In re Estate of Balvin, 295 Neb. 346

Background

Decedent George E. Balvin, Sr. died intestate in 2011; his sons Kevin and George Jr. were appointed co-personal representatives.
In 2004 George Sr. and his wife conveyed Florida real estate into the revocable Balvin Family Trust naming Kevin successor trustee; trust directed equal distribution to Kevin and George Jr. on the deaths of the grantors.
George Sr. opened a Mutual of Omaha Bank account in 2010 listing Kevin as a joint authorized signer; the deposit agreement conformed to the statutory form in § 30-2719(a) and marked “Multiple-Party Account with Right of Survivorship.”
Kevin sold the Florida residence after the deaths, deposited net sale proceeds into his lawyer’s trust account, and listed those proceeds in the probate final accounting.
Kevin received life insurance and burial-benefit proceeds as designated beneficiary and voluntarily paid half of those proceeds to George Jr.; Kevin’s final accounting offset George Jr.’s intestate share by those payments.

Issues

Issue	Plaintiff's Argument (George Jr.)	Defendant's Argument (Kevin)	Held
Whether proceeds from sale of Florida residence (trust property) were part of probate estate	Proceeds are trust property and should not be included in intestate estate	County court’s retrospective settlement was proper to distribute those funds	Reversed: sale proceeds were nonprobate trust assets and should not be included in the probate estate
Whether Mutual of Omaha account was probate asset	Account not validly executed as joint survivorship because selections were not initialed; thus funds belong to estate	Deposit contract conformed to § 30-2719(a) and established a survivorship joint account	Affirmed: contract unambiguous as a multiple-party account with right of survivorship; account was nonprobate
Whether $27,000 withdrawn from joint account to buy Volvo should be included in estate (conversion)	Kevin converted decedent’s funds; amount should be part of estate	No properly prosecuted conversion claim: co-personal representative cannot sue without concurrence; no removal sought	Affirmed: county court did not err in excluding the $27,000 absent a timely, properly lodged claim or removal of Kevin as co-rep
Whether voluntary payments of life insurance proceeds can be offset against intestate share	Insurance proceeds are nonprobate and cannot be used to set off probate distribution	Offset was proper as voluntary payments to beneficiary who then accounted in final settlement	Reversed: life insurance and similar designated-beneficiary proceeds are nonprobate; they cannot be offset against intestate shares in probate
Whether daughter-in-law (Sarah) is an heir at law	Daughter-in-law is not issue and thus not an heir under intestate succession statutes	County court named Sarah as heir	Reversed: Sarah, as daughter-in-law, is not an heir at law under Neb. statutes

Key Cases Cited

Eggleston v. Kovacich, 274 Neb. 579 (statutory-form deposit controls characterization of account)
In re Estate of Walters, 212 Neb. 645 (joint tenancy passes to surviving joint tenant, not by intestacy)
In re Estate of Chrisp, 276 Neb. 966 (trust property generally not subject to probate)
In re Conservatorship of Franke, 292 Neb. 912 (Nebraska Probate Code authorizes nontestamentary nonprobate transfers)
In re Trust of Rosenberg, 273 Neb. 59 (life insurance benefits are nonprobate transfers)
Spanish Oaks v. Hy-Vee, 265 Neb. 133 (unambiguous contracts are enforced as written)
Jensen v. Board of Regents, 268 Neb. 512 (ambiguity is question of law)
General Drivers & Helpers Union v. County of Douglas, 291 Neb. 173 (contract ambiguity is a legal determination)
In re Estate of Greb, 288 Neb. 362 (standard of appellate review in probate matters)