In re Estate of Fuchs, 297 Neb. 667

Background

Decedent Gilbert Fuchs died May 29, 2012; survived by four children (Jim, Joseph, Julie, Jason). Two residences and poor document organization; family searched for a will but none was found initially.
Jim and Joseph applied for informal appointment as co-personal representatives for intestacy on June 12, 2012 and were appointed; they alleged diligent search had found no unrevoked will.
On July 8, 2015 Joseph received by mail a 1987 will leaving the estate to Jim; Jim filed for formal probate July 15, 2015 (more than 3 years after Gilbert’s death).
Julie and Jason objected, arguing the probate was time barred under Neb. Rev. Stat. § 30-2408, that Jim was estopped by his earlier representations and conduct, and that estate distributions had already occurred.
The district court granted summary judgment to the objectors, holding the 3-year statute barred formal probate because a prior informal proceeding had occurred, and found Jim failed to prove equitable estoppel or equitable tolling.

Issues

Issue	Plaintiff's Argument (Jim)	Defendant's Argument (Julie & Jason)	Held
1) Whether § 30-2408’s 3-year bar applies when an earlier informal probate was not completed	§ 30-2408’s exception applies only if prior proceeding did not finally adjudicate rights; an informal proceeding must be fully completed to bar the 3-year rule	Any prior formal or informal proceeding that "occurred" within three years is enough to invoke the bar; completion not required	The court held "occur" means any prior proceeding was sufficient; Jim’s 2015 formal probate was time barred because an informal proceeding had occurred.
2) Whether equitable estoppel prevents application of the statute of limitations	The will was intentionally suppressed by an heir, so the objectors should be estopped from asserting the 3-year bar	No evidence any heir intentionally concealed the will or made false representations about its existence; Jim’s assertions are speculative	The court affirmed summary judgment: Jim failed to present evidence of concealment, false representation, knowledge, or intent—equitable estoppel not shown.
3) Whether equitable tolling applies to extend the 3‑year period	Tolling should apply because the will was effectively hidden and the estate was in disarray, preventing timely filing	Jim voluntarily commenced an informal proceeding within a week of death and was not prevented by any superior authority; he lacked the required diligence or an intervening disability	The court rejected tolling: equitable tolling requires due diligence and usually some external impediment; none existed here.

Key Cases Cited

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 related limitations)
In re Estate of Nemetz, 273 Neb. 918 (discussion of § 30-2408 when no prior proceeding was commenced)
In re Estate of Harris, 379 Mont. 474 (Montana case applying a similar UPC 3-year rule and exception)
Macke v. Jungels, 102 Neb. 123 (equitable tolling when claimant was enjoined from proceeding)
Lincoln Joint Stock Land Bank v. Barnes, 143 Neb. 58 (tolling where plaintiff was restrained by superior authority)