In re Estate of Abbott-Ochsner, 299 Neb. 596

Background

Decedent Marcia Abbott-Ochsner executed a 2015 pour‑over will leaving her estate principally to son Mark; Mark was informally appointed personal representative after her death in 2016.
Siblings Russell and Cynthia filed a petition in county court to set aside informal probate, alleging lack of capacity and undue influence, and requested appointment of a special administrator and a different personal representative.
Mark filed a notice transferring the will‑contest portion of the county court proceeding to district court under § 30‑2429.01(1) and argued the county court thereafter lacked jurisdiction to appoint a special administrator.
The county court held a hearing and on April 10, 2017, appointed a special administrator but did not remove Mark as personal representative; Mark appealed the appointment.
The Nebraska Supreme Court held that an order appointing a special administrator under § 30‑2425 is not, by itself, a final appealable order and dismissed Mark’s appeal for lack of appellate jurisdiction.

Issues

Issue	Mark’s Argument	Russell & Cynthia’s Argument	Held
Whether the county court had jurisdiction to appoint a special administrator after Mark transferred the will contest to district court	County court lost jurisdiction over the contested matters once transfer occurred; appointment therefore invalid	County court retained jurisdiction over ancillary probate matters and could appoint a special administrator pending district court resolution	Court declined to decide on merits because appeal was from a nonfinal order and dismissed for lack of jurisdiction
Whether the April 10, 2017 order appointing a special administrator was a final, appealable order	The appointment affected Mark’s substantial rights (loss of powers, costs to estate/heir) and thus was immediately appealable	Appointment did not finally affect Mark’s substantial rights; restrictions on Mark’s actions were already in place by commencement of formal proceedings	Appointment of a special administrator under § 30‑2425, without additional facts, is not a final order; appeal dismissed
Whether the court erred by admitting Cynthia’s affidavit at the county‑court hearing	Affidavit was hearsay, lacking foundation and unfair surprise; admission violated Mark’s rights	Affidavit was relevant to necessity for a special administrator; proper for county court to consider	Court did not reach evidentiary merits because it dismissed appeal for lack of finality/jurisdiction
Whether Mark was denied right to cross‑examine Cynthia on the petition and affidavit	Mark lacked opportunity to cross‑examine Cynthia before the county court acted, violating due process	The county court had discretion over procedure; matter related to interlocutory appointment	Court did not rule on cross‑examination claim due to dismissal for lack of appellate jurisdiction

Key Cases Cited

In re Conservatorship of Abbott, 295 Neb. 510, 890 N.W.2d 469 (Neb. 2017) (prior decision removing Mark as trustee affirmed and relevant factual history)
In re Estate of Muncillo, 280 Neb. 669, 789 N.W.2d 37 (Neb. 2010) (denial of application to appoint special administrator held final and appealable in that context)
In re Estate of Peters, 259 Neb. 154, 609 N.W.2d 23 (Neb. 2000) (reappointing personal representative after reopening estate not a final appealable order)
In re Estate of Snover, 233 Neb. 198, 443 N.W.2d 894 (Neb. 1989) (discusses final‑order and probate procedure principles)
In re Estate of Gsantner, 288 Neb. 222, 846 N.W.2d 646 (Neb. 2014) (orders determining personal representative’s fees are final)
In re Estate of Potthoff, 273 Neb. 828, 733 N.W.2d 860 (Neb. 2007) (addresses when probate matters produce final orders)