In re Estate of Fuchs, 297 Neb. 667

Gilbert R. Fuchs died May 29, 2012, survived by four children: Jim, Joseph, Julie, and Jason. His important papers were disorganized and scattered between two homes and vehicles.
Within days of Gilbert’s death (June 12, 2012) Jim and Joseph filed an application for informal appointment as copersonal representatives of the intestate estate, alleging no will was found after reasonable diligence; they were appointed.
On July 8, 2015 Joseph received by mail a 1987 will naming Jim sole beneficiary and personal representative; Joseph gave the will to Jim.
Jim filed for formal probate of the 1987 will on July 15, 2015 (more than 3 years after death); Julie and Jason objected, asserting § 30-2408’s 3-year bar, estoppel based on reliance on Jim’s earlier representations, and that estate administration had progressed.
The district court granted summary judgment for the objectors, finding the formal probate time-barred because an informal probate proceeding had occurred within 3 years, and that Jim failed to prove equitable estoppel or equitable tolling. The Supreme Court affirmed.

Issue	Plaintiff's Argument (Jim)	Defendant's Argument (Julie & Jason)	Held
Whether § 30-2408’s 3-year limitation is inapplicable because the prior informal probate was not fully completed	Prior informal proceeding must be fully adjudicated to trigger the bar; the statutory comment indicates prior proceedings adjudicate rights	Any prior formal or informal probate that "occurred" within 3 years bars later testacy proceedings; "occur" does not require completion	Held: A prior proceeding need only have been commenced/occurred; § 30-2408 barred Jim’s 2015 formal probate petition
Whether equitable estoppel prevents application of the 3-year bar because the will was allegedly suppressed	The will was deliberately suppressed by an heir; parties should be estopped from asserting the time bar	No evidence shows intentional concealment or knowledge by objectors; searches occurred and parties had access	Held: Jim failed to prove the elements of equitable estoppel; summary judgment proper
Whether equitable tolling applies to extend the 3-year period	Circumstances (disarray, scattered documents) prevented discovery and justify tolling	Jim initiated informal probate promptly and was not prevented by any paramount authority; he had opportunities to search further	Held: Equitable tolling not warranted—Jim lacked the sort of restraint or disability that would excuse filing within 3 years

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 Uniform Probate Code limits)
In re Estate of Nemetz, 273 Neb. 918 (application of § 30-2408 when no prior proceeding was commenced)
In re Estate of Harris, 379 Mont. 474 (interpreting a statute like § 30-2408; exception when no prior succession/administration proceedings opened)
State v. Beitel, 296 Neb. 781 (statutory interpretation principles)
Bryan M. v. Anne B., 292 Neb. 725 (definition and elements of equitable estoppel)
Sulu v. Magana, 293 Neb. 148 (summary judgment; avoiding speculation as basis for facts)
Macke v. Jungels, 102 Neb. 123 (equitable tolling where plaintiff was restrained from suing)
Lincoln Joint Stock Land Bank v. Barnes, 143 Neb. 58 (tolling where plaintiff was restrained by paramount authority)
National Bank of Commerce v. Ham, 256 Neb. 679 (limits on equitable tolling where statutory or bankruptcy rules provide remedies)
Brodine v. Blue Cross Blue Shield, 272 Neb. 713 (equitable tolling not applied during parallel federal proceedings when no restraint justified tolling)