Wrongful Death Probate

When someone dies because of another person's negligence or wrongdoing, the surviving family is left to deal with grief, funeral arrangements, and financial uncertainty all at once — and, in Arkansas, with a legal quirk that catches many families off guard: you often cannot pursue a wrongful death claim until an estate has been opened in probate court. At Duty Law, we help Arkansas families navigate this process. We open probate that gives someone legal authority to act quickly. This page explains how wrongful death probate is handled under Arkansas law and what to expect from the process.

What is a Wrongful Death Claim in Arkansas?

A wrongful death claim is a civil lawsuit brought after a person dies because of someone else's wrongful act. Arkansas's wrongful death statute allows a claim any time a death results from conduct that would have entitled the deceased person to sue for their own injuries had they survived. In practice, this covers a wide range of fatal incidents, including:

Car, truck, and motorcycle accidents caused by a negligent or reckless driver
Medical malpractice, including surgical errors, misdiagnosis, medication mistakes, and birth injuries
Nursing home neglect or abuse
Defective products, machinery, or vehicles
Workplace accidents involving unsafe conditions or third-party contractors
Premises liability incidents, such as falls, fires, or inadequate security
Criminal acts, including assaults or DUI-related deaths

Importantly, a wrongful death claim is separate from any criminal case that may arise from the same incident. A defendant can face criminal charges, a wrongful death lawsuit, or both — and a criminal conviction is not required for a family to recover damages in civil court, since the burden of proof in a civil case is lower than in a criminal prosecution.

Why Probate Matters in a Wrongful Death Case

When a catastrophic injury has resulted in death, the first place a family will go is to find a personal injury attorney. After the attorney is hired, it may be some time before the family learns that probate needs to be opened to move forward. This is not a mistake - it is a necessary and important step that must happen before your lawsuit can move forward.

Your personal injury attorney is still working on your case but needs to open probate to move forward. Their job is to pursue the lawsuit on your behalf — whether that is a medical malpractice claim, a wrongful death claim, or another injury case.

However, before they can take any legal action in court — such as requesting medical records, filing claims, or representing your family's interests — they must have legal authority to act on behalf of your loved one's estate. This is true even if the deceased person had very few assets, no Will, and nothing that would otherwise require formal estate administration. The probate isn't about dividing up furniture or bank accounts; it's about giving one person the legal authority to stand in for the estate and the family in a civil lawsuit. The law allows multiple relatives to serve as the representative so a court order signed by a judge is required to name the rightful representative.

Probate is key as it gives officially recognizes the person who has the legal right to act on behalf of the deceased person. In your situation, it serves one critical purpose:

It gives the personal injury firm the legal standing — known as "Letters Testamentary" or "Letters of Administration" — to request medical records, file court documents, and pursue the lawsuit in your loved one's name.
Without this court authority, your case with the personal injury firm cannot legally proceed. Courts and medical providers will not release records or respond to legal requests without it.
Once probate is opened and the proper authority is granted, the personal injury attorneys can move forward with your case.

To serve as a representative, you must be over 21 years of age, of sound mind, and not a convicted, or unpardoned felon.

Type of Estate Administration:

Small Estate: In general, a Small Estate has a value of $100,000 or less. Additional requirements apply for Small Estates and it is important to speak with an attorney to see if this is the best fit for your case. However, this does not satisfy the requirements for a wrongful death probate and cannot be used in place of a wrongful death probate.

Special Administration: A Faster Path

Arkansas probate law allows for something called a special administration, which is a limited, purpose-specific form of probate. Rather than opening a full estate administration — with all the notice requirements, creditor claim periods, and inventory obligations that go along with settling someone's full financial affairs — a special administrator can be appointed for the specific purpose of pursuing a wrongful death or survival claim.

The scope of a special administrator's authority is defined by the court's order of appointment, and Arkansas law extends many of the same duties and protections that apply to a full personal representative to a special administrator handling a wrongful death matter. This is often the fastest and most cost-effective way to unlock the ability to file suit, since it avoids the broader administrative burden of a full estate proceeding when the deceased person's assets don't otherwise require it. However, the probate may switch to a full estate administration when funds come to the estate from the personal injury case. The court has the discretion to enforce certain rules which may delay your case so choosing the best fit for your wrongful death probate is done on a case-by-case analysis by your probate attorney.

Full Estate Administration: In some situations — for example, when the deceased person owned real estate, had significant debts, left a will, or had other assets that need to be formally distributed — a full probate administration may be the better or necessary path. In that scenario, the personal representative appointed to administer the estate will also have the authority to bring the wrongful death claim as part of their broader duties, which include locating and valuing assets, giving notice to creditors, paying valid debts, and eventually distributing what remains according to the Will or Arkansas's intestacy laws.

Our attorneys evaluate each family's situation to determine whether a special administration or a full probate proceeding makes more sense. We even coordinate with your personal injury attorney to ensure a smooth process for you.

How the Process Works: Step by Step

Initial Consultation: We meet with the family to go over probate and determine the right steps.
Probate Filing: We prepare and file the petition to open a special administration (or full estate administration, if warranted) in the circuit court of the county where the deceased resided.
Appointment and Letters: Once the court appoints a representative, it issues letters of appointment, which formally authorize that person to act on behalf of the estate — including retaining an attorney and pursuing legal claims.
Filing the Wrongful Death and Survival Claims: The personal representative, through the personal injury firm, files suit in circuit court against the at-fault party or parties, asserting both the wrongful death claim on behalf of the beneficiaries and any survival claim on behalf of the estate.
Additional Probate Filings: While your case progresses with your personal injury attorney, we work to meet all requirements for probate which may include publishing notice in the newspaper, notice to creditors and DHS, and more.
Court Approval of Settlement or Verdict: Once the personal injury firm has resolved your case and money is released to the Estate, we work to get the money released to heirs. Any settlement of a wrongful death claim in Arkansas must be submitted to the court for approval, and the judge must authorize distribution among the beneficiaries.
Distribution and Closing: Once the case resolves, proceeds are distributed according to the court's order, and if a full estate administration was involved, the personal representative completes any remaining estate business before the probate case is closed.

Frequently Asked Questions

Do we have to go through probate even if there's no house or bank account to deal with? Often, yes. The requirement to have a personal representative or special administrator isn't about the size of the estate — it exists because Arkansas law requires the wrongful death claim to be brought in the name of a representative. Even a modest estate typically needs at least a special administration to give someone legal standing to pursue the claim.

Who decides who serves as the personal representative? If the deceased left a Will naming an Executor, that person generally has priority. Without a Will, Arkansas law and the probate court look to the surviving spouse, adult children, or other close family members, and the court will resolve any disagreement about who should serve after notice to interested parties.

How is the settlement or verdict divided among family members? The court approves the final apportionment among beneficiaries, taking into account each person's relationship to the deceased and their actual losses. This protects everyone involved, including minor beneficiaries, and helps prevent disputes down the road.

What if the family can't agree on who should be the representative? This is one of the more common complications in wrongful death cases involving blended families or estranged relatives. The probate court will hold a hearing if necessary and appoint the person it finds best suited to serve, and an attorney can help present the case for a particular family member or propose a neutral special administrator when family conflict makes that the more practical solution.

How much will I pay? Specifically for a wrongful death probate case, we work with your personal injury attorney to ensure you pay nothing out of pocket to get started. If there is a win, we will receive our fee at that time. If you lose, we will not charge you. When you call the firm, you must say your case is a personal injury type of case to ensure you are not charged a consultation fee. For cases that are not personal injury related, we do charge a consultation fee.

How long will the wrongful death probate take? Most probate cases take several months, and some may take a year or longer depending on the complexity of the estate.

Will I have to go to court? Usually not. If your appearance is ever required, we will let you know well in advance.

What are your office hours?

Monday through Thursday; 9:00 a.m. – 5:00 p.m.
Tel: (501)599-8959

Fax: (501)443-5991
Office visits are by appointment only. Because our office is located in a secured building, walk-in
visits require at least 24 hours' notice so building security can authorize your entry.

Why Families in Arkansas Trust Duty Law

Experience: We have experience in handling these matters and have successfully resolved many cases involving complex issues with creditors and the Department of Human Services ensuring families receive the maximum legal protections provided by Arkansas law.

Under Arkansas law, money from a wrongful death case may not be used to pay estate claims. Interpreting the wrongful death statute Arkansas Code Annotated ⸹16-62-102, appellate courts have stated that: Once a settlement is obtained, subsection (e) declares that the settlement proceeds do not become assets of the decedent’s estate to be distributed pursuant to a will or the laws of intestate succession. Instead, the proceeds of a wrongful-death action are for the sole benefit of the statutory beneficiaries and may not be used to pay off debts of the estate. In this respect, we have said that the administrator is a trustee or conduit who holds the proceeds of the wrongful-death action in trust for the benefit of the widow and next of kin. Matter of Estate of Shockley, 2021 Ark. App. 326, 634 S.W.3d, 787, 796-797 (2021) (citing Douglas v. Holbert, 335 Ark. 305, 314, 983 S.W.2d 392, 396 (1998)). This is key in preserving the wrongful death proceeds for heirs.

Communication: Besides having access to the attorney's calendar to book meetings, our clients receive automatic case updates when a case changes stages. Clients love this as they are well informed as to the progress of their probate case. Our clients are often pleased to know that a live person will answer their call during business hours. We are also available via text and email. Our response time is typically one business day.

If you've lost a loved one because of someone else's negligence or wrongdoing, we encourage you to reach out as soon as you're able. Time limits apply, evidence can disappear quickly, and the sooner a personal representative is appointed, the sooner your personal injury attorney can move forward with your case.

This page is intended for general informational purposes and does not constitute legal advice. Every case is different, and the outcome of any legal matter depends on its specific facts. Contact Duty Law directly to discuss the details of your situation.