In re Estate of Fuchs, 297 Neb. 667

Background

Decedent Gilbert Fuchs died May 29, 2012, survived by four adult children (Jim, Joseph, Julie, Jason). Gilbert kept papers disorganized across two homes and in vehicles.
Jim and Joseph filed an application for informal appointment as copersonal representatives for Gilbert’s intestate estate on June 12, 2012, alleging no will was found after reasonable diligence; they were appointed.
On July 8, 2015, Joseph received by mail a 1987 will naming Jim as sole beneficiary and personal representative; Joseph gave the will to Jim. Jim filed for formal probate July 15, 2015 (more than 3 years after death).
Julie and Jason objected, moved for summary judgment, and argued Jim’s probate petition was time‑barred under Neb. Rev. Stat. § 30‑2408, that Jim was estopped by prior representations/memorandum of understanding, and that estate actions and partial distributions precluded probating the will.
The district court granted summary judgment for the objectors, holding the formal probate was barred because an earlier informal probate proceeding had occurred within three years and Jim failed to prove equitable estoppel or entitlement to equitable tolling.

Issues

Issue	Plaintiff's Argument (Jim)	Defendant's Argument (Julie & Jason)	Held
Whether § 30‑2408’s 3‑year bar is inapplicable because the earlier informal probate was not completed	Prior informal appointment had not finally adjudicated rights; exception to § 30‑2408(4) applies only if no prior proceeding fully adjudicated rights	Any prior formal or informal probate that occurred within 3 years bars a later formal testacy petition; prior proceeding need only have been commenced	Court held the plain meaning of “occur” requires only that a prior proceeding have occurred/been commenced; Jim’s 2015 petition was time‑barred
Whether equitable estoppel permits late probate because the will was allegedly suppressed	Will was deliberately concealed by an heir (or someone) until after 3‑year period; objectors misrepresented no will existed and induced reliance	No evidence showing intentional concealment by objectors or knowledge of will; allegations are speculative	Court held Jim failed to prove elements of equitable estoppel; summary judgment affirmed
Whether equitable tolling excuses filing after 3 years	Tolling should apply because disarray of decedent’s records and inability to find will made timely filing impracticable; suppression by another prevented discovery	Jim commenced an informal proceeding within a week of death and thus started the limitations clock; nothing prevented a more diligent search or later filing within the statutory period; no governmental injunction prevented suit	Court held equitable tolling unavailable: claimant must show due diligence and an extraordinary barrier; Jim did not meet that burden

Key Cases Cited

Thomas v. Board of Trustees, 296 Neb. 726 (appellate summary judgment standard)
Clarke v. First Nat. Bank of Omaha, 296 Neb. 632 (interpretation of § 30‑2408 exceptions)
In re Estate of Nemetz, 273 Neb. 918 (application of § 30‑2408 where no prior probate was commenced)
In re Estate of Harris, 379 Mont. 474 (Montana court construing a uniform‑code 3‑year probate limitation exception)
Bryan M. v. Anne B., 292 Neb. 725 (elements of equitable estoppel)