967 N.W.2d 734
Neb. Ct. App.2021Background:
- Victor Schurman died 2012; his will left most residue to son Michael and gave his second wife Christine specified real property and other assets.
- Michael farmed six parcels ("Six Parcels"); he received lease payments (including a $57,000 payment and later $120,000 yearly rent) and the estate did not demand remittance; successor PR deeded an undivided one-half interest in the Six Parcels to Michael in 2015.
- Christine later died; her children Patricia and Jeffrey Harris (the intervenors) became successor cotrustees of the Christine J. Schurman Revocable Trust and sought to protect trust interests in probate.
- Intervenors moved to (a) recover attorney fees Christine/Trust paid defending Michael’s claims (in both district and probate court), (b) hold Michael liable for estate administration fees charged by the successor PR and his attorneys, and (c) require Michael to remit roughly $160,000 (rents and government payments) to the estate; they also asked for an accounting.
- The county (probate) court ordered Michael to return $160,000, denied reimbursement of district-court fees, declined to award probate fees, and left claims about estate expenses open; Michael appealed.
Issues:
| Issue | Plaintiff's Argument (Intervenors) | Defendant's Argument (Michael) | Held |
|---|---|---|---|
| Standing / jurisdiction to recover attorney fees incurred in district-court litigation | Intervenors: Trust paid fees defending Michael’s district-court claims and may be reimbursed by Michael | Michael: Intervenors lack standing and probate court lacks authority over district-court fee claims | Court: Probate court lacked subject-matter jurisdiction over district-court fees; that portion of the order is void and vacated |
| Standing to recover attorney fees incurred in probate proceedings | Intervenors: Court may assess probate fees paid by Christine/Trust against Michael | Michael: Only a personal representative may seek recovery tied to estate matters | Court: Intervenors had standing to request direct assessment against Michael for probate fees; county court denied fees and that denial is affirmed (no cross-appeal) |
| Standing to recoup estate assets / compel Michael to return $160,000 | Intervenors: Michael retained estate-derived income; Trust should be reimbursed and Michael required to remit funds | Michael: Personal representative never demanded remittance and distributed property to Michael; only PR can recover estate assets | Court: Intervenors lacked standing to compel recoupment of estate assets (only PR may sue to recover estate property absent PR refusal); order requiring return of $160,000 was vacated |
| Right to obtain an accounting from the estate | Intervenors: as successor cotrustees and beneficiaries, they have an interest in Trust finances and a right to an accounting of estate administration | Michael: (challenged merits and standing generally) | Court: Intervenors have standing to request an accounting; county court’s expansion of special administrator duties to finish closing tasks was permitted |
Key Cases Cited
- In re Estate of Hedke, 278 Neb. 727 (Neb. 2009) (standing limits and special-administrator/PR role when PR refuses or is absent)
- Hahn v. Verret, 143 Neb. 820 (Neb. 1943) (executor’s authority to reacquire estate assets to pay debts/expenses)
- In re Estate of Jurgensmeier, 142 Neb. 188 (Neb. 1942) (devisees may object to a personal representative’s accounting)
- Malousek v. Meyer, 309 Neb. 803 (Neb. 2021) (right and duty to sue to recover estate assets resides with appointed personal representative)
- Mischke v. Mischke, 253 Neb. 439 (Neb. 1997) (authority to recover property from an heir lies with the personal representative)
- In re Estate of Emery, 258 Neb. 789 (Neb. 2000) (probate jurisdiction is in rem and every interested person may appear to protect interests)
- In re Estate of Graham, 301 Neb. 594 (Neb. 2018) (interested persons may object to administration accounts)