In re Estate of Fuchs, 297 Neb. 667

Gilbert Fuchs died May 29, 2012, survived by four children; his papers were disorganized across two homes and vehicles.
Jim and Joseph filed for informal appointment as copersonal representatives of Gilbert’s intestate estate on June 12, 2012, alleging no known will after reasonable diligence; they were appointed.
On July 8, 2015, Joseph received a mailed envelope containing Gilbert’s 1987 will (which favored Jim) and delivered it to Jim; Jim filed for formal probate July 15, 2015.
Julie and Jason objected, arguing Jim’s formal probate was time barred under Neb. Rev. Stat. § 30-2408 because an informal proceeding had already occurred within 3 years, and they asserted estoppel and laches theories.
The district court granted the objectors’ motion for summary judgment, finding the 3-year limitation in § 30-2408 barred Jim’s late formal probate and that Jim failed to prove equitable estoppel or equitable tolling.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Applicability of § 30-2408 (3-year bar)	Jim: prior informal probate was not finally adjudicated, so exception applies — statute shouldn't bar formal probate.	Objectors: any prior probate proceeding "occurred" within 3 years, so exception (no prior proceeding) does not apply.	The statute’s plain language requires only that a prior proceeding "occurred"; the 3-year bar applied and Jim’s petition was time barred.
Equitable estoppel to overcome the statute	Jim: the will was deliberately suppressed by an heir, so objectors should be estopped from asserting the statute.	Objectors: no evidence they concealed the will or intended suppression.	Jim failed to present evidence of concealment, intent, or reliance; equitable estoppel not shown.
Equitable tolling of the 3‑year period	Jim: chaotic condition of decedent’s homes and delayed discovery justify tolling.	Objectors: Jim commenced an informal proceeding promptly and was not prevented by any authority; tolling not warranted.	Equitable tolling not appropriate; claimant lacked the required due diligence and no external restraint prevented filing.
Summary judgment standard	Jim: factual disputes (who suppressed will, discovery timing) preclude summary judgment.	Objectors: allegations are speculative and insufficient to create a genuine issue.	Conjecture/speculation cannot defeat summary judgment; court correctly granted summary judgment for objectors.

Clarke v. First Nat. Bank of Omaha, 296 Neb. 632 (establishing interpretation of § 30-2408 exceptions)
Thomas v. Board of Trustees, 296 Neb. 726 (summary judgment standards)
In re Estate of Nemetz, 273 Neb. 918 (construction of § 30-2408 where no prior proceeding had been commenced)
In re Estate of Harris, 379 Mont. 474 (Montana court applying UPC 3-year rule and exceptions)
Macke v. Jungels, 102 Neb. 123 (equitable tolling where party was restrained from bringing suit)