Arkansas Small Estate Affidavit

The $100,000 limit, and what actually counts

The 45-day waiting period

45 days, counted from the date of death of the decedent (not from date of appointment, not from date of will admission). Ark. Code Ann. 28-41-101(a)(1)(B): 'Forty-five (45) days have elapsed since the death of the decedent.' Official Form 23, paragraph 2, recites: 'More than forty-five (45) days have elapsed since decedent's death.' Note this is not the common 30-day UPC period. Arkansas is 45 days. Practical rule for the product: earliest permissible filing date = date of death + 46 days. Separate downstream clock for real property: notice must be published within 30 days after the affidavit is filed (28-41-101(b)(2)(A)), and creditor claims are barred 3 months after first publication (28-41-101(b)(2)(B); 28-41-102(b)(2)).

Who can sign the affidavit

One or more "distributees" of the estate, i.e., the person(s) entitled to receive the decedent's property as surviving spouse, heir at law, or devisee under a will. Ark. Code Ann. § 28-41-101(a)(1)(D) ("One (1) or more of the distributees files an affidavit"). Official Form 23 provides signature blocks for multiple affiants and requires each affiant's printed name, address, telephone number and email. No personal representative may have been appointed and no petition for appointment may be pending.

Either. Testate and intestate estates both qualify. Official Form 23, paragraph 6, asks for persons entitled to receive property 'as surviving spouse, heirs or devisees of decedent's will.' The will is not required to be separately admitted to probate before using the affidavit; the statute contemplates the will simply being attached to the affidavit. 'An additional fee shall not be charged if a will is attached to the affidavit,' Ark. Code Ann. 28-41-101(b)(1)(D). Caution: Ark. Code Ann. 28-40-103 bars probate/administration more than 5 years after death, which can affect whether a will can still be given effect and therefore who the qualifying distributees are.

The affidavit must be signed in front of a notary. Most banks and UPS Stores have a notary; many charge under $15.

Can it transfer a house or land in Arkansas?

Yes, real property passes under the same affidavit; Arkansas has no separate real-property small-estate instrument and no separate real-property dollar threshold. The single $100,000 cap covers real and personal property together (with the homestead's value excluded from the arithmetic). Ark. Code Ann. 28-41-101(a)(1)(D)(ii) requires 'a legal description and valuation of any real property of the decedent, including the homestead,' and (a)(1)(D)(iii) requires names/addresses of anyone possessing or residing on the real property. Extra steps that apply only when real property is included: (1) Within 30 days after filing the affidavit the distributee must publish a notice of the decedent's death and the filing of the affidavit; the statute sets out the exact notice form verbatim in 28-41-101(b)(2)(B); publication is governed by 28-1-112(b)(4) and 28-40-111(a)(4) (Legal Aid of Arkansas describes this in practice as once a week for two weeks in a newspaper of general circulation, with the newspaper's affidavit of publication then filed with the court). (2) Claims must be exhibited, properly verified, to the distributee within 3 months of first publication or are 'forever barred' (28-41-101(b)(2)(B); 28-41-102(b)(2)). (3) after the 3-month period lapses with no claim presented (or all presented claims satisfied), the distributee is 'authorized to issue to himself or herself a deed of distribution for the real property of the decedent as if made by a personal representative' and must 'deliver notice of the transfer of ownership to the county assessor of each county where the real property is located'. Ark. Code Ann. 28-41-102(d)(1)-(2) (added by Act 1021 of 2017). So the affidavit alone does not complete the record chain for realty: a deed of distribution is the operative recordable conveyance. (4) If any claim is presented within the 3 months and is not satisfied outside the estate, formal administration is mandatory. 28-41-102(e). Note separately that under Arkansas law legal title to realty descends to heirs at death subject to administration; the affidavit + publication + deed of distribution package is what makes that marketable of record.

Affidavit of heirship in Arkansas

Arkansas recognizes affidavits of heirship in practice, but there is no Arkansas statute that makes an affidavit of heirship a conveyance. It does not transfer title. It is evidentiary only: a record-title link used by title examiners to show who the heirs are, so that the heirs' already-vested interests (real property descends to heirs at death under Arkansas descent and distribution law, Ark. Code Ann. 28-9-201 et seq.; table of descents at 28-9-214) can be traced of record. Do not market it as a transfer instrument; that is the single most common and most dangerous Arkansas misconception. Statutory hook for recording: Ark. Code Ann. 18-12-108 ('scrivener's affidavit') defines a sworn and acknowledged affidavit relating to identification, marital status, heirship, relation, death, or the time of death of a person who is a party to an instrument affecting title to real property; it may be executed only by (a) the licensed attorney who prepared the original instrument, (b) a licensed attorney representing a party to the instrument, (c) a party to the instrument who prepared it, or (d) a current employee of a title company that completed the form, a meaningful limitation, because a lay heir generally cannot self-execute a 18-12-108 affidavit. A conforming scrivener's affidavit is recorded in the land records of the county where the property lies, indexed under the original parties' names, and is 'admissible as evidence to the same extent as a deed or other instrument recorded', i.e., evidentiary weight, not title transfer. Customary (non-statutory) practice, described by Arkansas real-estate counsel, is an affidavit of heirship signed before a notary by two disinterested third parties with personal knowledge of the decedent and the family (persons who are not themselves heirs), recorded in each county where the decedent owned realty; it is frequently used where more than 5 years have passed since death so probate is no longer available under Ark. Code Ann. 28-40-103. Title underwriters treat it as presumptive evidence only and may still require a quiet-title action or a judicial determination of heirship. The instrument that is conclusive is a court proceeding: Ark. Code Ann. 28-53-101, Determination of Heirship: petitioned by a person claiming an interest as heir or distributee, by a person claiming through an heir, or by the personal representative; requires notice by publication to all known or believed claimants plus personal or registered-mail notice to those whose addresses are known; the resulting order is 'conclusive upon all parties to the proceeding having or claiming an interest in the property, subject to the right of appeal,' with a 3-year window for persons not personally served to petition to vacate or modify for good cause. Bottom line for the product: (1) small-estate affidavit + publication + deed of distribution under 28-41-101/102 = the route that actually moves title within 5 years of death and under $100,000; (2) affidavit of heirship = evidence only; (3) 28-53-101 determination of heirship = the conclusive judicial route.

How to use a small estate affidavit in Arkansas

1. 1

   Confirm you're under the limit and past the wait

   Add up the property that passes through the estate and check it against the $100,000 ceiling. Gross value of all property (real and personal) owned by the decedent at death, less encumbrances, excluding the value of the decedent's homestead and the value of any statutory allowances for a surviving spouse or minor children. Ark. Code Ann. § 28-41-101(a)(1)(C)(i)-(ii).

2. 2

   Gather the documents

   You'll need certified copies of the death certificate: order at least three, since institutions often keep one: plus account numbers, the vehicle title or VIN, and the names and addresses of every heir.

3. 3

   Complete the affidavit

   Fill in Affidavit for Collection of Small Estate by Distributee (Ark. Code Ann. § 28-41-101; Arkansas Judiciary Official Probate Form 23), listing the decedent, the heirs and their relationships, the assets and their values, and the known debts.

4. 4

   Sign it in front of a notary

   Sign in front of a notary public. Banks, credit unions and shipping stores all offer notarization, usually for a small fee.

5. 5

   File it with the probate court

   Filing is required, but judicial approval is not. The affidavit is filed with the probate clerk of the circuit court (Probate Division) of the county of proper venue for administration, generally the county where the decedent resided. Ark. Code Ann. 28-41-101(a)(1)(D). The clerk files it, assigns it a case number, and indexes it under 28-1-108(1). Statutory fees: $25.00 to file the affidavit and $5.00 for each certified copy. 28-41-101(b)(1)(B); no additional fee is charged if a will is attached. 28-41-101(b)(1)(D). No order issues: 'An order of the court or other proceeding is not necessary.' 28-41-101(b)(1)(C). What the institution receives is a clerk-certified copy of the filed affidavit, not a court order. Official Form 23 includes a 'Certificate of Clerk' block in which the clerk certifies that the copy is true, that the affidavit remains on file, and that no petition for appointment of a personal representative has been filed. Contrast Texas: no judge signs anything in Arkansas. Some counties add local practice requirements (e.g., a certified death certificate) that the statute does not itself list, verify with the specific circuit clerk.

6. 6

   Present it to whoever holds the property

   Safe harbor is express and strong. Ark. Code Ann. 28-41-102(a): 'The person making payment, transfer, or delivery pursuant to the affidavit described in 28-41-101 shall be released to the same extent as if made to a personal representative of the decedent, and he or she shall not be required to see to the application thereof or to inquire into the truth of any statement in the affidavit.' The trigger is delivery of a clerk-certified copy of the filed affidavit to 'any person owing any money, having custody of any property, or acting as registrar or transfer agent of any evidence of interest, indebtedness, property, or right'. 28-41-101(a)(1)(E). That language reaches banks and credit unions, employers holding final wages, insurers, brokerages and transfer agents, and the DFA Office of Motor Vehicle. Remedy for refusal: 'If the person to whom the affidavit is delivered refuses to pay, transfer, or deliver the property as provided in this section, the property may be recovered or delivery compelled in an action brought in a court of competent jurisdiction for such a purpose by or in behalf of the distributee entitled to the property upon proof of the facts required to be stated in the affidavit.' 28-41-102(c). Banking: since Act 423 of 2021 ('Carmack's Law'), Ark. Code Ann. 28-41-101(a)(2) additionally permits the distributee to open a checking or savings account at an Arkansas bank in the name of the estate and on behalf of the estate without filing a probate petition or obtaining a court order. This exists to let distributees deposit checks made payable to the estate. Real property / county: notice of the transfer of ownership must be delivered to the county assessor of each county where the realty lies once the deed of distribution issues. 28-41-102(d)(2).

Where to take the signed affidavit

Debts and your personal liability

Very strict. This is the single most-missed Arkansas requirement. The affiant must swear under oath that 'there are no unpaid claims or demands against the decedent or his or her estate,' And either that DHS furnished no federal or state benefits to the decedent, or that DHS has been reimbursed in accordance with state and federal laws and regulations. Ark. Code Ann. 28-41-101(a)(1)(D)(i). There is no 'debts will be paid from the assets' alternative in the statute: existing unpaid debt is a bar to using the affidavit as written, so debts must be resolved first. Affiant liability: 'The distributee to whom payment, transfer, or delivery is made, as trustee, shall be answerable to any person having a prior right and shall be accountable to any personal representative thereafter appointed.' Ark. Code Ann. 28-41-102(b)(1). The distributee therefore holds the collected property in a fiduciary capacity and can be compelled to account. Liens and mortgages are unaffected: 'Nothing in this section shall affect or prevent any action or proceeding to enforce any mortgage, pledge, or other lien arising under contract or statute upon the property of the estate.' 28-41-102(b)(3). If real property is involved and the statutory notice is published, all claims as to real property are forever barred 3 months after first publication. 28-41-102(b)(2). If a claim is presented in that window, formal administration is mandatory unless the claim is satisfied without using estate property (with a written acknowledgement of satisfaction from the claimant); a new filing fee is owed and the small-estate filing fee is not credited or refunded. 28-41-102(e)(1)-(4). Swearing falsely to the no-claims recital exposes the affiant to perjury as well as to the trustee accounting.

When you can’t use it

Arkansas takes the affidavit route off the table when:

• A petition for appointment of a personal representative is pending, or letters have already been granted. § 28-41-101(a)(1)(A)
• Fewer than 45 days have elapsed since the date of death. § 28-41-101(a)(1)(B)
• Net value (less encumbrances, excluding homestead value and statutory spousal/minor-child allowances) exceeds $100,000. § 28-41-101(a)(1)(C)
• There are any unpaid claims or demands against the decedent or the estate, the affiant must swear there are none; unpaid debts therefore block use of the affidavit. § 28-41-101(a)(1)(D)(i)
• The Arkansas Department of Human Services furnished federal or state benefits (e.g., Medicaid) to the decedent and has not been reimbursed in accordance with state and federal law. § 28-41-101(a)(1)(D)(i)
• Post-filing trigger: if the estate includes real property and any creditor presents a claim within 3 months of first publication, the distributee must file a petition for formal administration under § 28-40-101 et seq., pay a new filing fee, and republish notice. § 28-41-102(e) (exception: claim satisfied without using estate property, with a written acknowledgement of satisfaction from the claimant)
• Venue defect: the affidavit must be filed in the county of proper venue for administration (generally the county of the decedent's residence). § 28-41-101(a)(1)(D)
• Practical: if the decedent left a will and more than 5 years have passed since death, the will can no longer be admitted to probate (§ 28-40-103), which affects who qualifies as a distributee

If any of those apply, a probate attorney is the right call. A typical small-estate proceeding runs $1,000–$3,000 plus the court’s fee.

Arkansas small estate affidavit FAQ

Statute and sources

Last verified July 29, 2026. No amendment to Ark. Code Ann. 28-41-101 or 28-41-102 was found in the 2023, 2024, 2025 or 2026 sessions. The threshold has not changed and remains $100,000. Prior amendments, verified against primary act text on the Arkansas General Assembly site: (1) ACT 423 OF 2021 (HB 1449, 'Carmack's Law', Rep. Hawks), approved 3/23/2021, effective on the general 2021 effective date (no emergency clause), renumbered 28-41-101(a) from (a)(1)-(5) to (a)(1)(A)-(E) and added new (a)(2) allowing a distributee to open an estate checking/savings account without probate. It did not change the $100,000 figure (the act's stricken/underlined text shows $100,000 as pre-existing law). (2) ACT 1021 OF 2017 (HB 1382, Rep. Gazaway), approved 4/6/2017, rewrote 28-41-102(d) to condition the self-issued deed of distribution for real property on the 3-month claim period lapsing with no unsatisfied claim, and added 28-41-102(e) requiring the distributee to open formal administration (with a new fee and new publication) if a claim is presented in that window. (3) Official Form 23 was revised in 2019 to add affiant contact-information lines; the threshold on the form was earlier raised from $50,000 to $100,000 at the direction of the Arkansas Supreme Court Committee on Civil Practice to conform to the statute. Arkansas 2026 was a fiscal session (budget matters), so no probate amendment was expected there. Nothing in Arkansas is indexed to inflation.

• Ark. Code Ann. § 28-41-101 (Collection of small estates by distributee)
• Ark. Code Ann. § 28-41-101(a)(1)(B) (45-day waiting period)
• Ark. Code Ann. § 28-41-101(a)(1)(C)(i)-(ii) ($100,000 cap; homestead and statutory allowances excluded from the computation)
• Ark. Code Ann. § 28-41-101(a)(1)(D)(i)-(iv) (required affidavit contents)
• Ark. Code Ann. § 28-41-101(a)(2) (distributee may open estate checking/savings account without probate, added by Act 423 of 2021, 'Carmack's Law')
• Ark. Code Ann. § 28-41-101(b)(1)(A)-(D) (clerk files/indexes; $25 filing fee, $5 per certified copy; no court order or other proceeding necessary; no extra fee if a will is attached)
• Ark. Code Ann. § 28-41-101(b)(2)(A)-(C) (real property: publish notice within 30 days; statutory notice form; publication per §§ 28-1-112(b)(4) and 28-40-111(a)(4))
• Ark. Code Ann. § 28-41-102(a) (safe harbor: payor released to same extent as if paid to a personal representative)
• Ark. Code Ann. § 28-41-102(b) (distributee takes as trustee; answerable to prior-right holders and to a later-appointed personal representative; real-property claims barred after 3 months)
• Ark. Code Ann. § 28-41-102(c) (action to compel delivery if institution refuses)
• Ark. Code Ann. § 28-41-102(d) (deed of distribution for real property after 3-month claim period; notice to county assessor, added by Act 1021 of 2017)
• Ark. Code Ann. § 28-41-102(e) (if a claim is presented within 3 months, distributee must open formal administration, added by Act 1021 of 2017)
• Ark. Code Ann. § 28-41-103 (Petition and order for no administration, separate court-order route where personal property does not exceed spouse/minor children's dower, curtesy and statutory allowances)
• Ark. Code Ann. § 28-41-104 (revocation of § 28-41-103 order within one year)
• Ark. Code Ann. § 28-53-101 (Determination of heirship, judicial proceeding)
• Ark. Code Ann. § 18-12-108 (scrivener's affidavit, heirship/death affidavit recorded in land records; evidentiary only)
• Ark. Code Ann. § 28-40-103 (5-year limit for probate and administration)

• codes.findlaw.com(opens in a new tab)
• codes.findlaw.com(opens in a new tab)
• arkleg.state.ar.us(opens in a new tab)
• webftp.blr.arkansas.gov(opens in a new tab)
• arcourts.gov(opens in a new tab)
• arcourts.gov(opens in a new tab)
• a.arlawhelp.org(opens in a new tab)
• a.arlawhelp.org(opens in a new tab)

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