In re Estate of Giventer
310 Neb. 39
| Neb. | 2021Background
- Pearl Giventer (decedent) signed a 2012 will drafted by attorney Edward Fogarty that nominated J. Bruce Teichman as personal representative and purported to revoke a revocable trust amended in 2010.
- While Pearl was under guardianship, the guardianship court limited Fogarty’s scope to challenging the guardianship; Fogarty nonetheless assisted in obtaining a psychiatrist opinion and prepared the 2012 will.
- Pearl died in May 2013. Fogarty sought payment of fees incurred before death from the trust (June 2013) and later filed claims in the probate proceedings (April 2018 / July 2016 filings). Fogarty and Teichman also sought postdeath fees for efforts to probate the 2012 will.
- The county court denied predeath fee claims as time-barred under the probate nonclaim statute (§ 30-2485) and denied postdeath fee claims, reasoning Teichman was only nominated (not appointed), the probate estate lacked funds, and the services were not “necessary” because the 2012 will was unenforceable.
- On appeal the Nebraska Supreme Court affirmed denial of predeath fees (claim against trust did not present a claim against the probate estate) but reversed the denial of postdeath fees, holding the county court’s legal bases for that denial were erroneous and remanding for determination of good faith and necessity under § 30-2481.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether predeath attorney fees were timely presented to the probate estate under the nonclaim statute (§ 30-2485) | Fogarty: his June 12, 2013 application in the trust proceedings presented the claim and satisfied the limitations period | Marlys: a filing in trust proceedings is not a claim against the probate estate; probate claims must be presented under § 30-2485/30-2486 | Held: Claim against trust did not present a claim against the probate estate; Fogarty did not timely file against the probate estate within § 30-2485(a)(2) and predeath claim is barred |
| Whether a nominated personal representative (Teichman) and his attorney (Fogarty) are entitled to postdeath fees under § 30-2481 | Fogarty/Teichman: § 30-2481 entitles a nominated PR (and attorney) to necessary expenses and reasonable fees if they prosecute/defend proceedings in good faith, whether successful or not | County court / Marlys: denied fees because Teichman was only nominated (not appointed), estate lacked funds, and services were unnecessary because the 2012 will was unenforceable or should have been known to be meritless | Held: Reversed and remanded. Court held (1) § 30-2481 expressly covers persons nominated as PR; (2) insufficiency of probate assets is not a proper legal ground to deny entitlement; and (3) unenforceability of the will (or hindsight that it lacked merit) alone does not bar recovery — county court must determine good faith and necessity on remand |
| Whether Fogarty’s trust filing can be used to reach trust assets or satisfy probate nonclaim requirements | Fogarty: trust filing preserved his claims and/or showed trust liability under § 30-3850(a)(3) | Marlys: probate procedures and nonclaim statute apply only to probate estate; trust proceedings are separate and notice alone does not present a claim against the probate estate | Held: The probate nonclaim statute applies to claims against the probate estate; a demand in trust proceedings does not present a claim against the probate estate for § 30-2485 purposes; trust liability questions belong in trust proceedings |
| Whether court should declare all claims by Paul and Marlys meritless and precluded | Fogarty/Teichman: seek broad declaratory relief that Paul/Marlys’ claims/slanders are meritless and precluded | Marlys: opposed; county court declined such relief | Held: Appellants offered no discernible legal argument showing entitlement to sweeping declaratory relief; request denied (no basis to grant) |
Key Cases Cited
- In re Estate of Hutton, 306 Neb. 579, 946 N.W.2d 669 (Neb. 2020) (standard of review for probate-code appeals)
- In re Estate of Karmazin, 299 Neb. 315, 908 N.W.2d 381 (Neb. 2018) (appeal from allowance/disallowance of probate claim treated as action at law)
- In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (Neb. 2009) (distinguishing probate estate from separate trust property/jurisdictional limits)
- In re Estate of Feuerhelm, 215 Neb. 872, 341 N.W.2d 342 (Neb. 1983) (notice alone does not constitute presenting a claim under nonclaim statute)
- J.R. Simplot Co. v. Jelinek, 275 Neb. 548, 748 N.W.2d 17 (Neb. 2008) (same principle on claim presentment)
- In re Estate of Masopust, 232 Neb. 936, 443 N.W.2d 274 (Neb. 1989) (nonclaim statute is mandatory)
- In re Estate of Odineal, 220 Neb. 168, 368 N.W.2d 800 (Neb. 1985) (§ 30-2481 requires good faith; lack of good faith can defeat fee recovery)
- In re Estate of Watkins, 243 Neb. 583, 501 N.W.2d 292 (Neb. 1993) (courts may not require benefit-to-estate as independent criterion; review of good faith findings)
- In re Estate of Reimer, 229 Neb. 406, 427 N.W.2d 293 (Neb. 1988) (award of compensation to nominated PR/attorney reviewed for evidentiary support)
- Weber v. Gas 'N Shop, 278 Neb. 49, 767 N.W.2d 746 (Neb. 2009) (appellee may not seek affirmance on grounds expressly rejected below without cross-appeal)
- Darling Ingredients v. City of Bellevue, 309 Neb. 338, 960 N.W.2d 284 (Neb. 2021) (appellate court should avoid making factual findings the trial court must first make)
- Nelssen v. Ritchie, 304 Neb. 346, 934 N.W.2d 377 (Neb. 2019) (legislative intent may be shown by omission as well as inclusion)