In re Estate of Giventer
964 N.W.2d 234
Neb.2021Background
- Pearl Giventer executed a 2012 will drafted by attorney Edward F. Fogarty that nominated J. Bruce Teichman as personal representative and purported to revoke a 2010 trust amendment that had placed Wells Fargo as trustee.
- Pearl had been under guardianship; a county court previously limited Fogarty’s representation to challenging the guardianship; the Court of Appeals affirmed that limitation.
- After Pearl died in May 2013, Fogarty sought predeath fees (for work done while Pearl lived) from the trust and later from the probate estate, and Fogarty and Teichman sought postdeath fees for efforts to probate the 2012 will.
- The county court denied predeath fees as time-barred under the probate nonclaim statute and denied postdeath fees, reasoning Teichman was only nominated (not appointed), the probate estate lacked funds, and the 2012 will was unenforceable so the postdeath work was not “necessary.”
- The Nebraska Supreme Court affirmed the time-bar ruling for predeath fees but reversed the denial of postdeath fees, finding several of the county court’s legal reasons erroneous and remanding for further proceedings to determine good faith, necessity, and reasonableness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of predeath fee claims under §30-2485 | Fogarty: his June 2013 application in the trust (or §30-2485(b) 4-month rule) preserved his claim | Marlys: claims against the probate estate must be filed under §30-2485(a)(2) within 3 years; trust filing insufficient | Court: affirmed — predeath fees arose before death and any claim against probate estate had to be filed within 3 years; Fogarty’s trust filing did not satisfy §30-2485 for probate estate claims. |
| Whether a filing in trust proceedings presents a claim against the decedent’s probate estate | Fogarty: trust filing or notice put parties on notice and sufficed | Marlys: trust filing is not a probate claim; probate and trust proceedings are distinct | Held: filing in trust proceedings is not a claim against the probate estate for purposes of §§30-2485/30-2486; notice alone insufficient. |
| Entitlement to postdeath fees under §30-2481 for a nominated personal representative | Fogarty/Teichman: §30-2481 entitles a nominated PR (and attorney) to necessary expenses and reasonable fees if they acted in good faith, whether successful or not | County court/Marlys: deny because Teichman never served, probate estate lacked funds, and the will was unenforceable so efforts were not “necessary” | Court: reversed — statute expressly covers persons nominated as PR and protects unsuccessful good-faith actions; county court erred as a matter of law in denying for those reasons; remand to determine good faith, necessity, and reasonableness on the record. |
| Whether a court may deny §30-2481 fees because the litigation position lacked objective merit (i.e., should have known will unenforceable) | Fogarty: good faith suffices even if litigation fails | Marlys: lack of merit/should-have-known defeats necessity and recovery | Held: court: Nebraska’s §30-2481 contains no “just cause” requirement; objective merit may inform but cannot alone bar compensation if the actor sincerely acted in good faith; remand for county court factfinding. |
Key Cases Cited
- In re Estate of Hutton, 306 Neb. 579 (2020) (standard of review for probate-code matters)
- In re Estate of Karmazin, 299 Neb. 315 (2018) (treatment of allowance/disallowance of probate claims as actions at law)
- In re Estate of Masopust, 232 Neb. 936 (1989) (nonclaim statute is mandatory)
- J.J. Schaefer Livestock Hauling v. Gretna St. Bank, 229 Neb. 580 (1988) (application of nonclaim statute)
- In re Estate of Chrisp, 276 Neb. 966 (2009) (distinguishing probate estate from trust property and limits of probate court jurisdiction)
- In re Estate of Feuerhelm, 215 Neb. 872 (1983) (demand upon the estate required to present a claim)
- J.R. Simplot Co. v. Jelinek, 275 Neb. 548 (2008) (notice alone does not satisfy presenting a claim under nonclaim statute)
- In re Estate of Odineal, 220 Neb. 168 (1985) (interpretation of §30-2481’s good faith requirement)
- In re Estate of Watkins, 243 Neb. 583 (1993) (rejecting “benefit to the estate” as independent criterion for compensation)
- In re Estate of Reimer, 229 Neb. 406 (1988) (nominated PR and attorney may be awarded compensation under probate statutes)