In re Estate of Giventer, 310 Neb. 39

Background:

Pearl Giventer, under guardianship and with declining capacity, signed a 2012 will drafted by attorney Edward Fogarty that purported to revoke a 2010 amended revocable trust and named J. Bruce Teichman as nominated personal representative.
The guardianship court previously limited Fogarty’s representation of Pearl to challenging the guardianship; Fogarty nonetheless obtained a psychiatric evaluation and had Pearl execute the 2012 will.
Pearl died in May 2013; Fogarty filed for payment of predeath fees from the trust (June 2013) and later presented claims in probate for predeath and postdeath fees (filed 2016–2018). Teichman and Fogarty sought roughly $500,000 in total.
The county court denied predeath fee claims as time barred under the probate nonclaim statute and denied postdeath fee claims, concluding Teichman was merely nominated (not appointed), estate assets were insufficient, and the 2012 will was unenforceable (so fees were not “necessary”).
The Nebraska Supreme Court affirmed the county court’s denial of predeath claims (holding a demand against the trust did not satisfy the probate nonclaim statute) but reversed as to postdeath claims, holding the county court erred as a matter of law in its bases for denying compensation under § 30-2481 and remanded for factual determinations of good faith and necessity.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether predeath attorney fees presented in trust proceedings satisfied the probate nonclaim statute timing for claims against the decedent’s estate	Fogarty: his June 12, 2013 application in the trust sufficed to present the claim; or § 30-2485(b) 4‑month rule applied	Marlys: trust filing is not a claim against the probate estate; § 30-2485(a)(2) 3‑year rule controls and Fogarty filed too late	Held: Affirmed — a demand against the trust is not a timely claim against the probate estate; predeath claims to probate estate were time barred under § 30-2485(a)(2).
Whether a nominated personal representative (Teichman) and his attorney (Fogarty) are entitled to postdeath fees under § 30-2481 when they prosecuted probate in good faith though unsuccessful	Fogarty/Teichman: § 30-2481 expressly allows a nominated PR to recover necessary expenses and reasonable attorney fees if he defends/prosecutes in good faith whether successful or not	Marlys: efforts did not benefit estate; pursued personal motives; lacked merit because will was unenforceable	Held: Reversed — county court legally erred in denying solely because Teichman was only nominated, estate lacked assets, or the will proved unenforceable; remand for county court to determine good faith and necessity.
Whether insufficiency of probate assets or failure to comply with trust-procedure § 30-3850 was proper ground to deny § 30-2481 compensation	Fogarty/Teichman: entitlement to a determination of compensation exists regardless of current asset insufficiency; trust-liability procedures are separate	Marlys: probate estate had no assets; claim cannot be satisfied so denial proper	Held: Reversed — county court erred; inability of probate estate to pay or compliance with trust procedures cannot be resolved in probate as a basis to deny the § 30-2481 claim; trust remedies must be pursued in trust proceedings.
Whether appellants’ broader request for declaratory relief (that all claims by Paul and Marlys are meritless / precluded) warranted relief	Fogarty/Teichman: asserted claims against them are without merit and precluded	Marlys: opposed	Held: Denied — appellants failed to present a discernible legal argument or show entitlement to such sweeping declaratory relief.

Key Cases Cited

In re Estate of Hutton, 306 Neb. 579, 946 N.W.2d 669 (Neb. 2020) (standard of review for Probate Code matters)
In re Estate of Karmazin, 299 Neb. 315, 908 N.W.2d 381 (Neb. 2018) (appeal from allowance/disallowance of probate claim treated as an action at law)
In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (Neb. 2009) (distinguishing probate estate from non-testamentary trust property and jurisdictional limits)
In re Estate of Feuerhelm, 215 Neb. 872, 341 N.W.2d 342 (Neb. 1983) (definition of a presented claim; mere notice does not satisfy nonclaim statute)
J.R. Simplot Co. v. Jelinek, 275 Neb. 548, 748 N.W.2d 17 (Neb. 2008) (notice to estate representatives does not constitute presenting a claim under § 30-2486)
In re Estate of Masopust, 232 Neb. 936, 443 N.W.2d 274 (Neb. 1989) (nonclaim statute is mandatory; late claims barred)
In re Estate of Odineal, 220 Neb. 168, 368 N.W.2d 800 (Neb. 1985) (good faith requirement and denial of compensation when PR pursued only personal gain)
In re Estate of Watkins, 243 Neb. 583, 501 N.W.2d 292 (Neb. 1993) (rejecting a free-standing ‘benefit to the estate’ test; interpreting good faith under § 30-2481)
In re Estate of Reimer, 229 Neb. 406, 427 N.W.2d 293 (Neb. 1988) (affirming award to nominated PR and attorney when evidence supported good faith)