839 N.W.2d 368
Neb. Ct. App.2013Background
- Mason D. Robb died in 2010; Theodore Robb became personal representative and trustee of the Mason D. Robb Revocable Living Trust.
- The Trust split assets among Theodore and Linda Hahn, with Linda’s share held in a Family Trust for her lifetime; Theodore’s share delivered to him outright.
- Linda and Shawn Eichman filed motions in 2011–2012 to remove Theodore as personal representative and trustee and sought appointment of a special administrator.
- The trial court found Theodore commingled funds, failed to timely file inventories and accounts, and engaged in self-dealing and self-rental of trust property.
- The trial court removed Theodore as both personal representative and trustee, holding removal was in the best interests of the estate and the Trust.
- The court noted substantial conflicts of interest and failure to account for assets, including a $50,000 “death-bed transfer” and unaccounted rent from trust properties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Removal of personal representative in best interests | Robb argues removal not necessary/appropriate. | Robb’s removal served best interests; mismanagement shown. | Removal proper; in best interests and due to mismanagement. |
| Removal of trustee for a serious breach of trust | Robb contends no serious breach merits removal. | Trustee breached duties, including self-dealing and commingling. | Removal proper; serious breach shown and conflict persists. |
| Suitability of appointing a special administrator instead | Court should appoint a limited special administrator. | Special administrator would not remedy widespread conflicts. | Court could remove rather than appoint a special administrator; removal affirmed. |
Key Cases Cited
- Burnham v. Bennison, 121 Neb. 291 (1931) (trustee removal as equity issue; standard for removal)
- In re Estate of Seidler, 490 N.W.2d 453 (1992) (removal of personal representative; best interests standard)
- In re Estate of Krumwiede, 647 N.W.2d 625 (2002) (personal representative removal not equity issue)
- Sherman v. Sherman, 751 N.W.2d 168 (2008) (self-dealing by trustee; not in beneficiaries’ interests)
- In re Margaret Mastny Revocable Trust, 794 N.W.2d 700 (2011) (issue-specific review standards in trust matters)