In re Estate of Giventer, 310 Neb. 39

Background

Pearl R. Giventer executed a 2012 will drafted by attorney Edward Fogarty that named J. Bruce Teichman as nominated personal representative and purported to revoke a 2010-amended revocable trust that then controlled nearly all of her assets.
While Pearl was under guardianship, the county court limited Fogarty’s predeath representation to narrow purposes; Fogarty nevertheless procured a psychiatrist evaluation and had Pearl execute the 2012 will.
Pearl died in May 2013. Fogarty sought payment of predeath fees from the trust in June 2013 and later (2016–2018) sought predeath and substantial postdeath fees/expenses from the probate estate and trust (totaling ~ $500,000 claimed).
The county court disallowed predeath fee claims as time‑barred under Neb. Rev. Stat. § 30-2485(a)(2) and denied postdeath fee claims under § 30-2481, reasoning the services were not “necessary” because the 2012 will was unenforceable; Fogarty and Teichman appealed.
The Nebraska Supreme Court affirmed the denial of predeath claims as untimely but reversed and remanded the denial of postdeath claims, finding the county court’s legal bases for denying postdeath fees were erroneous and requiring further factfinding on good faith and necessity.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of predeath fee claims under § 30-2485	Fogarty: his June 12, 2013 application in the trust presented the claim within applicable limitations (arguing § 30-2485(b) or that trust filing sufficed).	Marlys: claims against the probate estate must be filed under the probate nonclaim statute; a filing in trust does not present a probate claim.	Court: Affirmed county court — predeath claims against the probate estate were not timely filed under § 30-2485(a)(2); filing in trust did not satisfy probate nonclaim statute.
Whether a nominated (but not appointed) personal representative can recover postdeath fees under § 30-2481	Fogarty/Teichman: § 30-2481 permits recovery by a nominated personal representative who prosecutes/defends proceedings in good faith.	Marlys: Teichman didn’t serve as PR; services did not benefit estate; conduct showed bad faith/self-interest.	Court: Reversed county court’s denial to the extent it relied on the fact Teichman was only nominated; § 30-2481 expressly covers nominated PRs.
Whether unsuccessful or objectively meritless litigation bars recovery under § 30-2481	Fogarty/Teichman: statute entitles those who act in good faith to necessary expenses “whether successful or not.”	Marlys: because the 2012 will was unenforceable (and arguably meritless), fees should be denied.	Court: County court erred to deny solely because the will was unenforceable or because appellants “should have known” it was; § 30-2481 contains no "just cause" limitation — good faith and necessity remain the issues for the county court to decide.
Broad declaratory relief / claim preclusion re: Paul and Marlys’ claims	Fogarty/Teichman: seek declaration that Paul and Marlys’ claims/slurs are without merit and precluded.	Marlys: (did not obtain affirmative relief on rejected grounds below; no cross-appeal).	Court: Denied — appellants provided no coherent legal argument showing entitlement to sweeping declaratory relief; claim preclusion not established.

Key Cases Cited

In re Estate of Hutton, 306 Neb. 579, 946 N.W.2d 669 (Neb. 2020) (standard of review for matters under 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 action at law)
In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (Neb. 2009) (distinguishing probate estate from trust assets; limits county court jurisdiction over trusts)
In re Estate of Feuerhelm, 215 Neb. 872, 341 N.W.2d 342 (Neb. 1983) (a claim requires a demand upon the estate; notice alone does not constitute presentation)
J.R. Simplot Co. v. Jelinek, 275 Neb. 548, 748 N.W.2d 17 (Neb. 2008) (mere notice to representatives does not satisfy nonclaim statute)
In re Estate of Masopust, 232 Neb. 936, 443 N.W.2d 274 (Neb. 1989) (nonclaim statute requirements are mandatory)
J. J. Schaefer Livestock Hauling v. Gretna St. Bank, 229 Neb. 580, 428 N.W.2d 185 (Neb. 1988) (interpretation of nonclaim procedures)
In re Estate of Odineal, 220 Neb. 168, 368 N.W.2d 800 (Neb. 1985) (denial of compensation where personal representative lacked good faith)
In re Estate of Watkins, 243 Neb. 583, 501 N.W.2d 292 (Neb. 1993) (interpretation of "good faith" under statute governing PR compensation)
In re Estate of Reimer, 229 Neb. 406, 427 N.W.2d 293 (Neb. 1988) (award of compensation to nominated PR affirmed)