In re Estate of Fuchs
297 Neb. 667
| Neb. | 2017Background
- Gilbert R. Fuchs died May 29, 2012, survived by four children: Jim, Joseph, Julie, and Jason. Two residences and cars contained disorganized papers; family members searched but did not find a will.
- Jim and Joseph filed an application for informal appointment as copersonal representatives for intestacy on June 12, 2012, representing no unrevoked will was known; they were appointed.
- On July 8, 2015, Joseph received by mail Gilbert’s 1987 will (leaving the estate to Jim) and gave it to Jim; Jim filed for formal probate July 15, 2015 (more than 3 years after death).
- Julie and Jason objected, asserting the formal probate was time-barred under Neb. Rev. Stat. § 30-2408, and also raised equitable estoppel and that distributions made under the informal administration prevent later probate.
- The district court granted summary judgment for the objectors, holding the formal probate was barred because a prior informal proceeding had occurred within three years, and Jim failed to prove equitable estoppel or equitable tolling.
Issues
| Issue | Plaintiff's Argument (Jim) | Defendant's Argument (Julie & Jason) | Held |
|---|---|---|---|
| Applicability of § 30-2408 3‑year limit to late formal probate | Prior informal probate was not "completed" so exception allowing later probate applies | Any prior probate proceeding that "occurred" within 3 years bars later formal probate | Court: "Occurred" means any prior formal or informal proceeding was commenced; exception not available — time bar applies |
| Equitable estoppel to permit late probate | Will was deliberately suppressed by an heir; defendants represented no will existed and induced reliance | No evidence defendants knew of or concealed the will; assertions speculative | Court: No evidence of concealment or knowledge; estoppel not proven |
| Equitable tolling of the 3‑year period | Tolled because will was not discovered and circumstances prevented timely filing | Jim commenced the initial informal proceeding quickly and was not prevented by any authority; no due diligence failure excused | Court: Equitable tolling not available; Jim lacked a basis to toll and did not show due diligence |
| Effect of actions taken under informal administration (distributions/sales) | Such actions should not preclude probate of a later-discovered will | Prior administration and partial distributions undermine ability to probate a late will; statute bars late probate | Court: Statute bars formal probate; objections regarding distributions not sufficient to overcome statutory bar |
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 (construction of § 30-2408 and limitations under Probate Code)
- In re Estate of Nemetz, 273 Neb. 918 (interpretation of § 30-2408 regarding prior proceedings)
- In re Estate of Harris, 379 Mont. 474 (Montana court interpreting a statute nearly identical to § 30-2408)
- Bryan M. v. Anne B., 292 Neb. 725 (elements of equitable estoppel)
- Macke v. Jungels, 102 Neb. 123 (examples of equitable tolling when litigation restrained by superior authority)