In re Estate of Hutton
306 Neb. 579
| Neb. | 2020Background
- William D. Hutton died intestate in 2015; his children John Hutton and Alexis Elledge were informally appointed copersonal representatives and later split estate assets unevenly.
- Communication broke down; the county court removed the copersonal representatives and appointed attorney John Hodge as successor personal representative in February 2017.
- Hodge administered the estate, paid some taxes and costs from remaining funds, and later applied for approval of his fees and expenses. The estate was insolvent.
- At a hearing Hodge requested payment; the county court ordered Webster County to pay Hodge $6,455.63 despite no statutory citation authorizing the county to be charged.
- Webster County appealed; the Nebraska Supreme Court moved the case to its docket and reviewed whether the county court had authority to require the county to pay the successor personal representative’s fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the county court could order the county to pay a court-appointed successor personal representative’s fees and expenses | Hodge sought court approval and requested the county pay because the estate was insolvent and heirs’ obligations were likely uncollectible | County argued no statute authorizes charging the county for personal representative fees; estate or heirs, not county, are liable | Court held there is no statutory authority to order county to pay successor personal representative’s fees; vacated order |
| If the estate became insolvent, whether the court should have prioritized payment to Hodge from estate assets before seeking county payment | Hodge had paid some taxes and costs; sought compensation despite insolvency | County argued the court should have ordered the estate to pay Hodge first and considered statutory payment priorities | Court declined to decide priority under § 30-2487 because it found no authority to order the county to pay; appellate court limited decision to authority issue |
| Significance of court’s use of “discharge” vs “termination” of prior copersonal representatives | (Raised in concurrence) Court used "discharged" language when removing prior representatives | County implied removal/termination would preserve liability for prior representatives’ acts | Concurrence emphasized legal distinction between termination and discharge and urged courts to use terminology precisely; no definitive ruling on legal effect in this case |
Key Cases Cited
- In re Guardianship of Suezanne P., 6 Neb. App. 785, 578 N.W.2d 64 (1998) (vacating order requiring county to pay attorney fees where county was not involved and no statutory authority existed)
- In re Adoption of Kailynn D., 273 Neb. 849, 733 N.W.2d 856 (2007) (construing statutory omissions to show Legislature did not intend counties to pay certain appointed counsel fees)
- In re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 (2018) (discussing county court discretion to fix personal representative compensation)
- City of Falls City v. Nebraska Mun. Power Pool, 281 Neb. 230, 795 N.W.2d 256 (2011) (noting costs and litigation expenses may not be recovered absent statute or uniform course of procedure)