining in the hands of distributees. A.C.A. § 28-50­110(1987).

 

f. Extension of limitations in certain cases. Notwithstanding the foregoing provision relating to the time for filing claims against an estate, or any other provisions of this code, a creditor of an estate who receives service of notice from the personal representative in accordance with A.C.A. § 28-40-111(a)(4), within thirty (30) days of the expiration of the nonclaim period, shall have an additional thirty (30) days after expiration of the nonclaim period in which to present or file its claim. A.C.A. § 28-50­101(g) (1987 & Supp. 2001).

 

g. Improper distribution. Any suit or proceeding to recover property improperly distributed or the value thereof, money improperly paid, and income or interest, as the case may be, shall be barred three (3) years after decedent's death or two (2) years after the time of distribution or payment, whichever last occurs. A.C.A. § 28-53-110(d) (1987).

 

h. Liens not affected. Nothing in A.C.A. § 28-40-111 shall affect any action or proceeding to enforce any mortgage, pledge, or other lien arising under contract or statute upon the property of the estate. A.C.A. § 28-50-101 (1987 & Supp. 2001).

 

i. Statute of nonclaims. Except as provided in A.C.A. §§ 28-50-102 and 28-50-110, all claims against a decedent's estate (with exceptions related to claims by the United States), whether due or to become due, absolute or contingent, or liquidated or unliquidated, founded on contract or otherwise, shall be forever barred unless filed with the court or verified to the personal representative within three (3) months after the date of the first publication of notice to creditors. Claims for injury or death caused by the negligence of the decedent shall be filed within six (6) months from the date of first publication of the notice, or they shall be forever barred. A.C.A. § 28-50-101(a) (1987 & Supp. 2001).

j. Statute of nonclaims not affected by statutes of limitations. No claim shall be barred by the statute of limitations which was not barred thereby at the time of the decedent's death, if the claim shall be presented to the personal representative or filed with the court within three (3) months after the date of the first publication of notice to creditors. A.C.A. § 28-50-101(c) (1987 & Supp. 2001).

 

k. Tort claims. Notwithstanding the foregoing provisions relating to the time for filing claims against an estate, or any other provisions of this code, a tort claim or tort action against the estate of a deceased tortfeasor, to the extent of any recovery which will be satisfied from liability insurance or from uninsured motorist insurance coverage and which will not use, consume or deplete any assets of the decedent's estate, may be brought within the limitation period otherwise provided for the tort action. No recovery against the tortfeasor's estate shall use, consume, diminish, or deplete the assets of the decedent's estate, and any recovery shall not affect the distribution of the assets of the estate unless a claim is filed in the manner and within the time provided by this code for filing claims against the estate. A.C.A. § 28-50-101(f) (1987 & Supp. 2001).

 

2. Filing of claims presented to personal representative. A claim approved by the personal representative must be filed with the court by or on behalf of the claimant within thirty (30) days after the expiration of six (6) months from the date of the first publication of the notice to creditors or it shall be barred as provided in A.C.A. § 28-50-101. A claim disapproved or not acted upon by the personal representative must be filed with the court by or on behalf of the claimant within the period fixed by A.C.A. § 28-50-101 or within thirty (30) days after the date of its presentation to the personal representative, whichever shall be the later date, or it shall be barred as provided in A.C.A. § 28-50-101. A.C.A. § 28-50-104(a) (1987).

 

D. DISCLAIMING INTEREST IN PROPERTY. With certain listed exceptions, if the property or interest has devolved to the disclaimant under a testamentary instrument or by the law of intestacy, the disclaimer shall be delivered, as to a present interest, not later than nine (9) months after the death of the deceased owner or deceased donee of a power of appointment and, as to a future interest, not later than nine (9) months after the event determining that the taker of the property or interest has become finally ascertained and his interest is indefeasibly vested. With certain listed exceptions, if the property or interest has devolved to the disclaimant under a nontestamentary instrument or contract, the disclaimer shall be delivered, as to a present interest, not later than nine (9) months after the effective date of the nontestamentary instrument or contract and, as to a future interest, not later than nine (9) months after the event determining that the taker of the property or interest has become finally ascertained and his interest indefeasibly vested. If the person entitled to disclaim does not have actual knowledge of the existence of the interest, the disclaimer shall be delivered not later than nine (9) months after he has actual knowledge of the existence of the interest. In any case, as to a transfer creating an interest in the disclaimant made after December 31, 1976, and subject to tax under chapters 11, 12 or 13 of the Internal Revenue Code of 1954, as amended, a disclaimer intended as a qualified disclaimer must specifically so state and must be delivered not later than nine (9) months after the later of either the date the transfer is made or the day on

which the person disclaiming attains the age twenty-one (21) years. A.C.A. §§ 28-2-107(a) - (c) (1987 & Supp. 2001).

 

E. ELECTION TO TAKE AGAINST THE WILL.

 

1 . Notice of spouse of right to elect. Within one (1) month after the will of a married person has been admitted to probate, the clerk shall mail a notice to the decedent's surviving spouse at his or her mailing address, if known, in which shall be stated the time within which a written election must be filed by or on behalf of the surviving spouse in order to take against the will. A.C.A. § 28-39-402 (1987).

 

2. Spouse's limitation for fling election. The election by a surviving spouse to take against the will may be made at any time within one (1) month after the expiration of the time limited for the filing of claims. If, however, at the expiration of the period for making the election, certain statutorily described litigation regarding the will is pending, the election may be made within one (1) month after the date of the final order of the probate court adjudicating the issue in litigation. A.C.A. § 28-39-403 (1987 & Supp. 2001).

 

F. INVENTORY. With certain statutory exceptions, within two (2) months after his qualification, or as the court may direct, a personal representative shall make and file a true and complete inventory of all property owned by the decedent at the time of his death. A.C.A. §

28-49-110(a) (1987).

 

G. OBJECTIONS. TO ACCOUNTS. At the statutorily-appointed times, the clerk shall publish a notice calling on interested persons to file objections to accounts filed by the personal representative. Objections must be filed on or before the sixtieth (60^th) day following the filing of the accounts, failing which the persons will be barred forever from objecting to the accounts. A.C.A. § 28-52-106 (1987).

 

H. OBJECTION TO FOREIGN WILL. The grounds for objection to a foreign will which has been admitted to probate in this state must be filed within the same time as though it were the will of a resident of this state, or thereafter, within forty-five (45) days after rendition of an order of a court of competent jurisdiction in the state of the domicile of the decedent, setting aside the probate of the will therein. A.C.A. § 28-40-113(b)(3) (1987).

 

Y, REVIVAL OF ACTION AGAINST THE PERSONAL REPRESENTATIVE. An order to revive an action against the personal representative of a defendant, or against him and the heirs or devisees of the defendant, may be made at any time after the appointment of the personal representative. An order to revive an action against the personal representative of a decedent for the purpose of proving a claim against the estate of the decedent shall not be made after the time fixed by law for filing claims against the estate. An order of revivor may, however, be made against the personal representative of a deceased defendant after the expiration of the time for filing claims against the said estate in any case where the personal representative may be a necessary or proper party for the determination of rights of the estate in the subject matter of the action. No order of revivor against either the personal representatives or the heirs or devisees of the decedent shall be made except with the consent of such personal representative,

heirs, or devisees unless made within one (1) year from the time when it could first have been made except that an order to revive an action in the names of the representatives or successor of a plaintiff shall not be made without the consent of the defendant after the expiration of one (1) year from the time when the order might first have been made. A.C.A. § 16-62-107(b),

108 (1987).

 

J. WILL CONTEST.

 

1. Basis of contest is discovery of another will. If the ground of objection is that another will of the decedent has been discovered, the ground of objection must be filed with the court before final distribution of the estate is ordered and within five (5) years from the death of the decedent, as provided in A.C.A. § 28-40-103, subject only to stated exceptions. A.C.A. § 28-40-113 (1987).

 

2. Basis of contest is any ground other than discovery of another will.

 

a. Contestant given notice by means other than publication of hearing. If the contestant or the person through whom he derives his interest in the estate has been given notice by means other than publication of the hearing of a petition for probate as provided in A.C.A. § 28-40-110, his grounds of objection must be filed at or prior to the time of the hearing on the petition for probate. A.C.A. § 28-40-113(b)(2)(A) (1987).

 

b. Contestant given notice in manner provided by A.C.A. § 28-40-11 and is not barred by A.C.A. § 28-40-113(b)(2)(A). If the contestant or the person through whom he derives his interest in the estate has been notified of the admission of the will to probate in the manner provided by A.C.A. § 28-40-11 and is not barred by A.C.A. § 28­40-113(b)(2)(A), his grounds of objection must be filed within three (3) months after the date of the first publication of the notice of admission of the will to probate. A.C.A. § 28-40-113(b)(2)(B) (2001).

 

c. Contestant not barred by A.C.A. § 28-40-113 but notice of admission of will to probate proper and a copy served upon contestant. If the contestant or the person through whom he derives his interest in the estate is not barred by the above provisions of A.C.A. § 28-40-113, but notice of the admission of the will to probate has been published as provided in A.C.A. § 28-40-111, whether or not published promptly, and a copy thereof has been served upon the contestant or the person through whom he derives his interest in the estate in accordance with A.C.A. §§ 28-1-112(b) (1), (2), (3), the contestant must file his grounds for objection to the probate of the will within three (3) months after the first publication of notice of the probate or within forty-five (45) days after a copy of such notice was served upon him or his predecessor in interest in the estate, whichever period shall last expire. A.C.A. § 28-40-113(b)(2)(C) (1987).