In re Estate of Giventer, 310 Neb. 39

Background

Pearl R. Giventer executed a revocable trust (amended 2010) and a 2012 will drafted by attorney Edward Fogarty that purported to revoke the trust and nominated J. Bruce Teichman as personal representative.
Pearl was under guardianship and the court had earlier limited Fogarty’s scope of representation to contesting the guardianship; Fogarty nonetheless procured a psychiatric evaluation and the 2012 will.
After Pearl’s death in May 2013, Fogarty (and Teichman, through Fogarty) sought payment of roughly $500,000 in fees and expenses: (a) predeath fees for services to Pearl personally, and (b) postdeath fees for prosecuting probate of the 2012 will.
Fogarty filed an application for predeath fees in the trust proceedings shortly after death and did not file a claim in the probate court against the estate until 2016.
The county court denied predeath fees as time barred under the probate nonclaim statute and denied postdeath fees on grounds including that Teichman was only a nominated representative, the probate estate lacked funds, and the will was unenforceable.
The Nebraska Supreme Court affirmed the time-bar ruling for predeath fees, reversed the denial of postdeath fees (holding the county court erred legally), and remanded for determination of good faith, necessity, and reasonable amounts under §30-2481.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether predeath attorney fees were timely presented under the probate nonclaim statute	Fogarty: his June 2013 application in the trust (and related filings) presented the claim; alternatively §30-2485(b) (4-month rule) should apply	Marlys: claim must be presented against the probate estate under §30-2485(a) (3-year rule); trust filing does not present a probate claim	Held: Affirmed — predeath fees are governed by §30-2485(a) (3-year); Fogarty failed to present a claim against the probate estate in time; trust filing did not satisfy the probate nonclaim statute
Whether postdeath fees and expenses are recoverable under §30-2481 when the nominated PR prosecuted an ultimately unenforceable will	Fogarty/Teichman: §30-2481 entitles a personal representative or nominated PR to necessary expenses and reasonable fees if proceedings were prosecuted in good faith, whether successful or not	Marlys: fees not recoverable because will was unenforceable, efforts did not benefit the estate, possible bad faith, and insufficient probate assets	Held: Reversed — county court erred as a matter of law in denying fees for (a) Teichman being only nominated, (b) lack of probate funds, and (c) unenforceability of the will; remanded for county court to decide on good faith, necessity, and reasonableness
Whether filing in trust proceedings can satisfy presentation of a claim against the decedent’s probate estate	Fogarty: trust application gave notice and sought payment from trust; thus preserved claim	Marlys: trust and probate are separate; notice in trust doesn’t present a probate claim	Held: Affirmed — a demand against a trust is not a claim against the probate estate for §30-2485/30-2486 purposes; mere notice does not substitute for formal claim presentation
Whether the court should declare all claims by Paul and Marlys meritless or precluded	Fogarty/Teichman: seek broad declaratory relief and claim preclusion/res judicata against Paul and Marlys	Marlys: did not cross-appeal on rejected grounds; appellee arguments seeking different affirmance grounds require cross-appeal	Held: Denied — appellants failed to present a coherent legal argument or show entitlement to such sweeping declaratory relief; not considered or granted

Key Cases Cited

In re Estate of Hutton, 306 Neb. 579, 946 N.W.2d 669 (2020) (probate-code matters reviewed for error on the record)
In re Estate of Karmazin, 299 Neb. 315, 908 N.W.2d 381 (2018) (appeal from allowance/disallowance of probate claim treated as action at law)
In re Estate of Masopust, 232 Neb. 936, 443 N.W.2d 274 (1989) (requirements of probate nonclaim statute are mandatory)
In re Estate of Feuerhelm, 215 Neb. 872, 341 N.W.2d 342 (1983) (a claim must be a demand on the estate to satisfy nonclaim statute; notice alone is insufficient)
In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009) (distinguishing probate estate from non-testamentary trust; probate court lacks general jurisdiction over trust claims)
J.R. Simplot Co. v. Jelinek, 275 Neb. 548, 748 N.W.2d 17 (2008) (notice does not satisfy claim-presentation requirements)
In re Estate of Odineal, 220 Neb. 168, 368 N.W.2d 800 (1985) (§30-2481 requires good faith; lack of good faith supports denial of compensation)
In re Estate of Watkins, 243 Neb. 583, 501 N.W.2d 292 (1993) (statutory entitlements, not a judicially created "benefit to the estate" test, govern compensation under probate statutes)
In re Estate of Reimer, 229 Neb. 406, 427 N.W.2d 293 (1988) (county court may award compensation to nominated PR and counsel when supported by evidence)