In re Estate of Fuchs, 297 Neb. 667

Gilbert R. Fuchs died May 29, 2012, survived by four adult children: Jim, Joseph, Julie, and Jason.
Jim and Joseph filed an application for informal appointment as copersonal representatives for an intestate estate on June 12, 2012 (within a week of death), alleging no will was found after diligent search; they were appointed.
On July 8, 2015, Joseph received by mail a 1987 will naming Jim as sole devisee and personal representative; Jim filed for formal probate July 15, 2015 (over 3 years after death).
Julie and Jason objected, moved for summary judgment, and alleged the probate was time barred under Neb. Rev. Stat. § 30-2408, that Jim had represented there was no will, and that estoppel/tolling did not apply.
The district court granted summary judgment for the objectors, finding the formal probate was barred by the 3-year limitation, and that Jim failed to show equitable estoppel or equitable tolling.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Applicability of § 30-2408 3-year bar when a prior informal proceeding exists	§30-2408’s exception applies only if no prior proceeding fully adjudicated rights; prior proceeding must be completed before it bars the exception	Any prior formal or informal probate that occurred (i.e., was commenced) within 3 years bars later probate under §30-2408	The plain meaning of “occur” requires only that a prior proceeding was commenced; the 2015 petition was time barred
Equitable estoppel to overcome statute of limitations (alleged suppression of will)	The will was deliberately suppressed by an heir; estoppel should prevent objectors from relying on the statute	No evidence that objectors intentionally concealed or knew of the will; allegations are speculative	Jim failed to present evidence of false representation, knowledge, or intent to suppress; estoppel not shown
Equitable tolling of the 3-year period	Tolling should apply because the will was hidden and the estate was in disarray, preventing timely discovery	Jim began the informal proceeding promptly and was not prevented by any authority from investigating further; no basis to toll	Equitable tolling requires due diligence and extraordinary circumstance; none proven here, so tolling denied

Thomas v. Board of Trustees, 296 Neb. 726 (standard for reviewing summary judgment)
Clarke v. First Nat. Bank of Omaha, 296 Neb. 632 (interpretation of §30-2408 and limitations under the Probate Code)
In re Estate of Nemetz, 273 Neb. 918 (discussing §30-2408 application where no prior probate was commenced)
In re Estate of Harris, 379 Mont. 474 (Montana decision applying a UPC-like 3-year rule and the exception for no prior proceedings)
Macke v. Jungels, 102 Neb. 123 (equitable tolling where party was enjoined from proceeding)
Brodine v. Blue Cross Blue Shield, 272 Neb. 713 (limits on tolling during parallel federal litigation)