In re Estate of Giventer
310 Neb. 39
Neb.2021Background
- Pearl Giventer executed a revocable trust (amended 2010) and a pourover will; in 2012, while under guardianship, she signed a new will drafted by attorney Edward Fogarty that nominated J. Bruce Teichman as personal representative and purported to revoke the 2010 trust amendments.
- Fogarty had been retained in 2011 but the county court (later affirmed by the Court of Appeals) limited his representation to challenging the guardianship under Neb. Rev. Stat. § 30-2620(9).
- Pearl died in May 2013. Fogarty sought payment of fees incurred before death from the trust in June 2013 and filed various claims and filings thereafter; a written claim against the probate estate was not filed until July 2016 and petitions in probate were filed in April 2018.
- The county court (June 2019, modified Jan. 2020) denied (1) predeath fees as time-barred under the probate nonclaim statute and (2) postdeath fees under § 30-2481, reasoning the services were not "necessary" because the 2012 will was unenforceable, Teichman never served as personal representative, and the probate estate lacked funds.
- The Nebraska Supreme Court affirmed denial of predeath fees (claim was not presented to the probate estate within the § 30-2485 limitations), reversed the denial of postdeath fees (county court erred as a matter of law), and remanded for the county court to determine on the existing record whether and to what extent postdeath fees are recoverable.
Issues
| Issue | Plaintiff's Argument (Fogarty/Teichman) | Defendant's Argument (Marlys/Trust) | Held |
|---|---|---|---|
| Whether predeath attorney fees were timely presented against the probate estate under § 30-2485 | Filing an application in the trust proceedings (June 2013) or later filings satisfied the nonclaim statute | A demand against the trust is not a claim against the probate estate; no written claim was filed with the probate clerk within § 30-2485 time limits | Held: Predeath fees are time-barred. The trust filing did not present a claim against the probate estate; § 30-2485(a)(2) 3-year rule applied and was not met |
| Whether postdeath fees (for prosecuting/defending probate of the 2012 will) are recoverable under § 30-2481 | Entitled to necessary expenses and reasonable attorney fees when a nominated personal representative prosecutes/defends proceedings in good faith, whether successful or not | County court may deny fees because the will was unenforceable, PR never served, or probate estate lacks funds | Held: County court erred as a matter of law in denying solely because the will was unenforceable, because Teichman was only nominated, or because estate lacked funds; remanded to determine good faith, necessity, and reasonableness |
| Whether a nominated personal representative must actually be appointed to recover under § 30-2481 | Recovery requires appointment/actual service as personal representative | § 30-2481 expressly covers persons nominated as personal representative who prosecute/defend in good faith | Held: A nominated personal representative may recover; lack of appointment is not a bar under § 30-2481 |
| Whether appellants are entitled to broad declaratory relief (all claims by Paul and Marlys without merit / claim preclusion) | Seeks declaration that all attacks by Paul and Marlys are meritless and precluded | No convincing showing; appellees did not cross-appeal on alternative upheld grounds | Held: Request denied—appellants failed to present a discernible legal argument or basis for the broad relief requested |
Key Cases Cited
- In re Estate of Hutton, 306 Neb. 579, 946 N.W.2d 669 (Neb. 2020) (standard for reviewing matters under the Nebraska Probate Code)
- In re Estate of Karmazin, 299 Neb. 315, 908 N.W.2d 381 (Neb. 2018) (appeal of allowance/disallowance of probate claim is treated as action at law)
- In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (Neb. 2009) (distinguishing probate estate from trust property and limits on probate court jurisdiction over trusts)
- In re Estate of Feuerhelm, 215 Neb. 872, 341 N.W.2d 342 (Neb. 1983) (notice is not a substitute for filing under the nonclaim statute)
- J.R. Simplot Co. v. Jelinek, 275 Neb. 548, 748 N.W.2d 17 (Neb. 2008) (mere notice does not satisfy claim-presentation requirements)
- In re Estate of Odineal, 220 Neb. 168, 368 N.W.2d 800 (Neb. 1985) (good faith requirement under § 30-2481 and denial when repr. acted for personal gain)
- In re Estate of Watkins, 243 Neb. 583, 501 N.W.2d 292 (Neb. 1993) (statutory framework controls entitlement to compensation; county court’s factual findings on good faith reviewed for support)
- In re Estate of Reimer, 229 Neb. 406, 427 N.W.2d 293 (Neb. 1988) (awarding compensation to nominated PR where actions were in good faith)