In re Estate of Severson
310 Neb. 982
Neb.2022Background
- Ryan Severson died in March 2017; no personal representative had been appointed for his Nebraska estate.
- Creditor Don Feik filed an application in Franklin County on March 1, 2021 to informally appoint Severson’s mother, Diane Kelly (now Schubert), as personal representative for the limited purpose of receiving service in a pending Kearney County tort action.
- Kelly objected, refused to accept appointment, and argued the appointment proceeding was barred by the 3-year statute in Neb. Rev. Stat. § 30-2408.
- On March 23, 2021 the probate court appointed Kelly, waived certain formalities, and issued letters of personal representative despite no filed statement of acceptance or qualification by Kelly.
- Kelly appealed; the Nebraska Supreme Court considered (1) whether the probate order was final and appealable, (2) whether letters could be issued without the appointee’s qualification/acceptance, and (3) whether § 30-2408 barred the proceeding.
Issues
| Issue | Plaintiff's Argument (Feik) | Defendant's Argument (Kelly) | Held |
|---|---|---|---|
| Finality / jurisdiction of appointment order | The appointment and issuance of letters ended a discrete probate phase and is a final, appealable order. | The order was not final and therefore not appealable. | Court: final — appointment in a special proceeding affected a substantial right (ended a discrete phase; imposed fiduciary duties). |
| Issuance of letters without qualification/acceptance | The court properly appointed Kelly and issued letters to enable service in the civil case. | A person cannot be compelled to serve; letters cannot issue absent statutory qualification and a filed acceptance. | Court: issuance of letters without Kelly’s qualification/acceptance was unauthorized; reversed and remanded. |
| Applicability of § 30-2408 (3-year rule) | Exception in § 30-2408(4) permits an informal appointment where no probate occurred within 3 years; the clause limits recoverable claims, not commencement. | The proceeding was barred because it was commenced more than 3 years after death. | Court: exception applies; proceeding could be commenced; clause limits claims available, not the ability to commence appointment. |
| Scope / advisory pronouncements about Kearney County case | Probate court’s statements were necessary to prevent an ‘‘absurd result’’ in the civil case. | Probate court exceeded its authority and ventured into matters outside the appointment proceeding. | Court: reversed portions of probate order that opined on matters outside appointment proceeding; declined to resolve collateral effects of issued letters. |
Key Cases Cited
- In re Estate of Beltran, 964 N.W.2d 714 (2021) (framework for finality in probate special proceedings)
- In re Estate of Larson, 953 N.W.2d 535 (2021) (orders that end a discrete phase affect substantial rights)
- In re Guardianship of Nicholas H., 958 N.W.2d 661 (2021) (appointment not completed without written acceptance; letters do not issue until acceptance)
- Matter of Estate of Cluff, 587 P.2d 128 (Utah 1978) (authority discussing prohibition on compelling unwilling persons to serve as administrators)
- State ex rel. Peterson v. Ebke, 930 N.W.2d 551 (2019) (courts should not issue advisory opinions)
- In re Estate of Nemetz, 735 N.W.2d 363 (2007) (interpretation of § 30-2408 permitting tardy informal appointments where no probate occurred within three years)