In re Estate of Giventer, 310 Neb. 39

Background

Pearl R. Giventer (born 1920) executed a will in 2012 drafted by attorney Edward Fogarty that nominated J. Bruce Teichman as personal representative and purported to revoke a 2010-amended revocable trust that then controlled most assets.
Pearl had been under guardianship; a 2010 settlement amended the trust and limited her ability to alter it; the county court had earlier limited Fogarty’s predeath representation to narrow guardianship issues.
Pearl died in May 2013. Fogarty (on his own behalf and as Teichman’s counsel) sought payment of (a) predeath fees for services to Pearl and (b) postdeath fees and expenses incurred pursuing probate of the 2012 will and reviving related appeals — total claims ~ $500,000.
Fogarty filed an application for predeath fees in the trust proceedings (June 2013) and later filed claims in probate (2016–2018). The county court disallowed predeath claims as time-barred under the probate nonclaim statute and denied postdeath claims on multiple grounds (unenforceable will, lack of estate assets, nominated PR not serving).
The Nebraska Supreme Court affirmed the time-bar rule for predeath fees but reversed the denial of postdeath fees insofar as the county court’s stated legal reasons were erroneous; the case was remanded for the county court to determine entitlement to postdeath fees under § 30-2481 on the existing record.

Issues

Issue	Plaintiff's Argument (Fogarty/Teichman)	Defendant's Argument (Marlys/Wells Fargo)	Held
Whether predeath fees/expenses (services to decedent before death) were timely presented to the probate estate	June 2013 application in trust proceedings, plus later filings, preserved claim; if § 30-2485(b) applies, 4-month rule controls	Claims against trust do not equal claims against probate estate; nonclaim statute § 30-2485(a)(2) imposes 3-year bar and requires filing against the probate estate	Affirmed: predeath claims against probate estate were time-barred because Fogarty did not present a timely claim against the probate estate under § 30-2485/30-2486
Whether postdeath fees/expenses (services after death to prosecute/probate will) are recoverable under § 30-2481	Nominee PR and his counsel prosecuted probate in good faith; § 30-2481 entitles a personal representative or nominated PR to necessary expenses and reasonable attorney fees whether successful or not	Court below concluded services were not "necessary" because the 2012 will was unenforceable, Teichman never served, and estate lacked assets	Reversed in part: county court erred as a matter of law in denying fees because (a) being merely nominated does not bar recovery, (b) lack of probate assets is not a legal basis to refuse to determine entitlement, and (c) unsuccessful litigation or an unenforceable will alone does not make expenses non-"necessary" under § 30-2481; remanded for factual findings on good faith and necessity
Whether lack of appointment as personal representative (nominee only) bars recovery under § 30-2481	Being only nominated should not bar recovery because § 30-2481 expressly covers a "person nominated as personal representative"	Opposes recovery because Teichman never served as PR and thus has no statutory entitlement	Held for Fogarty/Teichman on statutory text: nomination suffices to invoke § 30-2481; county court erred in denying for that reason
Whether appellants are entitled to declaratory relief that all claims by Paul and Marlys are meritless and precluded by res judicata	Seeks broad declaration that adversaries’ claims/slurs are meritless and precluded	Defendants oppose; raised multiple factual and procedural defenses	Denied on appeal: appellants failed to present a discernible legal argument or show why such sweeping affirmative relief is warranted; court declined to grant relief

Key Cases Cited

In re Estate of Hutton, 306 Neb. 579 (Neb. 2020) (standard of review for matters under the Nebraska Probate Code)
In re Estate of Karmazin, 299 Neb. 315 (Neb. 2018) (appeal from allowance/disallowance of probate claims treated as action at law)
In re Estate of Chrisp, 276 Neb. 966 (Neb. 2009) (distinction between probate estate and separate trust property; limits on probate court jurisdiction over trusts)
In re Estate of Feuerhelm, 215 Neb. 872 (Neb. 1983) (a claim requires a demand upon the estate; notice alone insufficient)
J.R. Simplot Co. v. Jelinek, 275 Neb. 548 (Neb. 2008) (mere notice to estate representatives does not satisfy the nonclaim statute)
In re Estate of Odineal, 220 Neb. 168 (Neb. 1985) (interpretation of § 30-2481: good faith and requirements for recovery of expenses)
In re Estate of Watkins, 243 Neb. 583 (Neb. 1993) (personal representative’s entitlement under § 30-2481; benefit-to-estate is not a separate requirement)
In re Estate of Reimer, 229 Neb. 406 (Neb. 1988) (nominated personal representative and attorney may be entitled to compensation; county court discretion on amounts)