Ark. Code Ann. § 28-2-212 — AR Code / Title 28 / Chapter 2 / Subchapter 2 / Section 28-2-212
Delivery or filing
Status: in_force

(a) In this section, "beneficiary designation" means an instrument, other than an instrument creating a trust, naming the beneficiary of: (1) an annuity or insurance policy; (2) an account with a designation for payment on death; (3) a security registered in beneficiary form; (4) a pension, profit-sharing, retirement, or other employment-related benefit plan; or (5) any other nonprobate transfer at death. (b) Subject to subsections (c) through (l), delivery of a disclaimer may be effected by personal delivery, first-class mail, or any other method likely to result in its receipt. (c) In the case of an interest created under the law of intestate succession or an interest created by will, other than an interest in a testamentary trust: (1) a disclaimer must be delivered to the personal representative of the decedent's estate; or (2) if no personal representative is then serving, it must be filed with a court having jurisdiction to appoint the personal representative. (d) In the case of an interest in a testamentary trust: (1) a disclaimer must be delivered to the trustee then serving, or if no trustee is then serving, to the personal representative of the decedent's estate; or (2) if no personal representative is then serving, it must be filed with a court having jurisdiction to enforce the trust. (e) In the case of an interest in an inter vivos trust: (1) a disclaimer must be delivered to the trustee then serving; (2) if no trustee is then serving, it must be filed with a court having jurisdiction to enforce the trust; or (3) if the disclaimer is made before the time the instrument creating the trust becomes irrevocable, it must be delivered to the settlor of a revocable trust or the transferor of the interest. (f) In the case of an interest created by a beneficiary designation made before the time the designation becomes irrevocable, a disclaimer must be delivered to the person making the beneficiary designation. (g) In the case of an interest created by a beneficiary designation made after the time the designation becomes irrevocable, a disclaimer must be delivered to the person obligated to distribute the interest. (h) In the case of a disclaimer by a surviving holder of jointly held property, the disclaimer must be delivered to the person to whom the disclaimed interest passes. (i) In the case of a disclaimer by an object or taker in default of exercise of a power of appointment at any time after the power was created: (1) the disclaimer must be delivered to the holder of the power or to the fiduciary acting under the instrument that created the power; or (2) if no fiduciary is then serving, it must be filed with a court having authority to appoint the fiduciary. (j) In the case of a disclaimer by an appointee of a nonfiduciary power of appointment: (1) the disclaimer must be delivered to the holder, the personal representative of the holder's estate, or to the fiduciary under the instrument that created the power; or (2) if no fiduciary is then serving, it must be filed with a court having authority to appoint the fiduciary. (k) In the case of a disclaimer by a fiduciary of a power over a trust or estate, the disclaimer must be delivered as provided in subsection (c), (d), or (e), as if the power disclaimed were an interest in property. (l) In the case of a disclaimer of a power by an agent, the disclaimer must be delivered to the principal or the principal's representative. Acts 2003, No. 610, § 12.

(a) In this section, "beneficiary designation" means an instrument, other than an instrument creating a trust, naming the beneficiary of: (1) an annuity or insurance policy; (2) an account with a designation for payment on death; (3) a security registered in beneficiary form; (4) a pension, profit-sharing, retirement, or other employment-related benefit plan; or (5) any other nonprobate transfer at death.

(1) an annuity or insurance policy;

(2) an account with a designation for payment on death;

(3) a security registered in beneficiary form;

(4) a pension, profit-sharing, retirement, or other employment-related benefit plan; or

(5) any other nonprobate transfer at death.

(b) Subject to subsections (c) through (l), delivery of a disclaimer may be effected by personal delivery, first-class mail, or any other method likely to result in its receipt.

(c) In the case of an interest created under the law of intestate succession or an interest created by will, other than an interest in a testamentary trust: (1) a disclaimer must be delivered to the personal representative of the decedent's estate; or (2) if no personal representative is then serving, it must be filed with a court having jurisdiction to appoint the personal representative.

(1) a disclaimer must be delivered to the personal representative of the decedent's estate; or

(2) if no personal representative is then serving, it must be filed with a court having jurisdiction to appoint the personal representative.

(d) In the case of an interest in a testamentary trust: (1) a disclaimer must be delivered to the trustee then serving, or if no trustee is then serving, to the personal representative of the decedent's estate; or (2) if no personal representative is then serving, it must be filed with a court having jurisdiction to enforce the trust.

(1) a disclaimer must be delivered to the trustee then serving, or if no trustee is then serving, to the personal representative of the decedent's estate; or

(2) if no personal representative is then serving, it must be filed with a court having jurisdiction to enforce the trust.

(e) In the case of an interest in an inter vivos trust: (1) a disclaimer must be delivered to the trustee then serving; (2) if no trustee is then serving, it must be filed with a court having jurisdiction to enforce the trust; or (3) if the disclaimer is made before the time the instrument creating the trust becomes irrevocable, it must be delivered to the settlor of a revocable trust or the transferor of the interest.

(1) a disclaimer must be delivered to the trustee then serving;

(2) if no trustee is then serving, it must be filed with a court having jurisdiction to enforce the trust; or

(3) if the disclaimer is made before the time the instrument creating the trust becomes irrevocable, it must be delivered to the settlor of a revocable trust or the transferor of the interest.

(f) In the case of an interest created by a beneficiary designation made before the time the designation becomes irrevocable, a disclaimer must be delivered to the person making the beneficiary designation.

(g) In the case of an interest created by a beneficiary designation made after the time the designation becomes irrevocable, a disclaimer must be delivered to the person obligated to distribute the interest.

(h) In the case of a disclaimer by a surviving holder of jointly held property, the disclaimer must be delivered to the person to whom the disclaimed interest passes.

(i) In the case of a disclaimer by an object or taker in default of exercise of a power of appointment at any time after the power was created: (1) the disclaimer must be delivered to the holder of the power or to the fiduciary acting under the instrument that created the power; or (2) if no fiduciary is then serving, it must be filed with a court having authority to appoint the fiduciary.

(1) the disclaimer must be delivered to the holder of the power or to the fiduciary acting under the instrument that created the power; or

(2) if no fiduciary is then serving, it must be filed with a court having authority to appoint the fiduciary.

(j) In the case of a disclaimer by an appointee of a nonfiduciary power of appointment: (1) the disclaimer must be delivered to the holder, the personal representative of the holder's estate, or to the fiduciary under the instrument that created the power; or (2) if no fiduciary is then serving, it must be filed with a court having authority to appoint the fiduciary.

(1) the disclaimer must be delivered to the holder, the personal representative of the holder's estate, or to the fiduciary under the instrument that created the power; or

(2) if no fiduciary is then serving, it must be filed with a court having authority to appoint the fiduciary.

(k) In the case of a disclaimer by a fiduciary of a power over a trust or estate, the disclaimer must be delivered as provided in subsection (c), (d), or (e), as if the power disclaimed were an interest in property.

(l) In the case of a disclaimer of a power by an agent, the disclaimer must be delivered to the principal or the principal's representative.

Acts 2003, No. 610, § 12.
Ark. Code Ann. § 28-65-705 — AR Code / Title 28 / Chapter 65 / Subchapter 7 / Section 28-65-705
No bond, fee, or copy charge required
Status: in_force

(a) Bond shall not be required in connection with public guardian services under this subchapter. (b) A fee may not be charged or collected by the circuit clerk or county clerk in connection with public guardian services under this subchapter, including without limitation fees for filing, summons, or subpoenas. (c) The Department of Human Services is not required to pay for a copy of medical, mental health, financial, or other records that relate to a ward who is under the guardianship of a Public Guardian for Adults. Amended by Act 2019, No. 955,§ 3, eff. 7/24/2019. Amended by Act 2015, No. 1203,§ 5, eff. 7/22/2015. Acts 2007, No. 862, § 4.

(a) Bond shall not be required in connection with public guardian services under this subchapter.

(b) A fee may not be charged or collected by the circuit clerk or county clerk in connection with public guardian services under this subchapter, including without limitation fees for filing, summons, or subpoenas.

(c) The Department of Human Services is not required to pay for a copy of medical, mental health, financial, or other records that relate to a ward who is under the guardianship of a Public Guardian for Adults.

Amended by Act 2019, No. 955,§ 3, eff. 7/24/2019.

Amended by Act 2015, No. 1203,§ 5, eff. 7/22/2015.

Acts 2007, No. 862, § 4.
Ark. Code Ann. § 28-77-501 — AR Code / Title 28 / Chapter 77 / Subchapter 5 / Section 28-77-501
Disbursement from income
Status: in_force

Subject to § 28-77-504 , and except as otherwise provided in § 28-77-601(c)(2) or § 28-77-601(c)(3) , a fiduciary shall disburse from income: (1) one-half of: (A) the regular compensation of the fiduciary and any person providing investment advisory, custodial, or other services to the fiduciary, to the extent income is sufficient; and (B) an expense for an accounting, judicial or nonjudicial proceeding, or other matter that involves both income and successive interests, to the extent income is sufficient; (2) the balance of the disbursements described in paragraph (1), to the extent a fiduciary that is an independent person determines that making those disbursements from income would be in the interests of the beneficiaries; (3) another ordinary expense incurred in connection with administration, management, or preservation of property and distribution of income, including interest, an ordinary repair, regularly recurring tax assessed against principal, and an expense of an accounting, judicial or nonjudicial proceeding, or other matter that involves primarily an income interest, to the extent income is sufficient; and (4) a premium on insurance covering loss of a principal asset or income from or use of the asset. Added by Act 2021, No. 1088,§ 2, eff. 1/1/2022.

Subject to § 28-77-504 , and except as otherwise provided in § 28-77-601(c)(2) or § 28-77-601(c)(3) , a fiduciary shall disburse from income:

(1) one-half of: (A) the regular compensation of the fiduciary and any person providing investment advisory, custodial, or other services to the fiduciary, to the extent income is sufficient; and (B) an expense for an accounting, judicial or nonjudicial proceeding, or other matter that involves both income and successive interests, to the extent income is sufficient;

(A) the regular compensation of the fiduciary and any person providing investment advisory, custodial, or other services to the fiduciary, to the extent income is sufficient; and

(B) an expense for an accounting, judicial or nonjudicial proceeding, or other matter that involves both income and successive interests, to the extent income is sufficient;

(2) the balance of the disbursements described in paragraph (1), to the extent a fiduciary that is an independent person determines that making those disbursements from income would be in the interests of the beneficiaries;

(3) another ordinary expense incurred in connection with administration, management, or preservation of property and distribution of income, including interest, an ordinary repair, regularly recurring tax assessed against principal, and an expense of an accounting, judicial or nonjudicial proceeding, or other matter that involves primarily an income interest, to the extent income is sufficient; and

(4) a premium on insurance covering loss of a principal asset or income from or use of the asset.

Added by Act 2021, No. 1088,§ 2, eff. 1/1/2022.
Ark. Code Ann. § 28-67-103 — AR Code / Title 28 / Chapter 67 / Section 28-67-103
Petition for appointment
Status: in_force

A hearing may be had upon a petition for appointment of a conservator when: (1) It is represented to the circuit court, upon verified petition of any person or any relative or friend, that a person is an inhabitant or resident of the county and by reason of advanced age or physical disability is unable to manage his or her property; and (2) The person, if not himself or herself the petitioner, voluntarily consents to the granting of the petition and, if able to attend, is produced before the court at the hearing. Acts 1975, No. 372, § 1; A.S.A. 1947, § 57-701.

A hearing may be had upon a petition for appointment of a conservator when:

(1) It is represented to the circuit court, upon verified petition of any person or any relative or friend, that a person is an inhabitant or resident of the county and by reason of advanced age or physical disability is unable to manage his or her property; and

(2) The person, if not himself or herself the petitioner, voluntarily consents to the granting of the petition and, if able to attend, is produced before the court at the hearing.

Acts 1975, No. 372, § 1; A.S.A. 1947, § 57-701.
Ark. Code Ann. § 28-77-507 — AR Code / Title 28 / Chapter 77 / Subchapter 5 / Section 28-77-507
Adjustment between income and principal because of taxes
Status: in_force

(a) A fiduciary may make an adjustment between income and principal to offset the shifting of economic interests or tax benefits between current income beneficiaries and successor beneficiaries which arises from: (1) an election or decision the fiduciary makes regarding a tax matter, other than a decision to claim an income tax deduction to which subsection (b) applies; (2) an income tax or other tax imposed on the fiduciary or a beneficiary as a result of a transaction involving the fiduciary or a distribution by the fiduciary; or (3) ownership by the fiduciary of an interest in an entity a part of whose taxable income, whether or not distributed, is includable in the taxable income of the fiduciary or a beneficiary. (b) If the amount of an estate tax marital or charitable deduction is reduced because a fiduciary deducts an amount paid from principal for income tax purposes instead of deducting it for estate tax purposes and, as a result, estate taxes paid from principal are increased and income taxes paid by the fiduciary or a beneficiary are decreased, the fiduciary shall charge each beneficiary that benefits from the decrease in income tax to reimburse the principal from which the increase in estate tax is paid. The total reimbursement must equal the increase in the estate tax, to the extent the principal used to pay the increase would have qualified for a marital or charitable deduction but for the payment. The share of the reimbursement for each fiduciary or beneficiary whose income taxes are reduced must be the same as its share of the total decrease in income tax. (c) A fiduciary that charges a beneficiary under subsection (b) may offset the charge by obtaining payment from the beneficiary, withholding an amount from future distributions to the beneficiary, or adopting another method or combination of methods. Added by Act 2021, No. 1088,§ 2, eff. 1/1/2022.

(a) A fiduciary may make an adjustment between income and principal to offset the shifting of economic interests or tax benefits between current income beneficiaries and successor beneficiaries which arises from: (1) an election or decision the fiduciary makes regarding a tax matter, other than a decision to claim an income tax deduction to which subsection (b) applies; (2) an income tax or other tax imposed on the fiduciary or a beneficiary as a result of a transaction involving the fiduciary or a distribution by the fiduciary; or (3) ownership by the fiduciary of an interest in an entity a part of whose taxable income, whether or not distributed, is includable in the taxable income of the fiduciary or a beneficiary.

(1) an election or decision the fiduciary makes regarding a tax matter, other than a decision to claim an income tax deduction to which subsection (b) applies;

(2) an income tax or other tax imposed on the fiduciary or a beneficiary as a result of a transaction involving the fiduciary or a distribution by the fiduciary; or

(3) ownership by the fiduciary of an interest in an entity a part of whose taxable income, whether or not distributed, is includable in the taxable income of the fiduciary or a beneficiary.

(b) If the amount of an estate tax marital or charitable deduction is reduced because a fiduciary deducts an amount paid from principal for income tax purposes instead of deducting it for estate tax purposes and, as a result, estate taxes paid from principal are increased and income taxes paid by the fiduciary or a beneficiary are decreased, the fiduciary shall charge each beneficiary that benefits from the decrease in income tax to reimburse the principal from which the increase in estate tax is paid. The total reimbursement must equal the increase in the estate tax, to the extent the principal used to pay the increase would have qualified for a marital or charitable deduction but for the payment. The share of the reimbursement for each fiduciary or beneficiary whose income taxes are reduced must be the same as its share of the total decrease in income tax.

(c) A fiduciary that charges a beneficiary under subsection (b) may offset the charge by obtaining payment from the beneficiary, withholding an amount from future distributions to the beneficiary, or adopting another method or combination of methods.

Added by Act 2021, No. 1088,§ 2, eff. 1/1/2022.
Ark. Code Ann. § 28-48-201 — AR Code / Title 28 / Chapter 48 / Subchapter 2 / Section 28-48-201
Bond
Status: in_force

(a) Prior to the issuance of letters of administration or at any time during the pendency of the matter, the court may require a bond from the personal representative with a corporate surety authorized to do business in this state for the benefit of the interested parties, or such other bond that the court deems appropriate. (b) (1) If a person or entity asserting a claim against the estate or having or claiming any interest in the estate files a written demand, the court shall: (A) Immediately direct that a bond be secured or increased; or (B) Hold a hearing at the earliest reasonable date to consider whether a bond shall be secured or increased and, if a bond will be secured or increased, the amount of the bond or increase of bond. (2) In the event that a bond is ordered or increased by the court upon written demand under subdivision (b)(1)(A) of this section, the personal representative may request an immediate hearing for reconsideration of the bond. (c) When two (2) or more persons are appointed personal representatives of the same estate and are required to give a bond, the court may require either a separate bond from each or one (1) bond from all of them. Amended by Act 2023, No. 326,§ 3, eff. 8/1/2023. Acts 1949, No. 140, §§ 80, 84; A.S.A. 1947, §§ 62-2211, 62-2215.

(a) Prior to the issuance of letters of administration or at any time during the pendency of the matter, the court may require a bond from the personal representative with a corporate surety authorized to do business in this state for the benefit of the interested parties, or such other bond that the court deems appropriate.

(b) (1) If a person or entity asserting a claim against the estate or having or claiming any interest in the estate files a written demand, the court shall: (A) Immediately direct that a bond be secured or increased; or (B) Hold a hearing at the earliest reasonable date to consider whether a bond shall be secured or increased and, if a bond will be secured or increased, the amount of the bond or increase of bond. (2) In the event that a bond is ordered or increased by the court upon written demand under subdivision (b)(1)(A) of this section, the personal representative may request an immediate hearing for reconsideration of the bond.

(1) If a person or entity asserting a claim against the estate or having or claiming any interest in the estate files a written demand, the court shall: (A) Immediately direct that a bond be secured or increased; or (B) Hold a hearing at the earliest reasonable date to consider whether a bond shall be secured or increased and, if a bond will be secured or increased, the amount of the bond or increase of bond.

(A) Immediately direct that a bond be secured or increased; or

(B) Hold a hearing at the earliest reasonable date to consider whether a bond shall be secured or increased and, if a bond will be secured or increased, the amount of the bond or increase of bond.

(2) In the event that a bond is ordered or increased by the court upon written demand under subdivision (b)(1)(A) of this section, the personal representative may request an immediate hearing for reconsideration of the bond.

(c) When two (2) or more persons are appointed personal representatives of the same estate and are required to give a bond, the court may require either a separate bond from each or one (1) bond from all of them.

Amended by Act 2023, No. 326,§ 3, eff. 8/1/2023.

Acts 1949, No. 140, §§ 80, 84; A.S.A. 1947, §§ 62-2211, 62-2215.
Ark. Code Ann. § 28-11-405 — AR Code / Title 28 / Chapter 11 / Subchapter 4 / Section 28-11-405
Forfeiture
Status: in_force

Every jointure, devise, and pecuniary provision, in lieu of dower or curtesy, shall be forfeited by the spouse for whose benefit it shall be made, in the same cases in which the spouse would forfeit his or her dower or curtesy, as the case may be. Upon such a forfeiture, any estate so conveyed for jointure and every pecuniary provision so made shall immediately vest in the person, or his or her legal representatives, in whom they would have vested on the determination of the spouse's interest therein by the death of the spouse. Rev. Stat., ch. 52, § 15; C. & M. Dig., § 3528; Pope's Dig., § 4412; Acts 1981, No. 714, § 36; A.S.A. 1947, § 61-220.

Every jointure, devise, and pecuniary provision, in lieu of dower or curtesy, shall be forfeited by the spouse for whose benefit it shall be made, in the same cases in which the spouse would forfeit his or her dower or curtesy, as the case may be. Upon such a forfeiture, any estate so conveyed for jointure and every pecuniary provision so made shall immediately vest in the person, or his or her legal representatives, in whom they would have vested on the determination of the spouse's interest therein by the death of the spouse.

Rev. Stat., ch. 52, § 15; C. & M. Dig., § 3528; Pope's Dig., § 4412; Acts 1981, No. 714, § 36; A.S.A. 1947, § 61-220.
Ark. Code Ann. § 28-72-415 — AR Code / Title 28 / Chapter 72 / Subchapter 4 / Section 28-72-415
Reporting and accounting by custodial trustee - Determination of liability of custodial trustee
Status: in_force

(a) Upon the acceptance of custodial trust property, the custodial trustee shall provide a written statement describing the custodial trust property and shall thereafter provide a written statement of the administration of the custodial trust property (i) once each year, (ii) upon request at reasonable times by the beneficiary or the beneficiary's legal representative, (iii) upon resignation or removal of the custodial trustee, and (iv) upon termination of the custodial trust. The statements must be provided to the beneficiary or to the beneficiary's legal representative, if any. Upon termination of the beneficiary's interest, the custodial trustee shall furnish a current statement to the person to whom the custodial trust property is to be delivered. (b) A beneficiary, the beneficiary's legal representative, an adult member of the beneficiary's family, a person interested in the custodial trust property, or a person interested in the welfare of the beneficiary may petition the court for an accounting by the custodial trustee or the custodial trustee's legal representative. (c) A successor custodial trustee may petition the court for an accounting by a predecessor custodial trustee. (d) In an action or proceeding under this subchapter or in any other proceeding, the court may require or permit the custodial trustee or the custodial trustee's legal representative to account. The custodial trustee or the custodial trustee's legal representative may petition the court for approval of final accounts. (e) If a custodial trustee is removed, the court shall require an accounting and order delivery of the custodial trust property and records to the successor custodial trustee and the execution of all instruments required for transfer of the custodial trust property. (f) On petition of the custodial trustee or any person who could petition for an accounting, the court, after notice to interested persons, may issue instructions to the custodial trustee or review the propriety of the acts of a custodial trustee or the reasonableness of compensation determined by the custodial trustee for the services of the custodial trustee or others. Acts 1991, No. 273, § 15.

(a) Upon the acceptance of custodial trust property, the custodial trustee shall provide a written statement describing the custodial trust property and shall thereafter provide a written statement of the administration of the custodial trust property (i) once each year, (ii) upon request at reasonable times by the beneficiary or the beneficiary's legal representative, (iii) upon resignation or removal of the custodial trustee, and (iv) upon termination of the custodial trust. The statements must be provided to the beneficiary or to the beneficiary's legal representative, if any. Upon termination of the beneficiary's interest, the custodial trustee shall furnish a current statement to the person to whom the custodial trust property is to be delivered.

(b) A beneficiary, the beneficiary's legal representative, an adult member of the beneficiary's family, a person interested in the custodial trust property, or a person interested in the welfare of the beneficiary may petition the court for an accounting by the custodial trustee or the custodial trustee's legal representative.

(c) A successor custodial trustee may petition the court for an accounting by a predecessor custodial trustee.

(d) In an action or proceeding under this subchapter or in any other proceeding, the court may require or permit the custodial trustee or the custodial trustee's legal representative to account. The custodial trustee or the custodial trustee's legal representative may petition the court for approval of final accounts.

(e) If a custodial trustee is removed, the court shall require an accounting and order delivery of the custodial trust property and records to the successor custodial trustee and the execution of all instruments required for transfer of the custodial trust property.

(f) On petition of the custodial trustee or any person who could petition for an accounting, the court, after notice to interested persons, may issue instructions to the custodial trustee or review the propriety of the acts of a custodial trustee or the reasonableness of compensation determined by the custodial trustee for the services of the custodial trustee or others.

Acts 1991, No. 273, § 15.
Ark. Code Ann. § 28-68-114 — AR Code / Title 28 / Chapter 68 / Subchapter 1 / Section 28-68-114
Agent's duties
Status: in_force

(a) Notwithstanding provisions in the power of attorney, an agent that has accepted appointment shall: (1) act in accordance with the principal's reasonable expectations to the extent actually known by the agent and, otherwise, in the principal's best interest; (2) act in good faith; and (3) act only within the scope of authority granted in the power of attorney. (b) Except as otherwise provided in the power of attorney, an agent that has accepted appointment shall: (1) act loyally for the principal's benefit; (2) act so as not to create a conflict of interest that impairs the agent's ability to act impartially in the principal's best interest; (3) act with the care, competence, and diligence ordinarily exercised by agents in similar circumstances; (4) keep a record of all receipts, disbursements, and transactions made on behalf of the principal; (5) cooperate with a person that has authority to make health-care decisions for the principal to carry out the principal's reasonable expectations to the extent actually known by the agent and, otherwise, act in the principal's best interest; and (6) attempt to preserve the principal's estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the principal's best interest based on all relevant factors, including: (A) the value and nature of the principal's property; (B) the principal's foreseeable obligations and need for maintenance; (C) minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes; and (D) eligibility for a benefit, a program, or assistance under a statute or regulation. (c) An agent that acts in good faith is not liable to any beneficiary of the principal's estate plan for failure to preserve the plan. (d) An agent that acts with care, competence, and diligence for the best interest of the principal is not liable solely because the agent also benefits from the act or has an individual or conflicting interest in relation to the property or affairs of the principal. (e) If an agent is selected by the principal because of special skills or expertise possessed by the agent or in reliance on the agent's representation that the agent has special skills or expertise, the special skills or expertise must be considered in determining whether the agent has acted with care, competence, and diligence under the circumstances. (f) Absent a breach of duty to the principal, an agent is not liable if the value of the principal's property declines. (g) An agent that exercises authority to delegate to another person the authority granted by the principal or that engages another person on behalf of the principal is not liable for an act, error of judgment, or default of that person if the agent exercises care, competence, and diligence in selecting and monitoring the person. (h) Except as otherwise provided in the power of attorney, an agent is not required to disclose receipts, disbursements, or transactions conducted on behalf of the principal unless ordered by a court or requested by the principal, a guardian, a conservator, another fiduciary acting for the principal, a governmental agency having authority to protect the welfare of the principal, or, upon the death of the principal, by the personal representative or successor in interest of the principal's estate. If so requested, within 30 days the agent shall comply with the request or provide a writing or other record substantiating why additional time is needed and shall comply with the request within an additional 30 days. Acts 2011, No. 805, § 1.

(a) Notwithstanding provisions in the power of attorney, an agent that has accepted appointment shall: (1) act in accordance with the principal's reasonable expectations to the extent actually known by the agent and, otherwise, in the principal's best interest; (2) act in good faith; and (3) act only within the scope of authority granted in the power of attorney.

(1) act in accordance with the principal's reasonable expectations to the extent actually known by the agent and, otherwise, in the principal's best interest;

(2) act in good faith; and

(3) act only within the scope of authority granted in the power of attorney.

(b) Except as otherwise provided in the power of attorney, an agent that has accepted appointment shall: (1) act loyally for the principal's benefit; (2) act so as not to create a conflict of interest that impairs the agent's ability to act impartially in the principal's best interest; (3) act with the care, competence, and diligence ordinarily exercised by agents in similar circumstances; (4) keep a record of all receipts, disbursements, and transactions made on behalf of the principal; (5) cooperate with a person that has authority to make health-care decisions for the principal to carry out the principal's reasonable expectations to the extent actually known by the agent and, otherwise, act in the principal's best interest; and (6) attempt to preserve the principal's estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the principal's best interest based on all relevant factors, including: (A) the value and nature of the principal's property; (B) the principal's foreseeable obligations and need for maintenance; (C) minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes; and (D) eligibility for a benefit, a program, or assistance under a statute or regulation.

(1) act loyally for the principal's benefit;

(2) act so as not to create a conflict of interest that impairs the agent's ability to act impartially in the principal's best interest;

(3) act with the care, competence, and diligence ordinarily exercised by agents in similar circumstances;

(4) keep a record of all receipts, disbursements, and transactions made on behalf of the principal;

(5) cooperate with a person that has authority to make health-care decisions for the principal to carry out the principal's reasonable expectations to the extent actually known by the agent and, otherwise, act in the principal's best interest; and

(6) attempt to preserve the principal's estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the principal's best interest based on all relevant factors, including: (A) the value and nature of the principal's property; (B) the principal's foreseeable obligations and need for maintenance; (C) minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes; and (D) eligibility for a benefit, a program, or assistance under a statute or regulation.

(A) the value and nature of the principal's property;

(B) the principal's foreseeable obligations and need for maintenance;

(C) minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes; and

(D) eligibility for a benefit, a program, or assistance under a statute or regulation.

(c) An agent that acts in good faith is not liable to any beneficiary of the principal's estate plan for failure to preserve the plan.

(d) An agent that acts with care, competence, and diligence for the best interest of the principal is not liable solely because the agent also benefits from the act or has an individual or conflicting interest in relation to the property or affairs of the principal.

(e) If an agent is selected by the principal because of special skills or expertise possessed by the agent or in reliance on the agent's representation that the agent has special skills or expertise, the special skills or expertise must be considered in determining whether the agent has acted with care, competence, and diligence under the circumstances.

(f) Absent a breach of duty to the principal, an agent is not liable if the value of the principal's property declines.

(g) An agent that exercises authority to delegate to another person the authority granted by the principal or that engages another person on behalf of the principal is not liable for an act, error of judgment, or default of that person if the agent exercises care, competence, and diligence in selecting and monitoring the person.

(h) Except as otherwise provided in the power of attorney, an agent is not required to disclose receipts, disbursements, or transactions conducted on behalf of the principal unless ordered by a court or requested by the principal, a guardian, a conservator, another fiduciary acting for the principal, a governmental agency having authority to protect the welfare of the principal, or, upon the death of the principal, by the personal representative or successor in interest of the principal's estate. If so requested, within 30 days the agent shall comply with the request or provide a writing or other record substantiating why additional time is needed and shall comply with the request within an additional 30 days.

Acts 2011, No. 805, § 1.
Ark. Code Ann. § 28-71-104 — AR Code / Title 28 / Chapter 71 / Section 28-71-104
Additional authority to invest funds
Status: in_force

(a) Unless prohibited by will, deed, trust, court order, or other instrument establishing the fiduciary relationship or unless another mode of investment is prescribed by any such instrument, trustees, guardians, and personal representatives, in addition to methods of investment now authorized by law, may invest all funds held in trust or for investment as provided in this chapter. (b) In addition to other investments authorized by law for the investment of funds held by a fiduciary, or by the instrument governing the fiduciary relationship, and notwithstanding any other provision of law, a bank or trust company acting as a fiduciary, agent, or otherwise may, in the exercise of its investment discretion or at the direction of another person authorized to direct investment of funds held by a bank or trust company as fiduciary, invest and reinvest in the securities of an open-end or closed-end management investment company or investment trust registered under the Investment Company Act of 1940, 15 U.S.C. § 80a-1 et seq., as amended, so long as the portfolio of the investment company or investment trust consists substantially of investments not prohibited by the governing instrument. (c) The fact that such a bank or trust company or an affiliate of the bank or trust company provides services to the investment company or investment trust such as that of an investment advisor, custodian, transfer agent, registrar, sponsor, distributor, manager, or otherwise and is receiving reasonable compensation for those services shall not preclude the bank or trust company from investing or reinvesting in the securities of the open-end or closed-end management investment trust registered under the Investment Company Act of 1940, 15 U.S.C. § 80a-1 et seq., as amended. Acts 1955, No. 121, § 1; A.S.A. 1947, § 58-301; Acts 1993, No. 482, § 1.

(a) Unless prohibited by will, deed, trust, court order, or other instrument establishing the fiduciary relationship or unless another mode of investment is prescribed by any such instrument, trustees, guardians, and personal representatives, in addition to methods of investment now authorized by law, may invest all funds held in trust or for investment as provided in this chapter.

(b) In addition to other investments authorized by law for the investment of funds held by a fiduciary, or by the instrument governing the fiduciary relationship, and notwithstanding any other provision of law, a bank or trust company acting as a fiduciary, agent, or otherwise may, in the exercise of its investment discretion or at the direction of another person authorized to direct investment of funds held by a bank or trust company as fiduciary, invest and reinvest in the securities of an open-end or closed-end management investment company or investment trust registered under the Investment Company Act of 1940, 15 U.S.C. § 80a-1 et seq., as amended, so long as the portfolio of the investment company or investment trust consists substantially of investments not prohibited by the governing instrument.

(c) The fact that such a bank or trust company or an affiliate of the bank or trust company provides services to the investment company or investment trust such as that of an investment advisor, custodian, transfer agent, registrar, sponsor, distributor, manager, or otherwise and is receiving reasonable compensation for those services shall not preclude the bank or trust company from investing or reinvesting in the securities of the open-end or closed-end management investment trust registered under the Investment Company Act of 1940, 15 U.S.C. § 80a-1 et seq., as amended.

Acts 1955, No. 121, § 1; A.S.A. 1947, § 58-301; Acts 1993, No. 482, § 1.
Ark. Code Ann. § 28-66-108 — AR Code / Title 28 / Chapter 66 / Section 28-66-108
Notice
Status: in_force

Upon the filing of a petition for the appointment of a guardian under this chapter, notice shall be given to the ward, to such other persons, and in such manner as is provided by the general law of this state, and also to the Veterans' Administration as provided by this chapter. Acts 1943, No. 177, § 8; A.S.A. 1947, § 57-508.

Upon the filing of a petition for the appointment of a guardian under this chapter, notice shall be given to the ward, to such other persons, and in such manner as is provided by the general law of this state, and also to the Veterans' Administration as provided by this chapter.

Acts 1943, No. 177, § 8; A.S.A. 1947, § 57-508.
Ark. Code Ann. § 28-73-818 — AR Code / Title 28 / Chapter 73 / Subchapter 8 / Section 28-73-818
Discretionary powers - Appointment of property of one trust to another trust - Circumstances authorized - Definitions
Status: in_force

(a) As used in this section: (1) "Pooled trust" means a trust described in 42 U.S.C. § 1396p(d)(4)(C) , as it existed on January 1, 2023, that meets the requirements for that trust under any law or regulation of the State of Arkansas relating to the treatment of trusts for purposes of eligibility for Medicaid or other needs-based public assistance; (2) "Related or subordinate party" means any nonadverse party who is: (A) The grantor's spouse if living with the grantor; or (B) Any one (1) of the following: (i) The grantor's father, mother, issue, brother, or sister; (ii) An employee of the grantor; (iii) A corporation or any employee of a corporation in which the stock holdings of the grantor and the trust are significant from the viewpoint of voting control; or (iv) A subordinate employee of a corporation in which the grantor is an executive; (3) "Second trust" means an irrevocable trust that receives trust income or principal appointed by the trustee of the original trust, and may be established by any person, including without limitation a new trust created by the trustee of the original trust who is acting in that capacity; (4) "Special needs trust" means a trust under 42 U.S.C. § 1396p(d)(4)(A) , as it existed on January 1, 2023, that meets the requirements for that trust under any law or regulation of the State of Arkansas relating to the treatment of trusts for purposes of eligibility for Medicaid or other needs-based public assistance; (5) "Third-party trust" means a trust that is: (A) Established by a third party with the assets of the third party to provide for the supplemental needs of a person who is eligible for needs-based public assistance at or after the time of the creation of the trust; and (B) Exempt from the provisions of any law or regulation of the State of Arkansas relating to the treatment of trusts for purposes of eligibility for Medicaid; and (6) "Unitrust" means a trust for which net income is a unitrust amount and includes an express unitrust. (b) Except as otherwise provided in this section, unless the terms of a testamentary instrument or irrevocable trust provide otherwise, a trustee with discretion or authority to distribute trust income or principal to or for a beneficiary of the trust, whether acting in the trustee's own discretion or at the direction or with the consent of another party under the terms of the trust instrument, may exercise that discretion or authority by appointing the property subject to that discretion or authority in favor of a second trust as provided in this section. (c) (1) The second trust to which a trustee appoints property of the original trust may only have as beneficiaries one (1) or more of the beneficiaries of the original trust who are: (A) To or for whom a distribution of income or principal may be made from the original trust; (B) To or for whom a distribution of income or principal may be made in the future from the original trust at a time or upon the happening of an event specified under the original trust; or (C) Both subdivisions (c)(1)(A) and (B) of this section. (2) If the trustee of the original trust establishes the second trust, then for purposes of creating the new second trust, the requirement of the Arkansas Custodial Trust Act, § 28-72-401 et seq., that the instrument be signed by the settlor is satisfied by the signature of the trustee of the original trust. (3) The second trust may be a trust created under the original trust instrument, as modified after an appointment of property made under this section, or a different trust instrument. (4) If the second trust is created under the original trust instrument, as modified after an appointment of property made under this section, and is therefore the modified original trust, a trustee may exercise the power to appoint the trust property from the original trust to the second trust without an actual distribution of the property subject to the appointment. (5) For purposes of this subsection, a permissible appointee of a power of appointment exercised by a beneficiary of the second trust is not considered a beneficiary of the second trust. (d) A trustee may not appoint property of the original trust to a second trust if: (1) Appointing the property will reduce any income interest of any income beneficiary of the original trust if the original trust is: (A) A trust for which a marital deduction has been taken for federal or state income, gift, or estate tax purposes; (B) A trust for which a charitable deduction has been taken for federal or state income, gift, or estate tax purposes; or (C) A grantor-retained annuity trust interest or unitrust interest under 26 C.F.R. § 25.2702-3(b) and (c) ; (2) The property to be appointed is subject to a power of withdrawal that is held by a beneficiary of the original trust and may be executed at the time of the proposed appointment, unless after the exercise of that appointment, the beneficiary of the original trust's power of withdrawal is unchanged with respect to the trust property; and (3) A contribution made to the original trust is qualified for a gift tax exclusion under 26 U.S.C. § 2503(b) , as it existed on January 1, 2023, by reason of the application of 26 U.S.C. § 2503(c) , as it existed on January 1, 2023, unless the second trust provides that the beneficiary's remainder interest shall vest not later than the date upon which that interest would have vested under the terms of the original trust. (e) A trustee who is a beneficiary of the original trust may not exercise the authority to appoint property of the original trust to a second trust if: (1) Under the terms of the original trust or under law governing the administration of the original trust: (A) The trustee does not have discretion to make distributions to himself or herself; (B) The trustee's discretion to make distributions to himself or herself is limited by an ascertainable standard, and under the terms of the second trust, the trustee's discretion to make distributions to himself or herself is not limited by the same ascertainable standard; or (C) The trustee's discretion to make distributions to himself or herself can only be exercised with the consent of a cotrustee or a person holding an adverse interest and, under the terms of the second trust, the trustee's discretion to make distributions to himself or herself is not limited by an ascertainable standard and may be exercised without consent; or (2) Under the terms of the original trust or under law governing the administration of the original trust, the trustee of the original trust does not have discretion to make distributions that will discharge the trustee's legal support obligations but, under the second trust, the trustee's discretion is not limited. (f) Notwithstanding the provisions of subsection (b) of this section, a trustee who may be removed by a beneficiary of the original trust and replaced with a trustee that is a related or subordinate party to a beneficiary may not exercise the authority to appoint property of the original trust to a second trust to the extent that the exercise of the authority by such trustee would have the effect of increasing the distributions that may be made from the second trust to one (1) or more beneficiaries that held the power to remove the trustee of the original trust and replace that trustee with a related or subordinate person, unless the distributions that may be made from the second trust to such beneficiary or group of beneficiaries described in subdivision (e)(1) of this section are limited by an ascertainable standard. (g) The provisions of subsections (e) and (f) of this section do not prohibit a trustee who is not a beneficiary of the original trust or who may not be removed by a beneficiary and replaced with a trustee that is a related or subordinate party from exercising the authority to appoint property of the original trust to a second trust under subsection (b) of this section. (h) (1) Before appointing property under subsection (b) of this section, a trustee may give notice of a proposed action or may petition a court for approval. (2) Notice of a proposed action or a petition for a court's approval must include the trustee's opinion of how the appointment of property will affect the trustee's compensation and the administration of other trust expenses. (i) The trust instrument of the second trust may: (1) Grant a general or limited power of appointment to one (1) or more of the beneficiaries of the second trust who are beneficiaries of the original trust; and (2) Provide that, at a time or occurrence of an event specified in the trust instrument, the remaining trust assets in the second trust must be held for the beneficiaries of the original trust upon terms and conditions that are substantially identical to the terms and conditions of the original trust. (j) The power to appoint the property of the original trust under subsection (b) of this section must be exercised by a document that is signed by the trustee and filed with the records of the trust. (k) The exercise of the power to invade principal of the original trust under subsection (b) of this section is considered the exercise of a power of appointment, other than power to appoint the property to the trustee, the trustee's creditors, the trustee's estate, or the creditors of the trustee's estate and the provisions of § 18-3-101 et seq. apply to that power of appointment. (l) The provisions of this section do not: (1) Preclude the right of any trustee who has the power to appoint property that arises under any other law or under the terms of the original trust; or (2) Impose upon a trustee a duty to exercise the power to appoint property under subsection (b) of this section. (m) (1) The power to appoint property to another trust under subsection (b) of this section is not a power to amend the trust. (2) A trustee is not prohibited from appointing property to another trust under subsection (b) of this section if the original trust is irrevocable or provides that it may not be amended. (n) A trustee's power to appoint property to another trust under subsection (b) of this section is not limited by the existence of a spendthrift provision in the original trust. (o) A trustee exercising any power granted under this section may designate himself or herself or any other person permitted to act as a trustee as the trustee of the second trust. (p) The trustee of a second trust, resulting from the exercise of the power to appoint property to another trust under subsection (b) of this section, may also exercise the powers granted under this section with respect to the second trust. (q) (1) Except as otherwise provided under the terms of the trust, the power of a trustee to appoint property to another trust is in addition to any other powers conferred by the terms of the trust or under the laws of the State of Arkansas. (2) This section does not expand, restrict, eliminate, or otherwise alter any power that a person holds in a nonfiduciary capacity with respect to a trust. (r) A trustee's power to appoint property to another trust is an administrative act under this section and, therefore, regardless of whether a trust applies the laws of the State of Arkansas for construction or validity issues, this section applies to a trust that is governed by, situated in, or administered under the laws of the State of Arkansas, regardless of whether the trust is initially governed by, situated in, or administered under the laws of the State of Arkansas under the terms of the trust instrument or whether the governing law, situs, or administration of the trust is moved to the State of Arkansas from another state or foreign jurisdiction. (s) The power to appoint property to a second trust under this section may be exercised to appoint property to a second trust that is a: (1) Special needs trust; (2) Pooled trust; or (3) Third-party trust. Added by Act 2023, No. 293,§ 2, eff. 8/1/2023.

(a) As used in this section: (1) "Pooled trust" means a trust described in 42 U.S.C. § 1396p(d)(4)(C) , as it existed on January 1, 2023, that meets the requirements for that trust under any law or regulation of the State of Arkansas relating to the treatment of trusts for purposes of eligibility for Medicaid or other needs-based public assistance; (2) "Related or subordinate party" means any nonadverse party who is: (A) The grantor's spouse if living with the grantor; or (B) Any one (1) of the following: (i) The grantor's father, mother, issue, brother, or sister; (ii) An employee of the grantor; (iii) A corporation or any employee of a corporation in which the stock holdings of the grantor and the trust are significant from the viewpoint of voting control; or (iv) A subordinate employee of a corporation in which the grantor is an executive; (3) "Second trust" means an irrevocable trust that receives trust income or principal appointed by the trustee of the original trust, and may be established by any person, including without limitation a new trust created by the trustee of the original trust who is acting in that capacity; (4) "Special needs trust" means a trust under 42 U.S.C. § 1396p(d)(4)(A) , as it existed on January 1, 2023, that meets the requirements for that trust under any law or regulation of the State of Arkansas relating to the treatment of trusts for purposes of eligibility for Medicaid or other needs-based public assistance; (5) "Third-party trust" means a trust that is: (A) Established by a third party with the assets of the third party to provide for the supplemental needs of a person who is eligible for needs-based public assistance at or after the time of the creation of the trust; and (B) Exempt from the provisions of any law or regulation of the State of Arkansas relating to the treatment of trusts for purposes of eligibility for Medicaid; and (6) "Unitrust" means a trust for which net income is a unitrust amount and includes an express unitrust.

(1) "Pooled trust" means a trust described in 42 U.S.C. § 1396p(d)(4)(C) , as it existed on January 1, 2023, that meets the requirements for that trust under any law or regulation of the State of Arkansas relating to the treatment of trusts for purposes of eligibility for Medicaid or other needs-based public assistance;

(2) "Related or subordinate party" means any nonadverse party who is: (A) The grantor's spouse if living with the grantor; or (B) Any one (1) of the following: (i) The grantor's father, mother, issue, brother, or sister; (ii) An employee of the grantor; (iii) A corporation or any employee of a corporation in which the stock holdings of the grantor and the trust are significant from the viewpoint of voting control; or (iv) A subordinate employee of a corporation in which the grantor is an executive;

(A) The grantor's spouse if living with the grantor; or

(B) Any one (1) of the following: (i) The grantor's father, mother, issue, brother, or sister; (ii) An employee of the grantor; (iii) A corporation or any employee of a corporation in which the stock holdings of the grantor and the trust are significant from the viewpoint of voting control; or (iv) A subordinate employee of a corporation in which the grantor is an executive;

(i) The grantor's father, mother, issue, brother, or sister;

(ii) An employee of the grantor;

(iii) A corporation or any employee of a corporation in which the stock holdings of the grantor and the trust are significant from the viewpoint of voting control; or

(iv) A subordinate employee of a corporation in which the grantor is an executive;

(3) "Second trust" means an irrevocable trust that receives trust income or principal appointed by the trustee of the original trust, and may be established by any person, including without limitation a new trust created by the trustee of the original trust who is acting in that capacity;

(4) "Special needs trust" means a trust under 42 U.S.C. § 1396p(d)(4)(A) , as it existed on January 1, 2023, that meets the requirements for that trust under any law or regulation of the State of Arkansas relating to the treatment of trusts for purposes of eligibility for Medicaid or other needs-based public assistance;

(5) "Third-party trust" means a trust that is: (A) Established by a third party with the assets of the third party to provide for the supplemental needs of a person who is eligible for needs-based public assistance at or after the time of the creation of the trust; and (B) Exempt from the provisions of any law or regulation of the State of Arkansas relating to the treatment of trusts for purposes of eligibility for Medicaid; and

(A) Established by a third party with the assets of the third party to provide for the supplemental needs of a person who is eligible for needs-based public assistance at or after the time of the creation of the trust; and

(B) Exempt from the provisions of any law or regulation of the State of Arkansas relating to the treatment of trusts for purposes of eligibility for Medicaid; and

(6) "Unitrust" means a trust for which net income is a unitrust amount and includes an express unitrust.

(b) Except as otherwise provided in this section, unless the terms of a testamentary instrument or irrevocable trust provide otherwise, a trustee with discretion or authority to distribute trust income or principal to or for a beneficiary of the trust, whether acting in the trustee's own discretion or at the direction or with the consent of another party under the terms of the trust instrument, may exercise that discretion or authority by appointing the property subject to that discretion or authority in favor of a second trust as provided in this section.

(c) (1) The second trust to which a trustee appoints property of the original trust may only have as beneficiaries one (1) or more of the beneficiaries of the original trust who are: (A) To or for whom a distribution of income or principal may be made from the original trust; (B) To or for whom a distribution of income or principal may be made in the future from the original trust at a time or upon the happening of an event specified under the original trust; or (C) Both subdivisions (c)(1)(A) and (B) of this section. (2) If the trustee of the original trust establishes the second trust, then for purposes of creating the new second trust, the requirement of the Arkansas Custodial Trust Act, § 28-72-401 et seq., that the instrument be signed by the settlor is satisfied by the signature of the trustee of the original trust. (3) The second trust may be a trust created under the original trust instrument, as modified after an appointment of property made under this section, or a different trust instrument. (4) If the second trust is created under the original trust instrument, as modified after an appointment of property made under this section, and is therefore the modified original trust, a trustee may exercise the power to appoint the trust property from the original trust to the second trust without an actual distribution of the property subject to the appointment. (5) For purposes of this subsection, a permissible appointee of a power of appointment exercised by a beneficiary of the second trust is not considered a beneficiary of the second trust.

(1) The second trust to which a trustee appoints property of the original trust may only have as beneficiaries one (1) or more of the beneficiaries of the original trust who are: (A) To or for whom a distribution of income or principal may be made from the original trust; (B) To or for whom a distribution of income or principal may be made in the future from the original trust at a time or upon the happening of an event specified under the original trust; or (C) Both subdivisions (c)(1)(A) and (B) of this section.

(A) To or for whom a distribution of income or principal may be made from the original trust;

(B) To or for whom a distribution of income or principal may be made in the future from the original trust at a time or upon the happening of an event specified under the original trust; or

(C) Both subdivisions (c)(1)(A) and (B) of this section.

(2) If the trustee of the original trust establishes the second trust, then for purposes of creating the new second trust, the requirement of the Arkansas Custodial Trust Act, § 28-72-401 et seq., that the instrument be signed by the settlor is satisfied by the signature of the trustee of the original trust.

(3) The second trust may be a trust created under the original trust instrument, as modified after an appointment of property made under this section, or a different trust instrument.

(4) If the second trust is created under the original trust instrument, as modified after an appointment of property made under this section, and is therefore the modified original trust, a trustee may exercise the power to appoint the trust property from the original trust to the second trust without an actual distribution of the property subject to the appointment.

(5) For purposes of this subsection, a permissible appointee of a power of appointment exercised by a beneficiary of the second trust is not considered a beneficiary of the second trust.

(d) A trustee may not appoint property of the original trust to a second trust if: (1) Appointing the property will reduce any income interest of any income beneficiary of the original trust if the original trust is: (A) A trust for which a marital deduction has been taken for federal or state income, gift, or estate tax purposes; (B) A trust for which a charitable deduction has been taken for federal or state income, gift, or estate tax purposes; or (C) A grantor-retained annuity trust interest or unitrust interest under 26 C.F.R. § 25.2702-3(b) and (c) ; (2) The property to be appointed is subject to a power of withdrawal that is held by a beneficiary of the original trust and may be executed at the time of the proposed appointment, unless after the exercise of that appointment, the beneficiary of the original trust's power of withdrawal is unchanged with respect to the trust property; and (3) A contribution made to the original trust is qualified for a gift tax exclusion under 26 U.S.C. § 2503(b) , as it existed on January 1, 2023, by reason of the application of 26 U.S.C. § 2503(c) , as it existed on January 1, 2023, unless the second trust provides that the beneficiary's remainder interest shall vest not later than the date upon which that interest would have vested under the terms of the original trust.

(1) Appointing the property will reduce any income interest of any income beneficiary of the original trust if the original trust is: (A) A trust for which a marital deduction has been taken for federal or state income, gift, or estate tax purposes; (B) A trust for which a charitable deduction has been taken for federal or state income, gift, or estate tax purposes; or (C) A grantor-retained annuity trust interest or unitrust interest under 26 C.F.R. § 25.2702-3(b) and (c) ;

(A) A trust for which a marital deduction has been taken for federal or state income, gift, or estate tax purposes;

(B) A trust for which a charitable deduction has been taken for federal or state income, gift, or estate tax purposes; or

(C) A grantor-retained annuity trust interest or unitrust interest under 26 C.F.R. § 25.2702-3(b) and (c) ;

(2) The property to be appointed is subject to a power of withdrawal that is held by a beneficiary of the original trust and may be executed at the time of the proposed appointment, unless after the exercise of that appointment, the beneficiary of the original trust's power of withdrawal is unchanged with respect to the trust property; and

(3) A contribution made to the original trust is qualified for a gift tax exclusion under 26 U.S.C. § 2503(b) , as it existed on January 1, 2023, by reason of the application of 26 U.S.C. § 2503(c) , as it existed on January 1, 2023, unless the second trust provides that the beneficiary's remainder interest shall vest not later than the date upon which that interest would have vested under the terms of the original trust.

(e) A trustee who is a beneficiary of the original trust may not exercise the authority to appoint property of the original trust to a second trust if: (1) Under the terms of the original trust or under law governing the administration of the original trust: (A) The trustee does not have discretion to make distributions to himself or herself; (B) The trustee's discretion to make distributions to himself or herself is limited by an ascertainable standard, and under the terms of the second trust, the trustee's discretion to make distributions to himself or herself is not limited by the same ascertainable standard; or (C) The trustee's discretion to make distributions to himself or herself can only be exercised with the consent of a cotrustee or a person holding an adverse interest and, under the terms of the second trust, the trustee's discretion to make distributions to himself or herself is not limited by an ascertainable standard and may be exercised without consent; or (2) Under the terms of the original trust or under law governing the administration of the original trust, the trustee of the original trust does not have discretion to make distributions that will discharge the trustee's legal support obligations but, under the second trust, the trustee's discretion is not limited.

(1) Under the terms of the original trust or under law governing the administration of the original trust: (A) The trustee does not have discretion to make distributions to himself or herself; (B) The trustee's discretion to make distributions to himself or herself is limited by an ascertainable standard, and under the terms of the second trust, the trustee's discretion to make distributions to himself or herself is not limited by the same ascertainable standard; or (C) The trustee's discretion to make distributions to himself or herself can only be exercised with the consent of a cotrustee or a person holding an adverse interest and, under the terms of the second trust, the trustee's discretion to make distributions to himself or herself is not limited by an ascertainable standard and may be exercised without consent; or

(A) The trustee does not have discretion to make distributions to himself or herself;

(B) The trustee's discretion to make distributions to himself or herself is limited by an ascertainable standard, and under the terms of the second trust, the trustee's discretion to make distributions to himself or herself is not limited by the same ascertainable standard; or

(C) The trustee's discretion to make distributions to himself or herself can only be exercised with the consent of a cotrustee or a person holding an adverse interest and, under the terms of the second trust, the trustee's discretion to make distributions to himself or herself is not limited by an ascertainable standard and may be exercised without consent; or

(2) Under the terms of the original trust or under law governing the administration of the original trust, the trustee of the original trust does not have discretion to make distributions that will discharge the trustee's legal support obligations but, under the second trust, the trustee's discretion is not limited.

(f) Notwithstanding the provisions of subsection (b) of this section, a trustee who may be removed by a beneficiary of the original trust and replaced with a trustee that is a related or subordinate party to a beneficiary may not exercise the authority to appoint property of the original trust to a second trust to the extent that the exercise of the authority by such trustee would have the effect of increasing the distributions that may be made from the second trust to one (1) or more beneficiaries that held the power to remove the trustee of the original trust and replace that trustee with a related or subordinate person, unless the distributions that may be made from the second trust to such beneficiary or group of beneficiaries described in subdivision (e)(1) of this section are limited by an ascertainable standard.

(g) The provisions of subsections (e) and (f) of this section do not prohibit a trustee who is not a beneficiary of the original trust or who may not be removed by a beneficiary and replaced with a trustee that is a related or subordinate party from exercising the authority to appoint property of the original trust to a second trust under subsection (b) of this section.

(h) (1) Before appointing property under subsection (b) of this section, a trustee may give notice of a proposed action or may petition a court for approval. (2) Notice of a proposed action or a petition for a court's approval must include the trustee's opinion of how the appointment of property will affect the trustee's compensation and the administration of other trust expenses.

(1) Before appointing property under subsection (b) of this section, a trustee may give notice of a proposed action or may petition a court for approval.

(2) Notice of a proposed action or a petition for a court's approval must include the trustee's opinion of how the appointment of property will affect the trustee's compensation and the administration of other trust expenses.

(i) The trust instrument of the second trust may: (1) Grant a general or limited power of appointment to one (1) or more of the beneficiaries of the second trust who are beneficiaries of the original trust; and (2) Provide that, at a time or occurrence of an event specified in the trust instrument, the remaining trust assets in the second trust must be held for the beneficiaries of the original trust upon terms and conditions that are substantially identical to the terms and conditions of the original trust.

(1) Grant a general or limited power of appointment to one (1) or more of the beneficiaries of the second trust who are beneficiaries of the original trust; and

(2) Provide that, at a time or occurrence of an event specified in the trust instrument, the remaining trust assets in the second trust must be held for the beneficiaries of the original trust upon terms and conditions that are substantially identical to the terms and conditions of the original trust.

(j) The power to appoint the property of the original trust under subsection (b) of this section must be exercised by a document that is signed by the trustee and filed with the records of the trust.

(k) The exercise of the power to invade principal of the original trust under subsection (b) of this section is considered the exercise of a power of appointment, other than power to appoint the property to the trustee, the trustee's creditors, the trustee's estate, or the creditors of the trustee's estate and the provisions of § 18-3-101 et seq. apply to that power of appointment.

(l) The provisions of this section do not: (1) Preclude the right of any trustee who has the power to appoint property that arises under any other law or under the terms of the original trust; or (2) Impose upon a trustee a duty to exercise the power to appoint property under subsection (b) of this section.

(1) Preclude the right of any trustee who has the power to appoint property that arises under any other law or under the terms of the original trust; or

(2) Impose upon a trustee a duty to exercise the power to appoint property under subsection (b) of this section.

(m) (1) The power to appoint property to another trust under subsection (b) of this section is not a power to amend the trust. (2) A trustee is not prohibited from appointing property to another trust under subsection (b) of this section if the original trust is irrevocable or provides that it may not be amended.

(1) The power to appoint property to another trust under subsection (b) of this section is not a power to amend the trust.

(2) A trustee is not prohibited from appointing property to another trust under subsection (b) of this section if the original trust is irrevocable or provides that it may not be amended.

(n) A trustee's power to appoint property to another trust under subsection (b) of this section is not limited by the existence of a spendthrift provision in the original trust.

(o) A trustee exercising any power granted under this section may designate himself or herself or any other person permitted to act as a trustee as the trustee of the second trust.

(p) The trustee of a second trust, resulting from the exercise of the power to appoint property to another trust under subsection (b) of this section, may also exercise the powers granted under this section with respect to the second trust.

(q) (1) Except as otherwise provided under the terms of the trust, the power of a trustee to appoint property to another trust is in addition to any other powers conferred by the terms of the trust or under the laws of the State of Arkansas. (2) This section does not expand, restrict, eliminate, or otherwise alter any power that a person holds in a nonfiduciary capacity with respect to a trust.

(1) Except as otherwise provided under the terms of the trust, the power of a trustee to appoint property to another trust is in addition to any other powers conferred by the terms of the trust or under the laws of the State of Arkansas.

(2) This section does not expand, restrict, eliminate, or otherwise alter any power that a person holds in a nonfiduciary capacity with respect to a trust.

(r) A trustee's power to appoint property to another trust is an administrative act under this section and, therefore, regardless of whether a trust applies the laws of the State of Arkansas for construction or validity issues, this section applies to a trust that is governed by, situated in, or administered under the laws of the State of Arkansas, regardless of whether the trust is initially governed by, situated in, or administered under the laws of the State of Arkansas under the terms of the trust instrument or whether the governing law, situs, or administration of the trust is moved to the State of Arkansas from another state or foreign jurisdiction.

(s) The power to appoint property to a second trust under this section may be exercised to appoint property to a second trust that is a: (1) Special needs trust; (2) Pooled trust; or (3) Third-party trust.

(1) Special needs trust;

(2) Pooled trust; or

(3) Third-party trust.

Added by Act 2023, No. 293,§ 2, eff. 8/1/2023.
Ark. Code Ann. § 28-68-211 — AR Code / Title 28 / Chapter 68 / Subchapter 2 / Section 28-68-211
Estates, trusts, and other beneficial interests
Status: in_force

(a) In this section, "estate, trust, or other beneficial interest" means a trust, probate estate, guardianship, conservatorship, escrow, or custodianship or a fund from which the principal is, may become, or claims to be, entitled to a share or payment. (b) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to estates, trusts, and other beneficial interests authorizes the agent to: (1) accept, receive, receipt for, sell, assign, pledge, or exchange a share in or payment from an estate, trust, or other beneficial interest; (2) demand or obtain money or another thing of value to which the principal is, may become, or claims to be, entitled by reason of an estate, trust, or other beneficial interest, by litigation or otherwise; (3) exercise for the benefit of the principal a presently exercisable general power of appointment held by the principal; (4) initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to ascertain the meaning, validity, or effect of a deed, will, declaration of trust, or other instrument or transaction affecting the interest of the principal; (5) initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to remove, substitute, or surcharge a fiduciary; (6) conserve, invest, disburse, or use anything received for an authorized purpose; (7) transfer an interest of the principal in real property, stocks and bonds, accounts with financial institutions or securities intermediaries, insurance, annuities, and other property to the trustee of a revocable trust created by the principal as settlor; and (8) reject, renounce, disclaim, release, or consent to a reduction in or modification of a share in or payment from an estate, trust, or other beneficial interest. Acts 2011, No. 805, § 1.

(a) In this section, "estate, trust, or other beneficial interest" means a trust, probate estate, guardianship, conservatorship, escrow, or custodianship or a fund from which the principal is, may become, or claims to be, entitled to a share or payment.

(b) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to estates, trusts, and other beneficial interests authorizes the agent to: (1) accept, receive, receipt for, sell, assign, pledge, or exchange a share in or payment from an estate, trust, or other beneficial interest; (2) demand or obtain money or another thing of value to which the principal is, may become, or claims to be, entitled by reason of an estate, trust, or other beneficial interest, by litigation or otherwise; (3) exercise for the benefit of the principal a presently exercisable general power of appointment held by the principal; (4) initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to ascertain the meaning, validity, or effect of a deed, will, declaration of trust, or other instrument or transaction affecting the interest of the principal; (5) initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to remove, substitute, or surcharge a fiduciary; (6) conserve, invest, disburse, or use anything received for an authorized purpose; (7) transfer an interest of the principal in real property, stocks and bonds, accounts with financial institutions or securities intermediaries, insurance, annuities, and other property to the trustee of a revocable trust created by the principal as settlor; and (8) reject, renounce, disclaim, release, or consent to a reduction in or modification of a share in or payment from an estate, trust, or other beneficial interest.

(1) accept, receive, receipt for, sell, assign, pledge, or exchange a share in or payment from an estate, trust, or other beneficial interest;

(2) demand or obtain money or another thing of value to which the principal is, may become, or claims to be, entitled by reason of an estate, trust, or other beneficial interest, by litigation or otherwise;

(3) exercise for the benefit of the principal a presently exercisable general power of appointment held by the principal;

(4) initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to ascertain the meaning, validity, or effect of a deed, will, declaration of trust, or other instrument or transaction affecting the interest of the principal;

(5) initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to remove, substitute, or surcharge a fiduciary;

(6) conserve, invest, disburse, or use anything received for an authorized purpose;

(7) transfer an interest of the principal in real property, stocks and bonds, accounts with financial institutions or securities intermediaries, insurance, annuities, and other property to the trustee of a revocable trust created by the principal as settlor; and

(8) reject, renounce, disclaim, release, or consent to a reduction in or modification of a share in or payment from an estate, trust, or other beneficial interest.

Acts 2011, No. 805, § 1.
Ark. Code Ann. § 28-65-218 — AR Code / Title 28 / Chapter 65 / Subchapter 2 / Section 28-65-218
Emergency and temporary guardianships
Status: in_force

(a) (1) (A) If upon presentation of an emergency ex parte motion accompanied by an affidavit or verified petition giving rise to specific facts in appropriate detail the court finds that there is imminent danger to the life or health of an incapacitated person or of loss, damage, or waste to the property of an incapacitated person and that this requires the immediate appointment of a guardian of his or her person or estate, or both, the court shall issue an order appointing an emergency temporary guardian. (B) An ex parte emergency guardianship order shall include a date and time certain, not to exceed fourteen (14) days from the date on which the order is entered, for a hearing reviewing the allegations in the emergency ex parte motion. (C) If the court finds clear and convincing evidence that a temporary guardianship is necessary and appropriate to protect the ward or the property of the ward after the hearing required under subdivision (a)(1)(B) of this section or after a written agreement or agreement in court by the necessary parties, the court may enter an order granting temporary guardianship for a period of up to ninety (90) days from the date of the emergency hearing. (2) (A) If the incapacitated person is an adult, the period for the appointment of a temporary guardian shall not exceed ninety (90) days. (B) If the incapacitated person is a minor, on or before the expiration of the ninety-day period and after a hearing on the merits or an agreement by the necessary parties, the court may extend the temporary guardianship for up to an additional one hundred eighty (180) days. (3) Notice of the emergency hearing shall be given before the hearing as required by subsections (b)-(d) of this section. However, notice is not required with respect to a person whose whereabouts are unknown or cannot by the exercise of reasonable diligence be ascertained. (b) Immediate notice of the temporary guardianship order shall be served by the petitioner upon the following: (1) The ward, if the ward is at least fifteen (15) years of age; (2) The parents of the ward, if the ward is a minor; (3) The spouse, if any, of the ward; (4) Any other person who is the guardian of the person or of the estate of the ward, or any other person who has been the primary caregiver of the ward; (5) The Department of Human Services when the temporary guardian appointed serves as guardian of five (5) or more wards; (6) If there is neither a known parent nor known spouse, at least one (1) of the nearest competent relatives by blood or marriage of the ward, if known; and (7) If directed by the court: (A) Any department, bureau, agency, or political subdivision of the United States or of this state which makes or awards compensation, pension, insurance, or other allowance for the benefit of the ward or his or her estate; (B) Any department, bureau, agency, or political subdivision of the United States or of this state or any charitable organization, which may be charged with the supervision, control, or custody of the incompetent; or (C) Any other person designated by the court. (c) The notice shall include: (1) A copy of the petition; (2) A copy of the temporary order and order of appointment; (3) Notice of a hearing date; and (4) A statement of rights of the proposed ward as provided in § 28-65-207(b) and § 28-65-213 . (d) If the proposed ward is at least fifteen (15) years of age, there shall be personal service upon him or her if personal service can be had. Service on others shall be according to the Arkansas Rules of Civil Procedure or as otherwise provided by the court. (e) Notice need not be given to any person listed in § 28-65-207(a)(1) -(6). (f) Within fourteen (14) days of the entry of the temporary guardianship order, a full hearing on the merits shall be held. (g) (1) If the petitioner is unable to serve a person entitled to notice under this section despite reasonable efforts, the petitioner shall make further reasonable efforts after the full hearing on the merits to serve the person with a copy of the original pleadings and a copy of the temporary guardianship order. (2) The respondent may request a subsequent review hearing before the court that shall be scheduled as soon as reasonably possible. (h) The temporary guardian shall make such reports as the court shall direct. (i) In all other respects, the provisions of this chapter concerning guardians shall apply to temporary guardians, and an appeal may be taken from the order of appointment of a temporary guardian. (j) The letters issued to a temporary guardian shall state the date of expiration of the authority of the temporary guardian. Amended by Act 2021, No. 516,§ 4, eff. 7/28/2021. Acts 1985, No. 940, § 21; A.S.A. 1947, § 57-840; Acts 1987, No. 535, § 1; 1993, No. 1295, § 1; 2011, No. 9, § 1.

(a) (1) (A) If upon presentation of an emergency ex parte motion accompanied by an affidavit or verified petition giving rise to specific facts in appropriate detail the court finds that there is imminent danger to the life or health of an incapacitated person or of loss, damage, or waste to the property of an incapacitated person and that this requires the immediate appointment of a guardian of his or her person or estate, or both, the court shall issue an order appointing an emergency temporary guardian. (B) An ex parte emergency guardianship order shall include a date and time certain, not to exceed fourteen (14) days from the date on which the order is entered, for a hearing reviewing the allegations in the emergency ex parte motion. (C) If the court finds clear and convincing evidence that a temporary guardianship is necessary and appropriate to protect the ward or the property of the ward after the hearing required under subdivision (a)(1)(B) of this section or after a written agreement or agreement in court by the necessary parties, the court may enter an order granting temporary guardianship for a period of up to ninety (90) days from the date of the emergency hearing. (2) (A) If the incapacitated person is an adult, the period for the appointment of a temporary guardian shall not exceed ninety (90) days. (B) If the incapacitated person is a minor, on or before the expiration of the ninety-day period and after a hearing on the merits or an agreement by the necessary parties, the court may extend the temporary guardianship for up to an additional one hundred eighty (180) days. (3) Notice of the emergency hearing shall be given before the hearing as required by subsections (b)-(d) of this section. However, notice is not required with respect to a person whose whereabouts are unknown or cannot by the exercise of reasonable diligence be ascertained.

(1) (A) If upon presentation of an emergency ex parte motion accompanied by an affidavit or verified petition giving rise to specific facts in appropriate detail the court finds that there is imminent danger to the life or health of an incapacitated person or of loss, damage, or waste to the property of an incapacitated person and that this requires the immediate appointment of a guardian of his or her person or estate, or both, the court shall issue an order appointing an emergency temporary guardian. (B) An ex parte emergency guardianship order shall include a date and time certain, not to exceed fourteen (14) days from the date on which the order is entered, for a hearing reviewing the allegations in the emergency ex parte motion. (C) If the court finds clear and convincing evidence that a temporary guardianship is necessary and appropriate to protect the ward or the property of the ward after the hearing required under subdivision (a)(1)(B) of this section or after a written agreement or agreement in court by the necessary parties, the court may enter an order granting temporary guardianship for a period of up to ninety (90) days from the date of the emergency hearing.

(A) If upon presentation of an emergency ex parte motion accompanied by an affidavit or verified petition giving rise to specific facts in appropriate detail the court finds that there is imminent danger to the life or health of an incapacitated person or of loss, damage, or waste to the property of an incapacitated person and that this requires the immediate appointment of a guardian of his or her person or estate, or both, the court shall issue an order appointing an emergency temporary guardian.

(B) An ex parte emergency guardianship order shall include a date and time certain, not to exceed fourteen (14) days from the date on which the order is entered, for a hearing reviewing the allegations in the emergency ex parte motion.

(C) If the court finds clear and convincing evidence that a temporary guardianship is necessary and appropriate to protect the ward or the property of the ward after the hearing required under subdivision (a)(1)(B) of this section or after a written agreement or agreement in court by the necessary parties, the court may enter an order granting temporary guardianship for a period of up to ninety (90) days from the date of the emergency hearing.

(2) (A) If the incapacitated person is an adult, the period for the appointment of a temporary guardian shall not exceed ninety (90) days. (B) If the incapacitated person is a minor, on or before the expiration of the ninety-day period and after a hearing on the merits or an agreement by the necessary parties, the court may extend the temporary guardianship for up to an additional one hundred eighty (180) days.

(A) If the incapacitated person is an adult, the period for the appointment of a temporary guardian shall not exceed ninety (90) days.

(B) If the incapacitated person is a minor, on or before the expiration of the ninety-day period and after a hearing on the merits or an agreement by the necessary parties, the court may extend the temporary guardianship for up to an additional one hundred eighty (180) days.

(3) Notice of the emergency hearing shall be given before the hearing as required by subsections (b)-(d) of this section. However, notice is not required with respect to a person whose whereabouts are unknown or cannot by the exercise of reasonable diligence be ascertained.

(b) Immediate notice of the temporary guardianship order shall be served by the petitioner upon the following: (1) The ward, if the ward is at least fifteen (15) years of age; (2) The parents of the ward, if the ward is a minor; (3) The spouse, if any, of the ward; (4) Any other person who is the guardian of the person or of the estate of the ward, or any other person who has been the primary caregiver of the ward; (5) The Department of Human Services when the temporary guardian appointed serves as guardian of five (5) or more wards; (6) If there is neither a known parent nor known spouse, at least one (1) of the nearest competent relatives by blood or marriage of the ward, if known; and (7) If directed by the court: (A) Any department, bureau, agency, or political subdivision of the United States or of this state which makes or awards compensation, pension, insurance, or other allowance for the benefit of the ward or his or her estate; (B) Any department, bureau, agency, or political subdivision of the United States or of this state or any charitable organization, which may be charged with the supervision, control, or custody of the incompetent; or (C) Any other person designated by the court.

(1) The ward, if the ward is at least fifteen (15) years of age;

(2) The parents of the ward, if the ward is a minor;

(3) The spouse, if any, of the ward;

(4) Any other person who is the guardian of the person or of the estate of the ward, or any other person who has been the primary caregiver of the ward;

(5) The Department of Human Services when the temporary guardian appointed serves as guardian of five (5) or more wards;

(6) If there is neither a known parent nor known spouse, at least one (1) of the nearest competent relatives by blood or marriage of the ward, if known; and

(7) If directed by the court: (A) Any department, bureau, agency, or political subdivision of the United States or of this state which makes or awards compensation, pension, insurance, or other allowance for the benefit of the ward or his or her estate; (B) Any department, bureau, agency, or political subdivision of the United States or of this state or any charitable organization, which may be charged with the supervision, control, or custody of the incompetent; or (C) Any other person designated by the court.

(A) Any department, bureau, agency, or political subdivision of the United States or of this state which makes or awards compensation, pension, insurance, or other allowance for the benefit of the ward or his or her estate;

(B) Any department, bureau, agency, or political subdivision of the United States or of this state or any charitable organization, which may be charged with the supervision, control, or custody of the incompetent; or

(C) Any other person designated by the court.

(c) The notice shall include: (1) A copy of the petition; (2) A copy of the temporary order and order of appointment; (3) Notice of a hearing date; and (4) A statement of rights of the proposed ward as provided in § 28-65-207(b) and § 28-65-213 .

(1) A copy of the petition;

(2) A copy of the temporary order and order of appointment;

(3) Notice of a hearing date; and

(4) A statement of rights of the proposed ward as provided in § 28-65-207(b) and § 28-65-213 .

(d) If the proposed ward is at least fifteen (15) years of age, there shall be personal service upon him or her if personal service can be had. Service on others shall be according to the Arkansas Rules of Civil Procedure or as otherwise provided by the court.

(e) Notice need not be given to any person listed in § 28-65-207(a)(1) -(6).

(f) Within fourteen (14) days of the entry of the temporary guardianship order, a full hearing on the merits shall be held.

(g) (1) If the petitioner is unable to serve a person entitled to notice under this section despite reasonable efforts, the petitioner shall make further reasonable efforts after the full hearing on the merits to serve the person with a copy of the original pleadings and a copy of the temporary guardianship order. (2) The respondent may request a subsequent review hearing before the court that shall be scheduled as soon as reasonably possible.

(1) If the petitioner is unable to serve a person entitled to notice under this section despite reasonable efforts, the petitioner shall make further reasonable efforts after the full hearing on the merits to serve the person with a copy of the original pleadings and a copy of the temporary guardianship order.

(2) The respondent may request a subsequent review hearing before the court that shall be scheduled as soon as reasonably possible.

(h) The temporary guardian shall make such reports as the court shall direct.

(i) In all other respects, the provisions of this chapter concerning guardians shall apply to temporary guardians, and an appeal may be taken from the order of appointment of a temporary guardian.

(j) The letters issued to a temporary guardian shall state the date of expiration of the authority of the temporary guardian.

Amended by Act 2021, No. 516,§ 4, eff. 7/28/2021.

Acts 1985, No. 940, § 21; A.S.A. 1947, § 57-840; Acts 1987, No. 535, § 1; 1993, No. 1295, § 1; 2011, No. 9, § 1.
Ark. Code Ann. § 28-39-406 — AR Code / Title 28 / Chapter 39 / Subchapter 4 / Section 28-39-406
Revocation of spouse's election
Status: in_force

An election made by or on behalf of a surviving spouse to take against the will shall be binding and shall not be subject to revocation, except within the time provided by § 28-39-403 for filing an election and prior to any distribution made on the basis of the election, or thereafter for such causes as would justify a decree for the rescission of a deed. Acts 1949, No. 140, § 38; A.S.A. 1947, § 60-506.

An election made by or on behalf of a surviving spouse to take against the will shall be binding and shall not be subject to revocation, except within the time provided by § 28-39-403 for filing an election and prior to any distribution made on the basis of the election, or thereafter for such causes as would justify a decree for the rescission of a deed.

Acts 1949, No. 140, § 38; A.S.A. 1947, § 60-506.
Ark. Code Ann. § 28-65-603 — AR Code / Title 28 / Chapter 65 / Subchapter 6 / Section 28-65-603
Corporate guardians
Status: in_force

If the foreign guardian is a corporation, it need not qualify as a corporation to do business under the general corporation laws of this state to entitle it to administer the property of its ward situated in this state. Acts 1985, No. 940, § 51; A.S.A. 1947, § 57-870.

If the foreign guardian is a corporation, it need not qualify as a corporation to do business under the general corporation laws of this state to entitle it to administer the property of its ward situated in this state.

Acts 1985, No. 940, § 51; A.S.A. 1947, § 57-870.
Ark. Code Ann. § 28-77-307 — AR Code / Title 28 / Chapter 77 / Subchapter 3 / Section 28-77-307
Applicable value
Status: in_force

(a) A unitrust policy must provide the method for determining the fair market value of an asset for the purpose of determining the unitrust amount, including: (1) the frequency of valuing the asset, which need not require a valuation in every period; and (2) the date for valuing the asset in each period in which the asset is valued. (b) Except as otherwise provided in § 28-77-309(b)(2) , a unitrust policy may provide methods for determining the amount of the net fair market value of the trust to take into account in determining the applicable value, including: (1) obtaining an appraisal of an asset for which fair market value is not readily available; (2) exclusion of specific assets or groups or types of assets; (3) other exceptions or modifications of the treatment of specific assets or groups or types of assets; (4) identification and treatment of cash or property held for distribution; (5) use of: (A) an average of fair market values over a stated number of preceding periods; or (B) another mathematical blend of fair market values over a stated number of preceding periods; (6) a limit on how much the applicable value of all assets, groups of assets, or individual assets may increase over: (A) the corresponding applicable value for the preceding period; or (B) a mathematical blend of applicable values over a stated number of preceding periods; (7) a limit on how much the applicable value of all assets, groups of assets, or individual assets may decrease below: (A) the corresponding applicable value for the preceding period; or (B) a mathematical blend of applicable values over a stated number of preceding periods; (8) the treatment of accrued income and other features of an asset which affect value; and (9) determining the liabilities of the trust, including treatment of liabilities to conform with the treatment of assets under paragraphs (1) through (8). Added by Act 2021, No. 1088,§ 2, eff. 1/1/2022.

(a) A unitrust policy must provide the method for determining the fair market value of an asset for the purpose of determining the unitrust amount, including: (1) the frequency of valuing the asset, which need not require a valuation in every period; and (2) the date for valuing the asset in each period in which the asset is valued.

(1) the frequency of valuing the asset, which need not require a valuation in every period; and

(2) the date for valuing the asset in each period in which the asset is valued.

(b) Except as otherwise provided in § 28-77-309(b)(2) , a unitrust policy may provide methods for determining the amount of the net fair market value of the trust to take into account in determining the applicable value, including: (1) obtaining an appraisal of an asset for which fair market value is not readily available; (2) exclusion of specific assets or groups or types of assets; (3) other exceptions or modifications of the treatment of specific assets or groups or types of assets; (4) identification and treatment of cash or property held for distribution; (5) use of: (A) an average of fair market values over a stated number of preceding periods; or (B) another mathematical blend of fair market values over a stated number of preceding periods; (6) a limit on how much the applicable value of all assets, groups of assets, or individual assets may increase over: (A) the corresponding applicable value for the preceding period; or (B) a mathematical blend of applicable values over a stated number of preceding periods; (7) a limit on how much the applicable value of all assets, groups of assets, or individual assets may decrease below: (A) the corresponding applicable value for the preceding period; or (B) a mathematical blend of applicable values over a stated number of preceding periods; (8) the treatment of accrued income and other features of an asset which affect value; and (9) determining the liabilities of the trust, including treatment of liabilities to conform with the treatment of assets under paragraphs (1) through (8).

(1) obtaining an appraisal of an asset for which fair market value is not readily available;

(2) exclusion of specific assets or groups or types of assets;

(3) other exceptions or modifications of the treatment of specific assets or groups or types of assets;

(4) identification and treatment of cash or property held for distribution;

(5) use of: (A) an average of fair market values over a stated number of preceding periods; or (B) another mathematical blend of fair market values over a stated number of preceding periods;

(A) an average of fair market values over a stated number of preceding periods; or

(B) another mathematical blend of fair market values over a stated number of preceding periods;

(6) a limit on how much the applicable value of all assets, groups of assets, or individual assets may increase over: (A) the corresponding applicable value for the preceding period; or (B) a mathematical blend of applicable values over a stated number of preceding periods;

(A) the corresponding applicable value for the preceding period; or

(B) a mathematical blend of applicable values over a stated number of preceding periods;

(7) a limit on how much the applicable value of all assets, groups of assets, or individual assets may decrease below: (A) the corresponding applicable value for the preceding period; or (B) a mathematical blend of applicable values over a stated number of preceding periods;

(A) the corresponding applicable value for the preceding period; or

(B) a mathematical blend of applicable values over a stated number of preceding periods;

(8) the treatment of accrued income and other features of an asset which affect value; and

(9) determining the liabilities of the trust, including treatment of liabilities to conform with the treatment of assets under paragraphs (1) through (8).

Added by Act 2021, No. 1088,§ 2, eff. 1/1/2022.
Ark. Code Ann. § 28-69-802 — AR Code / Title 28 / Chapter 69 / Subchapter 8 / Section 28-69-802
Definitions
Status: in_force

In this subchapter: (1) "Charitable purpose" means the relief of poverty, the advancement of education or religion, the promotion of health, the promotion of a governmental purpose, or any other purpose the achievement of which is beneficial to the community. (2) "Endowment fund" means an institutional fund or part thereof that, under the terms of a gift instrument, is not wholly expendable by the institution on a current basis. The term does not include assets that an institution designates as an endowment fund for its own use. (3) "Gift instrument" means a record or records, including an institutional solicitation, under which property is granted to, transferred to, or held by an institution as an institutional fund. (4) "Institution" means: (A) a person, other than an individual, organized and operated exclusively for charitable purposes; (B) a government or governmental subdivision, agency, or instrumentality, to the extent that it holds funds exclusively for a charitable purpose; or (C) a trust that had both charitable and noncharitable interests, after all noncharitable interests have terminated. (5) "Institutional fund" means a fund held by an institution exclusively for charitable purposes. The term does not include: (A) program-related assets; (B) a fund held for an institution by a trustee that is not an institution; or (C) a fund in which a beneficiary that is not an institution has an interest, other than an interest that could arise upon violation or failure of the purposes of the fund. (6) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity. (7) "Program-related asset" means an asset held by an institution primarily to accomplish a charitable purpose of the institution and not primarily for investment. (8) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. Acts 2009, No. 262, § 1.

In this subchapter:

(1) "Charitable purpose" means the relief of poverty, the advancement of education or religion, the promotion of health, the promotion of a governmental purpose, or any other purpose the achievement of which is beneficial to the community.

(2) "Endowment fund" means an institutional fund or part thereof that, under the terms of a gift instrument, is not wholly expendable by the institution on a current basis. The term does not include assets that an institution designates as an endowment fund for its own use.

(3) "Gift instrument" means a record or records, including an institutional solicitation, under which property is granted to, transferred to, or held by an institution as an institutional fund.

(4) "Institution" means: (A) a person, other than an individual, organized and operated exclusively for charitable purposes; (B) a government or governmental subdivision, agency, or instrumentality, to the extent that it holds funds exclusively for a charitable purpose; or (C) a trust that had both charitable and noncharitable interests, after all noncharitable interests have terminated.

(A) a person, other than an individual, organized and operated exclusively for charitable purposes;

(B) a government or governmental subdivision, agency, or instrumentality, to the extent that it holds funds exclusively for a charitable purpose; or

(C) a trust that had both charitable and noncharitable interests, after all noncharitable interests have terminated.

(5) "Institutional fund" means a fund held by an institution exclusively for charitable purposes. The term does not include: (A) program-related assets; (B) a fund held for an institution by a trustee that is not an institution; or (C) a fund in which a beneficiary that is not an institution has an interest, other than an interest that could arise upon violation or failure of the purposes of the fund.

(A) program-related assets;

(B) a fund held for an institution by a trustee that is not an institution; or

(C) a fund in which a beneficiary that is not an institution has an interest, other than an interest that could arise upon violation or failure of the purposes of the fund.

(6) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

(7) "Program-related asset" means an asset held by an institution primarily to accomplish a charitable purpose of the institution and not primarily for investment.

(8) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

Acts 2009, No. 262, § 1.
Ark. Code Ann. § 28-26-103 — AR Code / Title 28 / Chapter 26 / Section 28-26-103
Partial intestacy
Status: in_force

If part but not all of the estate of a decedent is validly disposed of by will, the part not disposed of by will shall be distributed as provided by law with respect to the estates of intestates. Acts 1949, No. 140, § 27; A.S.A. 1947, § 60-411.

If part but not all of the estate of a decedent is validly disposed of by will, the part not disposed of by will shall be distributed as provided by law with respect to the estates of intestates.

Acts 1949, No. 140, § 27; A.S.A. 1947, § 60-411.
Ark. Code Ann. § 28-72-713 — AR Code / Title 28 / Chapter 72 / Subchapter 7 / Section 28-72-713
Trust administered under laws of another state or jurisdiction
Status: in_force

(a) A trust administered under the laws of another state or another jurisdiction is a spendthrift trust or domestic asset protection trust under this subchapter if the: (1) Trustee of the trust complies with the requirements set forth in the trust instrument and the requirements of the laws of the state or jurisdiction from which the trust is being transferred; (2) Trustee or other person having the power to transfer the domicile of the trust declares the intent to transfer the domicile of the trust in writing; (3) Document declaring the intent to transfer the domicile of the trust is delivered to the trustee, if it is executed by a person other than the trustee; and (4) Requirements of this subchapter are satisfied simultaneously with or immediately after the change of the domicile. (b) For purposes of § 28-72-712 , if the domicile of an existing trust is transferred from another state or jurisdiction to this state and the laws of the other state or jurisdiction are similar to the provisions of this subchapter, the transfer of the trust is deemed to have occurred: (1) On the date on which the settlor of the trust transferred assets into the trust, if the applicable law of the trust has at all times been substantially similar to the provisions of this subchapter; or (2) On the earliest date on which the applicable laws of the trust were substantially similar to the provisions of this subchapter. Added by Act 2023, No. 291,§ 1, eff. 8/1/2023.

(a) A trust administered under the laws of another state or another jurisdiction is a spendthrift trust or domestic asset protection trust under this subchapter if the: (1) Trustee of the trust complies with the requirements set forth in the trust instrument and the requirements of the laws of the state or jurisdiction from which the trust is being transferred; (2) Trustee or other person having the power to transfer the domicile of the trust declares the intent to transfer the domicile of the trust in writing; (3) Document declaring the intent to transfer the domicile of the trust is delivered to the trustee, if it is executed by a person other than the trustee; and (4) Requirements of this subchapter are satisfied simultaneously with or immediately after the change of the domicile.

(1) Trustee of the trust complies with the requirements set forth in the trust instrument and the requirements of the laws of the state or jurisdiction from which the trust is being transferred;

(2) Trustee or other person having the power to transfer the domicile of the trust declares the intent to transfer the domicile of the trust in writing;

(3) Document declaring the intent to transfer the domicile of the trust is delivered to the trustee, if it is executed by a person other than the trustee; and

(4) Requirements of this subchapter are satisfied simultaneously with or immediately after the change of the domicile.

(b) For purposes of § 28-72-712 , if the domicile of an existing trust is transferred from another state or jurisdiction to this state and the laws of the other state or jurisdiction are similar to the provisions of this subchapter, the transfer of the trust is deemed to have occurred: (1) On the date on which the settlor of the trust transferred assets into the trust, if the applicable law of the trust has at all times been substantially similar to the provisions of this subchapter; or (2) On the earliest date on which the applicable laws of the trust were substantially similar to the provisions of this subchapter.

(1) On the date on which the settlor of the trust transferred assets into the trust, if the applicable law of the trust has at all times been substantially similar to the provisions of this subchapter; or

(2) On the earliest date on which the applicable laws of the trust were substantially similar to the provisions of this subchapter.

Added by Act 2023, No. 291,§ 1, eff. 8/1/2023.
Ark. Code Ann. § 28-48-209 — AR Code / Title 28 / Chapter 48 / Subchapter 2 / Section 28-48-209
Agreement to deposit assets
Status: in_force

It shall be lawful for the personal representative to agree with his or her surety for the deposit of any or all moneys and other assets of the estate with a bank, safe deposit, or trust company authorized by law to do business as such, or other depository approved by the court if the deposit is otherwise proper, in such manner as to prevent the withdrawal of the moneys or other assets without the written consent of the surety or on order of the court made on such notice to the surety as the court may direct. However, the agreement shall not alter the liability of the personal representative or surety as fixed by the bond. Acts 1949, No. 140, § 82; A.S.A. 1947, § 62-2213.

It shall be lawful for the personal representative to agree with his or her surety for the deposit of any or all moneys and other assets of the estate with a bank, safe deposit, or trust company authorized by law to do business as such, or other depository approved by the court if the deposit is otherwise proper, in such manner as to prevent the withdrawal of the moneys or other assets without the written consent of the surety or on order of the court made on such notice to the surety as the court may direct. However, the agreement shall not alter the liability of the personal representative or surety as fixed by the bond.

Acts 1949, No. 140, § 82; A.S.A. 1947, § 62-2213.
Ark. Code Ann. § 28-39-306 — AR Code / Title 28 / Chapter 39 / Subchapter 3 / Section 28-39-306
Sale of property indivisible without prejudice
Status: in_force

In proceedings in the circuit court for the allotment of dower or curtesy, when it appears to the court that dower or curtesy cannot be allotted out of the real estate without great prejudice to the surviving spouse or heirs and that it will be most to the interest of the parties that the real estate may be sold, the court may decree a sale of the real estate free from the dower or curtesy and decree that a portion of the proceeds may be paid to the surviving spouse in lieu of the dower or curtesy or interest otherwise secured to the surviving spouse as to the court may seem equitable and just. Acts 1873, No. 53, § 10, p. 113; C. & M. Dig., § 3534; Pope's Dig., § 4419; Acts 1981, No. 714, § 59; A.S.A. 1947, § 62-717.

In proceedings in the circuit court for the allotment of dower or curtesy, when it appears to the court that dower or curtesy cannot be allotted out of the real estate without great prejudice to the surviving spouse or heirs and that it will be most to the interest of the parties that the real estate may be sold, the court may decree a sale of the real estate free from the dower or curtesy and decree that a portion of the proceeds may be paid to the surviving spouse in lieu of the dower or curtesy or interest otherwise secured to the surviving spouse as to the court may seem equitable and just.

Acts 1873, No. 53, § 10, p. 113; C. & M. Dig., § 3534; Pope's Dig., § 4419; Acts 1981, No. 714, § 59; A.S.A. 1947, § 62-717.
Ark. Code Ann. § 28-2-205 — AR Code / Title 28 / Chapter 2 / Subchapter 2 / Section 28-2-205
Power to disclaim - General requirements, when irrevocable
Status: in_force

(a) A person may disclaim, in whole or part, any interest in or power over property, including a power of appointment. A person may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim. (b) Except to the extent a fiduciary's right to disclaim is expressly restricted or limited by another statute of this State or by the instrument creating the fiduciary relationship, a fiduciary may disclaim, in whole or part, any interest in or power over property, including a power of appointment, whether acting in a personal or representative capacity. A fiduciary may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim, or an instrument other than the instrument that created the fiduciary relationship imposed a restriction or limitation on the right to disclaim. (c) To be effective, a disclaimer must be in a writing or other record, declare the disclaimer, describe the interest or power disclaimed, be signed by the person making the disclaimer, and be delivered or filed in the manner provided in § 28-2-212 . In this subsection: (1) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. (2) "Signed" means, with present intent to authenticate or adopt a record, to: (A) execute or adopt a tangible symbol; or (B) attach to or logically associate with the record an electronic sound, symbol, or process. (d) A partial disclaimer may be expressed as a fraction, percentage, monetary amount, term of years, limitation of a power, or any other interest or estate in the property. (e) A disclaimer becomes irrevocable when it is delivered or filed pursuant to § 28-2-212 or when it becomes effective as provided in §§ 28-2-206 - 28-2-211 , whichever occurs later. (f) A disclaimer made under this subchapter is not a transfer, assignment, or release. Acts 2003, No. 610, § 5.

(a) A person may disclaim, in whole or part, any interest in or power over property, including a power of appointment. A person may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim.

(b) Except to the extent a fiduciary's right to disclaim is expressly restricted or limited by another statute of this State or by the instrument creating the fiduciary relationship, a fiduciary may disclaim, in whole or part, any interest in or power over property, including a power of appointment, whether acting in a personal or representative capacity. A fiduciary may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim, or an instrument other than the instrument that created the fiduciary relationship imposed a restriction or limitation on the right to disclaim.

(c) To be effective, a disclaimer must be in a writing or other record, declare the disclaimer, describe the interest or power disclaimed, be signed by the person making the disclaimer, and be delivered or filed in the manner provided in § 28-2-212 . In this subsection: (1) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. (2) "Signed" means, with present intent to authenticate or adopt a record, to: (A) execute or adopt a tangible symbol; or (B) attach to or logically associate with the record an electronic sound, symbol, or process.

(1) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(2) "Signed" means, with present intent to authenticate or adopt a record, to: (A) execute or adopt a tangible symbol; or (B) attach to or logically associate with the record an electronic sound, symbol, or process.

(A) execute or adopt a tangible symbol; or

(B) attach to or logically associate with the record an electronic sound, symbol, or process.

(d) A partial disclaimer may be expressed as a fraction, percentage, monetary amount, term of years, limitation of a power, or any other interest or estate in the property.

(e) A disclaimer becomes irrevocable when it is delivered or filed pursuant to § 28-2-212 or when it becomes effective as provided in §§ 28-2-206 - 28-2-211 , whichever occurs later.

(f) A disclaimer made under this subchapter is not a transfer, assignment, or release.

Acts 2003, No. 610, § 5.
Ark. Code Ann. § 28-65-222 — AR Code / Title 28 / Chapter 65 / Subchapter 2 / Section 28-65-222
Parental appointment of temporary guardian
Status: in_force

(a) (1) Except as provided in § 28-65-218 and in subdivision (a)(2) of this section, a parent of a minor child may appoint one (1) or more persons to act as a temporary guardian of his or her minor child in the event of the death of the parent if the: (A) Parent signs a notarized writing that includes the: (i) Name and date of birth of the minor child for whom the person is being appointed as guardian; (ii) Name of each person being appointed as a guardian of the minor child; and (iii) Sworn attestation of two (2) witnesses that states and affirms that each witness witnessed the parent sign the notarized writing; (B) Notarized writing signed by the parent as required under subdivision (a)(1)(A) of this section is no more than five (5) years old; and (C) Each person appointed by the parent as a guardian of the minor child consents to the appointment in a signed and notarized writing. (2) An appointing parent may appoint two (2) people as co-guardians of the minor child if the two (2) people are married to each other. (3) Both parents of the minor child shall sign the notarized writing required under subdivision (a)(1)(A) of this section if both parents are alive. (4) A parent may revoke or amend his or her appointment of a guardian under this section at any time before his or her death. (b) (1) An appointment of a guardian for a minor child under this section is immediately effective upon the death of: (A) The appointing parent if the other parent is deceased; or (B) Both appointing parents. (2) (A) Upon the death of both appointing parents or an appointing parent if the other parent is deceased, the guardian shall have temporary guardianship of the minor child for no longer than forty-five (45) days. (B) A court may extend the time period of the initial temporary guardianship for an additional ninety (90) days or terminate the temporary guardianship for good cause. (c) A person who is appointed by an appointing parent as a temporary guardian of a minor child under this section and who is willing to become the permanent guardian of the minor child shall follow the procedures required under this chapter to obtain permanent guardianship of the minor child. (d) Unless otherwise provided by law, a court shall comply with the wishes of an appointing parent and appoint each person appointed by the appointing parent as temporary guardian of the appointing parent's minor child as a permanent guardian of the minor child unless the person appointed as guardian is determined to be unfit by the court. (e) A notarized writing required under subdivision (a)(1)(A) of this section does not supersede a court order concerning child custody that exists at the time of the death of one (1) or both parents. Added by Act 2021, No. 701,§ 1, eff. 7/28/2021.

(a) (1) Except as provided in § 28-65-218 and in subdivision (a)(2) of this section, a parent of a minor child may appoint one (1) or more persons to act as a temporary guardian of his or her minor child in the event of the death of the parent if the: (A) Parent signs a notarized writing that includes the: (i) Name and date of birth of the minor child for whom the person is being appointed as guardian; (ii) Name of each person being appointed as a guardian of the minor child; and (iii) Sworn attestation of two (2) witnesses that states and affirms that each witness witnessed the parent sign the notarized writing; (B) Notarized writing signed by the parent as required under subdivision (a)(1)(A) of this section is no more than five (5) years old; and (C) Each person appointed by the parent as a guardian of the minor child consents to the appointment in a signed and notarized writing. (2) An appointing parent may appoint two (2) people as co-guardians of the minor child if the two (2) people are married to each other. (3) Both parents of the minor child shall sign the notarized writing required under subdivision (a)(1)(A) of this section if both parents are alive. (4) A parent may revoke or amend his or her appointment of a guardian under this section at any time before his or her death.

(1) Except as provided in § 28-65-218 and in subdivision (a)(2) of this section, a parent of a minor child may appoint one (1) or more persons to act as a temporary guardian of his or her minor child in the event of the death of the parent if the: (A) Parent signs a notarized writing that includes the: (i) Name and date of birth of the minor child for whom the person is being appointed as guardian; (ii) Name of each person being appointed as a guardian of the minor child; and (iii) Sworn attestation of two (2) witnesses that states and affirms that each witness witnessed the parent sign the notarized writing; (B) Notarized writing signed by the parent as required under subdivision (a)(1)(A) of this section is no more than five (5) years old; and (C) Each person appointed by the parent as a guardian of the minor child consents to the appointment in a signed and notarized writing.

(A) Parent signs a notarized writing that includes the: (i) Name and date of birth of the minor child for whom the person is being appointed as guardian; (ii) Name of each person being appointed as a guardian of the minor child; and (iii) Sworn attestation of two (2) witnesses that states and affirms that each witness witnessed the parent sign the notarized writing;

(i) Name and date of birth of the minor child for whom the person is being appointed as guardian;

(ii) Name of each person being appointed as a guardian of the minor child; and

(iii) Sworn attestation of two (2) witnesses that states and affirms that each witness witnessed the parent sign the notarized writing;

(B) Notarized writing signed by the parent as required under subdivision (a)(1)(A) of this section is no more than five (5) years old; and

(C) Each person appointed by the parent as a guardian of the minor child consents to the appointment in a signed and notarized writing.

(2) An appointing parent may appoint two (2) people as co-guardians of the minor child if the two (2) people are married to each other.

(3) Both parents of the minor child shall sign the notarized writing required under subdivision (a)(1)(A) of this section if both parents are alive.

(4) A parent may revoke or amend his or her appointment of a guardian under this section at any time before his or her death.

(b) (1) An appointment of a guardian for a minor child under this section is immediately effective upon the death of: (A) The appointing parent if the other parent is deceased; or (B) Both appointing parents. (2) (A) Upon the death of both appointing parents or an appointing parent if the other parent is deceased, the guardian shall have temporary guardianship of the minor child for no longer than forty-five (45) days. (B) A court may extend the time period of the initial temporary guardianship for an additional ninety (90) days or terminate the temporary guardianship for good cause.

(1) An appointment of a guardian for a minor child under this section is immediately effective upon the death of: (A) The appointing parent if the other parent is deceased; or (B) Both appointing parents.

(A) The appointing parent if the other parent is deceased; or

(B) Both appointing parents.

(2) (A) Upon the death of both appointing parents or an appointing parent if the other parent is deceased, the guardian shall have temporary guardianship of the minor child for no longer than forty-five (45) days. (B) A court may extend the time period of the initial temporary guardianship for an additional ninety (90) days or terminate the temporary guardianship for good cause.

(A) Upon the death of both appointing parents or an appointing parent if the other parent is deceased, the guardian shall have temporary guardianship of the minor child for no longer than forty-five (45) days.

(B) A court may extend the time period of the initial temporary guardianship for an additional ninety (90) days or terminate the temporary guardianship for good cause.

(c) A person who is appointed by an appointing parent as a temporary guardian of a minor child under this section and who is willing to become the permanent guardian of the minor child shall follow the procedures required under this chapter to obtain permanent guardianship of the minor child.

(d) Unless otherwise provided by law, a court shall comply with the wishes of an appointing parent and appoint each person appointed by the appointing parent as temporary guardian of the appointing parent's minor child as a permanent guardian of the minor child unless the person appointed as guardian is determined to be unfit by the court.

(e) A notarized writing required under subdivision (a)(1)(A) of this section does not supersede a court order concerning child custody that exists at the time of the death of one (1) or both parents.

Added by Act 2021, No. 701,§ 1, eff. 7/28/2021.
Ark. Code Ann. § 28-65-107 — AR Code / Title 28 / Chapter 65 / Subchapter 1 / Section 28-65-107
Jurisdiction of courts
Status: in_force

(a) The jurisdiction of the circuit court over all matters of guardianship, other than guardianships ad litem in other courts, shall be exclusive, subject to the right of appeal. (b) The provisions of this chapter shall not affect the jurisdiction of any court authorized to remove disabilities of minority. (c) (1) If a juvenile is the subject matter of an open case filed under the Arkansas Juvenile Code of 1989, § 9-27-301 et seq., the guardianship petition shall be filed in that case if the juvenile resides in Arkansas. (2) If the juvenile resides out of state through the Interstate Compact on the Placement of Children, § 9-29-201 et seq., the guardianship petition may be filed in Arkansas or it may be filed in the state in which the juvenile resides, subject to approval by the receiving state. (3) The Department of Human Services may intervene as a matter of right in a guardianship action at any time before the entry of a permanent guardianship order if: (A) A guardianship action is initiated for a child or adult in the custody of the department, including a seventy-two-hour hold; and (B) The custody of the child or adult is granted to a party seeking guardianship. (d) The appropriate jurisdiction for an adult guardianship action, excluding proceedings under the Adult Maltreatment Custody Act, § 9-20-101 et seq., under this chapter that involve a party residing outside the state shall be determined under the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, § 28-74-101 et seq. (e) The appropriate jurisdiction for an adult guardianship action under the Adult Maltreatment Custody Act, § 9-20-101 et seq., that involves a maltreated adult residing outside the state shall be determined under the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, § 28-74-101 et seq. Amended by Act 2013, No. 577,§ 3, eff. 8/16/2013. Acts 1985, No. 940, § 5; A.S.A. 1947, § 57-824; Acts 2001, No. 1029, § 2; 2003, No. 1185, § 279; 2009, No. 301, § 1; 2011, No. 159, § 3.

(a) The jurisdiction of the circuit court over all matters of guardianship, other than guardianships ad litem in other courts, shall be exclusive, subject to the right of appeal.

(b) The provisions of this chapter shall not affect the jurisdiction of any court authorized to remove disabilities of minority.

(c) (1) If a juvenile is the subject matter of an open case filed under the Arkansas Juvenile Code of 1989, § 9-27-301 et seq., the guardianship petition shall be filed in that case if the juvenile resides in Arkansas. (2) If the juvenile resides out of state through the Interstate Compact on the Placement of Children, § 9-29-201 et seq., the guardianship petition may be filed in Arkansas or it may be filed in the state in which the juvenile resides, subject to approval by the receiving state. (3) The Department of Human Services may intervene as a matter of right in a guardianship action at any time before the entry of a permanent guardianship order if: (A) A guardianship action is initiated for a child or adult in the custody of the department, including a seventy-two-hour hold; and (B) The custody of the child or adult is granted to a party seeking guardianship.

(1) If a juvenile is the subject matter of an open case filed under the Arkansas Juvenile Code of 1989, § 9-27-301 et seq., the guardianship petition shall be filed in that case if the juvenile resides in Arkansas.

(2) If the juvenile resides out of state through the Interstate Compact on the Placement of Children, § 9-29-201 et seq., the guardianship petition may be filed in Arkansas or it may be filed in the state in which the juvenile resides, subject to approval by the receiving state.

(3) The Department of Human Services may intervene as a matter of right in a guardianship action at any time before the entry of a permanent guardianship order if: (A) A guardianship action is initiated for a child or adult in the custody of the department, including a seventy-two-hour hold; and (B) The custody of the child or adult is granted to a party seeking guardianship.

(A) A guardianship action is initiated for a child or adult in the custody of the department, including a seventy-two-hour hold; and

(B) The custody of the child or adult is granted to a party seeking guardianship.

(d) The appropriate jurisdiction for an adult guardianship action, excluding proceedings under the Adult Maltreatment Custody Act, § 9-20-101 et seq., under this chapter that involve a party residing outside the state shall be determined under the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, § 28-74-101 et seq.

(e) The appropriate jurisdiction for an adult guardianship action under the Adult Maltreatment Custody Act, § 9-20-101 et seq., that involves a maltreated adult residing outside the state shall be determined under the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, § 28-74-101 et seq.

Amended by Act 2013, No. 577,§ 3, eff. 8/16/2013.

Acts 1985, No. 940, § 5; A.S.A. 1947, § 57-824; Acts 2001, No. 1029, § 2; 2003, No. 1185, § 279; 2009, No. 301, § 1; 2011, No. 159, § 3.
Ark. Code Ann. § 28-41-102 — AR Code / Title 28 / Chapter 41 / Section 28-41-102
Payment, transfers, or deliveries pursuant to affidavit
Status: in_force

(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. (b) (1) 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. (2) However, if notice to creditors of the decedent's death and the collection of his or her estate is published as provided by § 28-41-101 , all claims as to real property within the estate, in any event, shall be forever barred at the end of three (3) months after the date of the first publication of the first notice. (3) 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. (c) 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. (d) If the distributee who is entitled to the transfer or delivery of real property complies with the affidavit and notice requirements under § 28-41-101 , the three-month period required under § 28-41-101 lapses, and a claim is not presented to the distributee within the three-month period or all claims against the estate that were presented to the distributee within the three-month period are satisfied, then the distributee shall: (1) Be 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 of the decedent; and (2) Deliver notice of the transfer of ownership to the county assessor of each county where the real property is located. (e) (1) If a claim against an estate is presented to the distributee of the estate within three (3) months from the date of the first publication of the notice required under § 28-41-101 , then the distributee shall file a petition for the administration of the estate in accordance with § 28-40-101 et seq. (2) (A) A distributee is not required to comply with subdivision (e)(1) of this section if the claim against the estate is satisfied without using property owned by the decedent at the time of death. (B) If a claim against the estate is satisfied in the manner described under subdivision (e)(2)(A) of this section, the claimant shall present to the distributee an acknowledgement of the satisfied claim. (3) (A) If a petition for the administration of an estate is filed as required under subdivision (e)(1) of this section, then a new notice shall be published in accordance with § 28-40-111 . (B) The publication of notice filed by a distributee in accordance with § 28-41-101 is insufficient notice with regard to a petition for the administration of an estate filed as required under this subsection. (4) (A) The distributee shall pay a new filing fee when a petition for the administration of an estate is filed as required under this subsection. (B) A distributee is not entitled to a credit or refund of the fee paid to file the affidavit of small estate required under § 28-41-101 . Amended by Act 2017, No. 1021,§ 2, eff. 8/1/2017. Amended by Act 2017, No. 1021,§ 1, eff. 8/1/2017. Acts 1949, No. 140, § 67; A.S.A. 1947, § 62-2128; Acts 1993, No. 687, § 2; 2001, No. 1229, § 1; 2011, No. 761, § 2.

(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.

(b) (1) 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. (2) However, if notice to creditors of the decedent's death and the collection of his or her estate is published as provided by § 28-41-101 , all claims as to real property within the estate, in any event, shall be forever barred at the end of three (3) months after the date of the first publication of the first notice. (3) 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.

(1) 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.

(2) However, if notice to creditors of the decedent's death and the collection of his or her estate is published as provided by § 28-41-101 , all claims as to real property within the estate, in any event, shall be forever barred at the end of three (3) months after the date of the first publication of the first notice.

(3) 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.

(c) 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.

(d) If the distributee who is entitled to the transfer or delivery of real property complies with the affidavit and notice requirements under § 28-41-101 , the three-month period required under § 28-41-101 lapses, and a claim is not presented to the distributee within the three-month period or all claims against the estate that were presented to the distributee within the three-month period are satisfied, then the distributee shall: (1) Be 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 of the decedent; and (2) Deliver notice of the transfer of ownership to the county assessor of each county where the real property is located.

(1) Be 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 of the decedent; and

(2) Deliver notice of the transfer of ownership to the county assessor of each county where the real property is located.

(e) (1) If a claim against an estate is presented to the distributee of the estate within three (3) months from the date of the first publication of the notice required under § 28-41-101 , then the distributee shall file a petition for the administration of the estate in accordance with § 28-40-101 et seq. (2) (A) A distributee is not required to comply with subdivision (e)(1) of this section if the claim against the estate is satisfied without using property owned by the decedent at the time of death. (B) If a claim against the estate is satisfied in the manner described under subdivision (e)(2)(A) of this section, the claimant shall present to the distributee an acknowledgement of the satisfied claim. (3) (A) If a petition for the administration of an estate is filed as required under subdivision (e)(1) of this section, then a new notice shall be published in accordance with § 28-40-111 . (B) The publication of notice filed by a distributee in accordance with § 28-41-101 is insufficient notice with regard to a petition for the administration of an estate filed as required under this subsection. (4) (A) The distributee shall pay a new filing fee when a petition for the administration of an estate is filed as required under this subsection. (B) A distributee is not entitled to a credit or refund of the fee paid to file the affidavit of small estate required under § 28-41-101 .

(1) If a claim against an estate is presented to the distributee of the estate within three (3) months from the date of the first publication of the notice required under § 28-41-101 , then the distributee shall file a petition for the administration of the estate in accordance with § 28-40-101 et seq.

(2) (A) A distributee is not required to comply with subdivision (e)(1) of this section if the claim against the estate is satisfied without using property owned by the decedent at the time of death. (B) If a claim against the estate is satisfied in the manner described under subdivision (e)(2)(A) of this section, the claimant shall present to the distributee an acknowledgement of the satisfied claim.

(A) A distributee is not required to comply with subdivision (e)(1) of this section if the claim against the estate is satisfied without using property owned by the decedent at the time of death.

(B) If a claim against the estate is satisfied in the manner described under subdivision (e)(2)(A) of this section, the claimant shall present to the distributee an acknowledgement of the satisfied claim.

(3) (A) If a petition for the administration of an estate is filed as required under subdivision (e)(1) of this section, then a new notice shall be published in accordance with § 28-40-111 . (B) The publication of notice filed by a distributee in accordance with § 28-41-101 is insufficient notice with regard to a petition for the administration of an estate filed as required under this subsection.

(A) If a petition for the administration of an estate is filed as required under subdivision (e)(1) of this section, then a new notice shall be published in accordance with § 28-40-111 .

(B) The publication of notice filed by a distributee in accordance with § 28-41-101 is insufficient notice with regard to a petition for the administration of an estate filed as required under this subsection.

(4) (A) The distributee shall pay a new filing fee when a petition for the administration of an estate is filed as required under this subsection. (B) A distributee is not entitled to a credit or refund of the fee paid to file the affidavit of small estate required under § 28-41-101 .

(A) The distributee shall pay a new filing fee when a petition for the administration of an estate is filed as required under this subsection.

(B) A distributee is not entitled to a credit or refund of the fee paid to file the affidavit of small estate required under § 28-41-101 .

Amended by Act 2017, No. 1021,§ 2, eff. 8/1/2017.

Amended by Act 2017, No. 1021,§ 1, eff. 8/1/2017.

Acts 1949, No. 140, § 67; A.S.A. 1947, § 62-2128; Acts 1993, No. 687, § 2; 2001, No. 1229, § 1; 2011, No. 761, § 2.
Ark. Code Ann. § 28-68-110 — AR Code / Title 28 / Chapter 68 / Subchapter 1 / Section 28-68-110
Termination of power of attorney or agent's authority
Status: in_force

(a) A power of attorney terminates when: (1) the principal dies; (2) the principal becomes incapacitated, if the power of attorney is not durable; (3) the principal revokes the power of attorney; (4) the power of attorney provides that it terminates; (5) the purpose of the power of attorney is accomplished; or (6) the principal revokes the agent's authority or the agent dies, becomes incapacitated, or resigns, and the power of attorney does not provide for another agent to act under the power of attorney. (b) An agent's authority terminates when: (1) the principal revokes the authority; (2) the agent dies, becomes incapacitated, or resigns; (3) an action is filed for the dissolution or annulment of the agent's marriage to the principal or their legal separation, unless the power of attorney otherwise provides; or (4) the power of attorney terminates. (c) Unless the power of attorney otherwise provides, an agent's authority is exercisable until the authority terminates under subsection (b), notwithstanding a lapse of time since the execution of the power of attorney. (d) Termination of an agent's authority or of a power of attorney is not effective as to the agent or another person that, without actual knowledge of the termination, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, binds the principal and the principal's successors in interest. (e) Incapacity of the principal of a power of attorney that is not durable does not revoke or terminate the power of attorney as to an agent or other person that, without actual knowledge of the incapacity, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, binds the principal and the principal's successors in interest. (f) The execution of a power of attorney does not revoke a power of attorney previously executed by the principal unless the subsequent power of attorney provides that the previous power of attorney is revoked or that all other powers of attorney are revoked. Acts 2011, No. 805, § 1.

(a) A power of attorney terminates when: (1) the principal dies; (2) the principal becomes incapacitated, if the power of attorney is not durable; (3) the principal revokes the power of attorney; (4) the power of attorney provides that it terminates; (5) the purpose of the power of attorney is accomplished; or (6) the principal revokes the agent's authority or the agent dies, becomes incapacitated, or resigns, and the power of attorney does not provide for another agent to act under the power of attorney.

(1) the principal dies;

(2) the principal becomes incapacitated, if the power of attorney is not durable;

(3) the principal revokes the power of attorney;

(4) the power of attorney provides that it terminates;

(5) the purpose of the power of attorney is accomplished; or

(6) the principal revokes the agent's authority or the agent dies, becomes incapacitated, or resigns, and the power of attorney does not provide for another agent to act under the power of attorney.

(b) An agent's authority terminates when: (1) the principal revokes the authority; (2) the agent dies, becomes incapacitated, or resigns; (3) an action is filed for the dissolution or annulment of the agent's marriage to the principal or their legal separation, unless the power of attorney otherwise provides; or (4) the power of attorney terminates.

(1) the principal revokes the authority;

(2) the agent dies, becomes incapacitated, or resigns;

(3) an action is filed for the dissolution or annulment of the agent's marriage to the principal or their legal separation, unless the power of attorney otherwise provides; or

(4) the power of attorney terminates.

(c) Unless the power of attorney otherwise provides, an agent's authority is exercisable until the authority terminates under subsection (b), notwithstanding a lapse of time since the execution of the power of attorney.

(d) Termination of an agent's authority or of a power of attorney is not effective as to the agent or another person that, without actual knowledge of the termination, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, binds the principal and the principal's successors in interest.

(e) Incapacity of the principal of a power of attorney that is not durable does not revoke or terminate the power of attorney as to an agent or other person that, without actual knowledge of the incapacity, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, binds the principal and the principal's successors in interest.

(f) The execution of a power of attorney does not revoke a power of attorney previously executed by the principal unless the subsequent power of attorney provides that the previous power of attorney is revoked or that all other powers of attorney are revoked.

Acts 2011, No. 805, § 1.
Ark. Code Ann. § 28-73-409 — AR Code / Title 28 / Chapter 73 / Subchapter 4 / Section 28-73-409
Noncharitable trust without ascertainable beneficiary
Status: in_force

Except as otherwise provided in § 28-73-408 or by another statute, the following rules apply: (1) a trust may be created for a noncharitable purpose without a definite or definitely ascertainable beneficiary or for a noncharitable but otherwise valid purpose to be selected by the trustee. The trust may not be enforced for more than twenty-one (21) years; (2) a trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is so appointed, by a person appointed by a court; and (3) property of a trust authorized by this section may be applied only to its intended use, except to the extent a court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use must be distributed to the settlor, if then living, otherwise to the settlor's successors in interest. Acts 2005, No. 1031, § 1.

Except as otherwise provided in § 28-73-408 or by another statute, the following rules apply:

(1) a trust may be created for a noncharitable purpose without a definite or definitely ascertainable beneficiary or for a noncharitable but otherwise valid purpose to be selected by the trustee. The trust may not be enforced for more than twenty-one (21) years;

(2) a trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is so appointed, by a person appointed by a court; and

(3) property of a trust authorized by this section may be applied only to its intended use, except to the extent a court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use must be distributed to the settlor, if then living, otherwise to the settlor's successors in interest.

Acts 2005, No. 1031, § 1.
Ark. Code Ann. § 28-40-110 — AR Code / Title 28 / Chapter 40 / Subchapter 1 / Section 28-40-110
Notice of hearing on petitions
Status: in_force

(a) If the petition for probate or for the appointment of a general personal representative is opposed, or if a demand for notice has been filed under the provisions of § 28-40-108 , the court shall, and in all other cases the court may, fix a time and place for a hearing on the petition. (b) Notice of the hearing shall be given by one (1) or more of the methods set out in § 28-1-112 to each heir and devisee whose name and address is given, including notice other than by publication to each person who has filed demand for notice. (c) If it appears by the petition or otherwise that the fact of the death of the person whose estate is to be administered may be in doubt, or on the written demand of an interested person, a copy of the notice of the hearing on the petition shall be sent by registered mail to the last known residence address of the alleged decedent. (d) The notice required by this section shall be in substantially the following form: Click here to view form. Acts 1949, No. 140, § 49; A.S.A. 1947, § 62-2110; Acts 2003, No. 1185, § 277.

(a) If the petition for probate or for the appointment of a general personal representative is opposed, or if a demand for notice has been filed under the provisions of § 28-40-108 , the court shall, and in all other cases the court may, fix a time and place for a hearing on the petition.

(b) Notice of the hearing shall be given by one (1) or more of the methods set out in § 28-1-112 to each heir and devisee whose name and address is given, including notice other than by publication to each person who has filed demand for notice.

(c) If it appears by the petition or otherwise that the fact of the death of the person whose estate is to be administered may be in doubt, or on the written demand of an interested person, a copy of the notice of the hearing on the petition shall be sent by registered mail to the last known residence address of the alleged decedent.

(d) The notice required by this section shall be in substantially the following form: Click here to view form.

Click here to view form.

Acts 1949, No. 140, § 49; A.S.A. 1947, § 62-2110; Acts 2003, No. 1185, § 277.

40_110_1 - Attachment
Ark. Code Ann. § 28-50-113 — AR Code / Title 28 / Chapter 50 / Section 28-50-113
Payment of claims
Status: in_force

(a) Upon expiration of six (6) months after the date of the first publication of notice to creditors and the final adjudication of all claims filed against the estate, the personal representative shall proceed to pay the claims allowed against the estate in accordance with the provisions of the Probate Code. (b) If it appears at any time that the estate is or may be insolvent, that there are insufficient funds on hand, or that there is other good and sufficient cause, the personal representative may report that fact to the court and apply for any order that he or she deems necessary in connection therewith. (c) (1) The court, by order, shall direct the application of the assets of the estate to the payment of claims of the several classes in accordance with the order of priority set forth in § 28-50-106 . (2) If there are sufficient assets to pay part, but not all, of the claims of a single class, the assets applicable thereto shall be apportioned between the claims of the class. (d) Prior to the expiration of the period of six (6) months, the personal representative shall pay such of the claims as the court shall order, and the court may require bond or security to be given by the creditor to refund such part of the payment as may be necessary to make payment in accordance with the provisions of the Probate Code, but all payments made by the personal representative without order of court shall be at his or her own peril. Acts 1949, No. 140, § 122; A.S.A. 1947, § 62-2613.

(a) Upon expiration of six (6) months after the date of the first publication of notice to creditors and the final adjudication of all claims filed against the estate, the personal representative shall proceed to pay the claims allowed against the estate in accordance with the provisions of the Probate Code.

(b) If it appears at any time that the estate is or may be insolvent, that there are insufficient funds on hand, or that there is other good and sufficient cause, the personal representative may report that fact to the court and apply for any order that he or she deems necessary in connection therewith.

(c) (1) The court, by order, shall direct the application of the assets of the estate to the payment of claims of the several classes in accordance with the order of priority set forth in § 28-50-106 . (2) If there are sufficient assets to pay part, but not all, of the claims of a single class, the assets applicable thereto shall be apportioned between the claims of the class.

(1) The court, by order, shall direct the application of the assets of the estate to the payment of claims of the several classes in accordance with the order of priority set forth in § 28-50-106 .

(2) If there are sufficient assets to pay part, but not all, of the claims of a single class, the assets applicable thereto shall be apportioned between the claims of the class.

(d) Prior to the expiration of the period of six (6) months, the personal representative shall pay such of the claims as the court shall order, and the court may require bond or security to be given by the creditor to refund such part of the payment as may be necessary to make payment in accordance with the provisions of the Probate Code, but all payments made by the personal representative without order of court shall be at his or her own peril.

Acts 1949, No. 140, § 122; A.S.A. 1947, § 62-2613.
Ark. Code Ann. § 28-68-107 — AR Code / Title 28 / Chapter 68 / Subchapter 1 / Section 28-68-107
Meaning and effect of power of attorney
Status: in_force

The meaning and effect of a power of attorney is determined by the law of the jurisdiction indicated in the power of attorney and, in the absence of an indication of jurisdiction, by the law of the jurisdiction in which the power of attorney was executed. Acts 2011, No. 805, § 1.

The meaning and effect of a power of attorney is determined by the law of the jurisdiction indicated in the power of attorney and, in the absence of an indication of jurisdiction, by the law of the jurisdiction in which the power of attorney was executed.

Acts 2011, No. 805, § 1.
Ark. Code Ann. § 28-67-107 — AR Code / Title 28 / Chapter 67 / Section 28-67-107
Management of estate - Bond
Status: in_force

(a) Every conservator appointed as provided in this chapter shall have the care, custody, and management of the estate of his or her ward until he or she is legally discharged. (b) He or she must give bond to the State of Arkansas in like manner and with like conditions as provided for guardians of incompetent persons. However, the court may dispense with bond if the conservator is a bank or a trust company whose deposits are insured by the Federal Deposit Insurance Corporation or a trust company chartered and regulated by appropriate state authority. Acts 1975, No. 372, § 5; A.S.A. 1947, § 57-705; Acts 1999, No. 635, § 2.

(a) Every conservator appointed as provided in this chapter shall have the care, custody, and management of the estate of his or her ward until he or she is legally discharged.

(b) He or she must give bond to the State of Arkansas in like manner and with like conditions as provided for guardians of incompetent persons. However, the court may dispense with bond if the conservator is a bank or a trust company whose deposits are insured by the Federal Deposit Insurance Corporation or a trust company chartered and regulated by appropriate state authority.

Acts 1975, No. 372, § 5; A.S.A. 1947, § 57-705; Acts 1999, No. 635, § 2.
Ark. Code Ann. § 28-40-120 — AR Code / Title 28 / Chapter 40 / Subchapter 1 / Section 28-40-120
Probate of will of nonresident
Status: in_force

(a) When a will of a nonresident of this state, relative to property within this state, has been admitted to probate in another appropriate jurisdiction, an authenticated copy thereof, accompanied by an authenticated copy of the order admitting the will to probate, may be filed for probate in this state. (b) When so filed, together with a petition for the admission of the will to probate in this state, the court shall: (1) Presume, in the absence of evidence to the contrary, that the will was duly executed and proved and admitted to probate in the foreign jurisdiction; and (2) Admit the will to probate if it appears from the copy and order that the will was executed and proved in the manner prescribed by: (A) The law of the place of its execution; (B) The law of the testator's domicile at the time of its execution; or (C) The laws of this state. (c) Unless the will is executed in accordance with § 28-25-103 or § 28-25-104 , the petition for its probate shall state the time and place of its execution and the testator's domicile at the time of its execution and at the time of his or her death. (d) (1) Venue for the proceeding shall be governed by the provisions of § 28-40-102 . (2) Notice of the probation of the will shall be governed by the provisions of § 28-40-111 . Acts 1949, No. 140, § 60; 1967, No. 287, § 3; A.S.A. 1947, § 62-2121.

(a) When a will of a nonresident of this state, relative to property within this state, has been admitted to probate in another appropriate jurisdiction, an authenticated copy thereof, accompanied by an authenticated copy of the order admitting the will to probate, may be filed for probate in this state.

(b) When so filed, together with a petition for the admission of the will to probate in this state, the court shall: (1) Presume, in the absence of evidence to the contrary, that the will was duly executed and proved and admitted to probate in the foreign jurisdiction; and (2) Admit the will to probate if it appears from the copy and order that the will was executed and proved in the manner prescribed by: (A) The law of the place of its execution; (B) The law of the testator's domicile at the time of its execution; or (C) The laws of this state.

(1) Presume, in the absence of evidence to the contrary, that the will was duly executed and proved and admitted to probate in the foreign jurisdiction; and

(2) Admit the will to probate if it appears from the copy and order that the will was executed and proved in the manner prescribed by: (A) The law of the place of its execution; (B) The law of the testator's domicile at the time of its execution; or (C) The laws of this state.

(A) The law of the place of its execution;

(B) The law of the testator's domicile at the time of its execution; or

(C) The laws of this state.

(c) Unless the will is executed in accordance with § 28-25-103 or § 28-25-104 , the petition for its probate shall state the time and place of its execution and the testator's domicile at the time of its execution and at the time of his or her death.

(d) (1) Venue for the proceeding shall be governed by the provisions of § 28-40-102 . (2) Notice of the probation of the will shall be governed by the provisions of § 28-40-111 .

(1) Venue for the proceeding shall be governed by the provisions of § 28-40-102 .

(2) Notice of the probation of the will shall be governed by the provisions of § 28-40-111 .

Acts 1949, No. 140, § 60; 1967, No. 287, § 3; A.S.A. 1947, § 62-2121.
Ark. Code Ann. § 28-69-207 — AR Code / Title 28 / Chapter 69 / Subchapter 2 / Section 28-69-207
Services provided by affiliates
Status: in_force

Any state bank, national bank, or trust company qualified to act as a fiduciary in this state, is hereby specifically authorized to utilize its respective affiliates to provide services for any trust or estate for which the financial institution or trust company acts as a trustee or other fiduciary, provided the financial institution believes, in the exercise of the standard of care described in § 28-71-105 , that the services are reasonably necessary and that its affiliate can render such services, including, but not limited to, securities brokerage services, computer services, and banking services, to the trust or estate as competently as similar services rendered by nonaffiliates and for compensation equal to or less than that charged by nonaffiliates. Provided the foregoing requirements are met, an affiliate may be utilized by the financial institution or trust company without the approval or consent of any person or specific authorization in the trust instrument, unless such a power is expressly withheld in the trust instrument. Acts 1989, No. 351, § 1.

Any state bank, national bank, or trust company qualified to act as a fiduciary in this state, is hereby specifically authorized to utilize its respective affiliates to provide services for any trust or estate for which the financial institution or trust company acts as a trustee or other fiduciary, provided the financial institution believes, in the exercise of the standard of care described in § 28-71-105 , that the services are reasonably necessary and that its affiliate can render such services, including, but not limited to, securities brokerage services, computer services, and banking services, to the trust or estate as competently as similar services rendered by nonaffiliates and for compensation equal to or less than that charged by nonaffiliates. Provided the foregoing requirements are met, an affiliate may be utilized by the financial institution or trust company without the approval or consent of any person or specific authorization in the trust instrument, unless such a power is expressly withheld in the trust instrument.

Acts 1989, No. 351, § 1.
Ark. Code Ann. § 28-72-402 — AR Code / Title 28 / Chapter 72 / Subchapter 4 / Section 28-72-402
Custodial trust - General
Status: in_force

(a) A person may create a custodial trust of property by a written transfer of the property to another person, evidenced by registration or by other instrument of transfer, executed in any lawful manner, naming as beneficiary, an individual who may be the transferor, in which the transferee is designated, in substance, as custodial trustee under this subchapter. (b) A person may create a custodial trust of property by a written declaration, evidenced by registration of the property or by other instrument of declaration executed in any lawful manner, describing the property and naming as beneficiary an individual other than the declarant, in which the declarant as titleholder is designated, in substance, as custodial trustee under this subchapter. A registration or other declaration of trust for the sole benefit of the declarant is not a custodial trust under this subchapter. (c) Title to custodial trust property is in the custodial trustee and the beneficial interest is in the beneficiary. (d) Except as provided in subsection (e), a transferor may not terminate a custodial trust. (e) The beneficiary, if not incapacitated, or the conservator of an incapacitated beneficiary, may terminate a custodial trust by delivering to the custodial trustee a writing signed by the beneficiary or conservator declaring the termination. If not previously terminated, the custodial trust terminates on the death of the beneficiary. (f) Any person may augment existing custodial trust property by the addition of other property pursuant to this subchapter. (g) The transferor may designate, or authorize the designation of, a successor custodial trustee in the trust instrument. (h) This subchapter does not displace or restrict other means of creating trusts. A trust whose terms do not conform to this subchapter may be enforceable according to its terms under other law. Acts 1991, No. 273, § 2.

(a) A person may create a custodial trust of property by a written transfer of the property to another person, evidenced by registration or by other instrument of transfer, executed in any lawful manner, naming as beneficiary, an individual who may be the transferor, in which the transferee is designated, in substance, as custodial trustee under this subchapter.

(b) A person may create a custodial trust of property by a written declaration, evidenced by registration of the property or by other instrument of declaration executed in any lawful manner, describing the property and naming as beneficiary an individual other than the declarant, in which the declarant as titleholder is designated, in substance, as custodial trustee under this subchapter. A registration or other declaration of trust for the sole benefit of the declarant is not a custodial trust under this subchapter.

(c) Title to custodial trust property is in the custodial trustee and the beneficial interest is in the beneficiary.

(d) Except as provided in subsection (e), a transferor may not terminate a custodial trust.

(e) The beneficiary, if not incapacitated, or the conservator of an incapacitated beneficiary, may terminate a custodial trust by delivering to the custodial trustee a writing signed by the beneficiary or conservator declaring the termination. If not previously terminated, the custodial trust terminates on the death of the beneficiary.

(f) Any person may augment existing custodial trust property by the addition of other property pursuant to this subchapter.

(g) The transferor may designate, or authorize the designation of, a successor custodial trustee in the trust instrument.

(h) This subchapter does not displace or restrict other means of creating trusts. A trust whose terms do not conform to this subchapter may be enforceable according to its terms under other law.

Acts 1991, No. 273, § 2.
Ark. Code Ann. § 28-40-117 — AR Code / Title 28 / Chapter 40 / Subchapter 1 / Section 28-40-117
Proof of will
Status: in_force

(a) An attested will shall be proved as follows: (1) By the testimony of at least two (2) attesting witnesses, if living at known addresses within the continental United States and capable of testifying; or (2) (A) If only one (1) or neither of the attesting witnesses is living at a known address within the continental United States and capable of testifying, or if, after the exercise of reasonable diligence, the proponent of the will is unable to procure the testimony of two (2) attesting witnesses, in either event the will may be established by the testimony of at least two (2) credible disinterested witnesses. (B) The witnesses shall prove the handwriting of the testator and such other facts and circumstances, including the handwriting of the attesting witnesses whose testimony is not available, as would be sufficient to prove a controverted issue in equity, together with the testimony of any attesting witness whose testimony is procurable with the exercise of due diligence. (b) A holographic will shall be proved by the testimony of at least three (3) credible disinterested witnesses proving the handwriting and signature of the testator and such other facts and circumstances as would be sufficient to prove a controverted issue in equity. (c) A will which has been lost or destroyed by accident or design of some person other than the testator shall be proved by evidence which would be competent and sufficient in a proceeding in equity for the establishment of the lost will. The will so established shall be set forth in the order establishing it. (d) The provisions of this section as to the testimony of subscribing witnesses shall not exclude the production of other evidence at the hearing on the petition for probate, and the due execution of the will may be proved by such other evidence. Acts 1949, No. 140, §§ 56, 57; A.S.A. 1947, §§ 62-2117, 62-2118.

(a) An attested will shall be proved as follows: (1) By the testimony of at least two (2) attesting witnesses, if living at known addresses within the continental United States and capable of testifying; or (2) (A) If only one (1) or neither of the attesting witnesses is living at a known address within the continental United States and capable of testifying, or if, after the exercise of reasonable diligence, the proponent of the will is unable to procure the testimony of two (2) attesting witnesses, in either event the will may be established by the testimony of at least two (2) credible disinterested witnesses. (B) The witnesses shall prove the handwriting of the testator and such other facts and circumstances, including the handwriting of the attesting witnesses whose testimony is not available, as would be sufficient to prove a controverted issue in equity, together with the testimony of any attesting witness whose testimony is procurable with the exercise of due diligence.

(1) By the testimony of at least two (2) attesting witnesses, if living at known addresses within the continental United States and capable of testifying; or

(2) (A) If only one (1) or neither of the attesting witnesses is living at a known address within the continental United States and capable of testifying, or if, after the exercise of reasonable diligence, the proponent of the will is unable to procure the testimony of two (2) attesting witnesses, in either event the will may be established by the testimony of at least two (2) credible disinterested witnesses. (B) The witnesses shall prove the handwriting of the testator and such other facts and circumstances, including the handwriting of the attesting witnesses whose testimony is not available, as would be sufficient to prove a controverted issue in equity, together with the testimony of any attesting witness whose testimony is procurable with the exercise of due diligence.

(A) If only one (1) or neither of the attesting witnesses is living at a known address within the continental United States and capable of testifying, or if, after the exercise of reasonable diligence, the proponent of the will is unable to procure the testimony of two (2) attesting witnesses, in either event the will may be established by the testimony of at least two (2) credible disinterested witnesses.

(B) The witnesses shall prove the handwriting of the testator and such other facts and circumstances, including the handwriting of the attesting witnesses whose testimony is not available, as would be sufficient to prove a controverted issue in equity, together with the testimony of any attesting witness whose testimony is procurable with the exercise of due diligence.

(b) A holographic will shall be proved by the testimony of at least three (3) credible disinterested witnesses proving the handwriting and signature of the testator and such other facts and circumstances as would be sufficient to prove a controverted issue in equity.

(c) A will which has been lost or destroyed by accident or design of some person other than the testator shall be proved by evidence which would be competent and sufficient in a proceeding in equity for the establishment of the lost will. The will so established shall be set forth in the order establishing it.

(d) The provisions of this section as to the testimony of subscribing witnesses shall not exclude the production of other evidence at the hearing on the petition for probate, and the due execution of the will may be proved by such other evidence.

Acts 1949, No. 140, §§ 56, 57; A.S.A. 1947, §§ 62-2117, 62-2118.
Ark. Code Ann. § 28-53-110 — AR Code / Title 28 / Chapter 53 / Subchapter 1 / Section 28-53-110
Improper distributions
Status: in_force

(a) Unless the distribution or payment no longer can be questioned because of adjudication, estoppel, or limitations, a distributee of property improperly distributed or paid, or a claimant who was improperly paid, is liable to return any property improperly received, which is other than money, and its income since distribution if he or she has the property and to return an amount equal to any money improperly paid with interest at six percent (6%) per annum. If he or she does not have the property, then he or she is liable to return the value as of the date of disposition of the property improperly received and its income and gain received by him or her. (b) An improper distribution or payment shall be deemed to include distribution or payment without deduction of or payment for any federal or state estate, death, or transfer taxes properly apportioned thereto. (c) Any suit or proceeding to recover property improperly distributed or the value thereof may be instituted in the circuit court in which administration is pending or was had, or in any other court of proper jurisdiction. (d) 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 the decedent's death or two (2) years after the time of distribution or payment, whichever last occurs. Acts 1975, No. 620, § 13; A.S.A. 1947, § 62-2902.1.

(a) Unless the distribution or payment no longer can be questioned because of adjudication, estoppel, or limitations, a distributee of property improperly distributed or paid, or a claimant who was improperly paid, is liable to return any property improperly received, which is other than money, and its income since distribution if he or she has the property and to return an amount equal to any money improperly paid with interest at six percent (6%) per annum. If he or she does not have the property, then he or she is liable to return the value as of the date of disposition of the property improperly received and its income and gain received by him or her.

(b) An improper distribution or payment shall be deemed to include distribution or payment without deduction of or payment for any federal or state estate, death, or transfer taxes properly apportioned thereto.

(c) Any suit or proceeding to recover property improperly distributed or the value thereof may be instituted in the circuit court in which administration is pending or was had, or in any other court of proper jurisdiction.

(d) 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 the decedent's death or two (2) years after the time of distribution or payment, whichever last occurs.

Acts 1975, No. 620, § 13; A.S.A. 1947, § 62-2902.1.
Ark. Code Ann. § 28-73-907 — AR Code / Title 28 / Chapter 73 / Subchapter 9 / Section 28-73-907
Application to existing trusts
Status: in_force

This subchapter applies to trusts existing on and created after September 1, 2005. Acts 2005, No. 1031, § 1.

This subchapter applies to trusts existing on and created after September 1, 2005.

Acts 2005, No. 1031, § 1.
Ark. Code Ann. § 28-68-120 — AR Code / Title 28 / Chapter 68 / Subchapter 1 / Section 28-68-120
Liability for refusal to accept acknowledged statutory form power of attorney
Status: in_force

(a) In this section, "statutory form power of attorney" means a power of attorney substantially in the form provided in § 28-68-301 or that meets the requirements for a military power of attorney pursuant to 10 U.S.C. Section 1044b , as it existed on January 1, 2011. (b) Except as otherwise provided in subsection (c): (1) a person shall either accept an acknowledged statutory form power of attorney or request a certification, a translation, or an opinion of counsel under § 28-68-119(d) no later than seven business days after presentation of the power of attorney for acceptance; (2) if a person requests a certification, a translation, or an opinion of counsel under § 28-68-119(d) , the person shall accept the statutory form power of attorney no later than five business days after receipt of the certification, translation, or opinion of counsel; and (3) a person may not require an additional or different form of power of attorney for authority granted in the statutory form power of attorney presented. (c) A person is not required to accept an acknowledged statutory form power of attorney if: (1) the person is not otherwise required to engage in a transaction with the principal in the same circumstances; (2) engaging in a transaction with the agent or the principal in the same circumstances would be inconsistent with federal law; (3) the person has actual knowledge of the termination of the agent's authority or of the power of attorney before exercise of the power; (4) a request for a certification, a translation, or an opinion of counsel under § 28-68-119(d) is refused; (5) the person in good faith believes that the power is not valid or that the agent does not have the authority to perform the act requested, whether or not a certification, a translation, or an opinion of counsel under § 28-68-119(d) has been requested or provided; or (6) the person makes, or has actual knowledge that another person has made, a report to the Department of Human Services stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation, or abandonment by the agent or a person acting for or with the agent. (d) A person that refuses in violation of this section to accept an acknowledged statutory form power of attorney is subject to: (1) a court order mandating acceptance of the power of attorney; and (2) liability for reasonable attorney's fees and costs incurred in any action or proceeding that confirms the validity of the power of attorney or mandates acceptance of the power of attorney. Acts 2011, No. 805, § 1.

(a) In this section, "statutory form power of attorney" means a power of attorney substantially in the form provided in § 28-68-301 or that meets the requirements for a military power of attorney pursuant to 10 U.S.C. Section 1044b , as it existed on January 1, 2011.

(b) Except as otherwise provided in subsection (c): (1) a person shall either accept an acknowledged statutory form power of attorney or request a certification, a translation, or an opinion of counsel under § 28-68-119(d) no later than seven business days after presentation of the power of attorney for acceptance; (2) if a person requests a certification, a translation, or an opinion of counsel under § 28-68-119(d) , the person shall accept the statutory form power of attorney no later than five business days after receipt of the certification, translation, or opinion of counsel; and (3) a person may not require an additional or different form of power of attorney for authority granted in the statutory form power of attorney presented.

(1) a person shall either accept an acknowledged statutory form power of attorney or request a certification, a translation, or an opinion of counsel under § 28-68-119(d) no later than seven business days after presentation of the power of attorney for acceptance;

(2) if a person requests a certification, a translation, or an opinion of counsel under § 28-68-119(d) , the person shall accept the statutory form power of attorney no later than five business days after receipt of the certification, translation, or opinion of counsel; and

(3) a person may not require an additional or different form of power of attorney for authority granted in the statutory form power of attorney presented.

(c) A person is not required to accept an acknowledged statutory form power of attorney if: (1) the person is not otherwise required to engage in a transaction with the principal in the same circumstances; (2) engaging in a transaction with the agent or the principal in the same circumstances would be inconsistent with federal law; (3) the person has actual knowledge of the termination of the agent's authority or of the power of attorney before exercise of the power; (4) a request for a certification, a translation, or an opinion of counsel under § 28-68-119(d) is refused; (5) the person in good faith believes that the power is not valid or that the agent does not have the authority to perform the act requested, whether or not a certification, a translation, or an opinion of counsel under § 28-68-119(d) has been requested or provided; or (6) the person makes, or has actual knowledge that another person has made, a report to the Department of Human Services stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation, or abandonment by the agent or a person acting for or with the agent.

(1) the person is not otherwise required to engage in a transaction with the principal in the same circumstances;

(2) engaging in a transaction with the agent or the principal in the same circumstances would be inconsistent with federal law;

(3) the person has actual knowledge of the termination of the agent's authority or of the power of attorney before exercise of the power;

(4) a request for a certification, a translation, or an opinion of counsel under § 28-68-119(d) is refused;

(5) the person in good faith believes that the power is not valid or that the agent does not have the authority to perform the act requested, whether or not a certification, a translation, or an opinion of counsel under § 28-68-119(d) has been requested or provided; or

(6) the person makes, or has actual knowledge that another person has made, a report to the Department of Human Services stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation, or abandonment by the agent or a person acting for or with the agent.

(d) A person that refuses in violation of this section to accept an acknowledged statutory form power of attorney is subject to: (1) a court order mandating acceptance of the power of attorney; and (2) liability for reasonable attorney's fees and costs incurred in any action or proceeding that confirms the validity of the power of attorney or mandates acceptance of the power of attorney.

(1) a court order mandating acceptance of the power of attorney; and

(2) liability for reasonable attorney's fees and costs incurred in any action or proceeding that confirms the validity of the power of attorney or mandates acceptance of the power of attorney.

Acts 2011, No. 805, § 1.
Ark. Code Ann. § 28-65-212 — AR Code / Title 28 / Chapter 65 / Subchapter 2 / Section 28-65-212
Evaluations
Status: in_force

(a) (1) A professional evaluation shall be performed prior to the court hearing on any petition for guardianship except when appointment is being made because of minority, disappearance, detention, or confinement by a foreign power or pursuant to § 28-65-218 . (2) The evaluation shall be performed by a professional or professionals with expertise appropriate for the respondent's alleged incapacity. (b) The evaluation shall include the following: (1) The respondent's medical and physical condition; (2) His or her adaptive behavior; (3) His or her intellectual functioning; and (4) Recommendation as to the specific areas for which assistance is needed and the least restrictive alternatives available. (c) (1) If no professional evaluations performed within the last six (6) months are available, the court will order an independent evaluation. (2) If the petition is granted, the cost of the independent evaluation will be borne by the estate of the incapacitated person. In the event the petition is denied, the costs will be borne by the petitioner. (d) (1) The Department of Human Services shall not be ordered by any court, except the juvenile division of the circuit court, to gather records, investigate the respondent's condition, or help arrange for appropriate professional evaluations, unless the court has first determined all parties to the proceeding to be indigent and assistance provided by the department is limited to actions within the State of Arkansas. (2) The department shall issue rules to implement this provision. (e) Any existing evaluations made by the department of which the court has notice must be considered by the court. Amended by Act 2019, No. 315,§ 3202, eff. 7/24/2019. Acts 1985, No. 940, § 16; A.S.A. 1947, § 57-835; Acts 1987, No. 812, § 1; 2003, No. 368, § 1.

(a) (1) A professional evaluation shall be performed prior to the court hearing on any petition for guardianship except when appointment is being made because of minority, disappearance, detention, or confinement by a foreign power or pursuant to § 28-65-218 . (2) The evaluation shall be performed by a professional or professionals with expertise appropriate for the respondent's alleged incapacity.

(1) A professional evaluation shall be performed prior to the court hearing on any petition for guardianship except when appointment is being made because of minority, disappearance, detention, or confinement by a foreign power or pursuant to § 28-65-218 .

(2) The evaluation shall be performed by a professional or professionals with expertise appropriate for the respondent's alleged incapacity.

(b) The evaluation shall include the following: (1) The respondent's medical and physical condition; (2) His or her adaptive behavior; (3) His or her intellectual functioning; and (4) Recommendation as to the specific areas for which assistance is needed and the least restrictive alternatives available.

(1) The respondent's medical and physical condition;

(2) His or her adaptive behavior;

(3) His or her intellectual functioning; and

(4) Recommendation as to the specific areas for which assistance is needed and the least restrictive alternatives available.

(c) (1) If no professional evaluations performed within the last six (6) months are available, the court will order an independent evaluation. (2) If the petition is granted, the cost of the independent evaluation will be borne by the estate of the incapacitated person. In the event the petition is denied, the costs will be borne by the petitioner.

(1) If no professional evaluations performed within the last six (6) months are available, the court will order an independent evaluation.

(2) If the petition is granted, the cost of the independent evaluation will be borne by the estate of the incapacitated person. In the event the petition is denied, the costs will be borne by the petitioner.

(d) (1) The Department of Human Services shall not be ordered by any court, except the juvenile division of the circuit court, to gather records, investigate the respondent's condition, or help arrange for appropriate professional evaluations, unless the court has first determined all parties to the proceeding to be indigent and assistance provided by the department is limited to actions within the State of Arkansas. (2) The department shall issue rules to implement this provision.

(1) The Department of Human Services shall not be ordered by any court, except the juvenile division of the circuit court, to gather records, investigate the respondent's condition, or help arrange for appropriate professional evaluations, unless the court has first determined all parties to the proceeding to be indigent and assistance provided by the department is limited to actions within the State of Arkansas.

(2) The department shall issue rules to implement this provision.

(e) Any existing evaluations made by the department of which the court has notice must be considered by the court.

Amended by Act 2019, No. 315,§ 3202, eff. 7/24/2019.

Acts 1985, No. 940, § 16; A.S.A. 1947, § 57-835; Acts 1987, No. 812, § 1; 2003, No. 368, § 1.