Duty of personal representative; possession of estate.
Except as otherwise provided by a decedent's will, every personal representative has a right to, and shall take possession or control of, the decedent's property, except that any real property or tangible personal property may be left with or surrendered to the person presumptively entitled thereto unless or until, in the judgment of the personal representative, possession of the property by him will be necessary for purposes of administration. The request by a personal representative for delivery of any property possessed by an heir or devisee is conclusive evidence, in any action against the heir or devisee for possession thereof, that the possession of the property by the personal representative is necessary for purposes of administration. The personal representative shall pay taxes on, and take all steps reasonably necessary for the management, protection and preservation of, the estate in his possession. He may maintain an action to recover possession of property or to determine the title thereto.
Source:Laws 1974, LB 354, § 148, UPC § 3-709.
Under the Nebraska Probate Code, the right and duty to sue and recover assets for an estate reside in the estate's appointed personal representative, not the devisees. In re Estate of Hedke, 278 Neb. 727, 775 N.W.2d 13 (2009).
A personal representative may maintain an action with respect to real estate only to the extent the personal representative has possession of the real estate for purposes of estate administration. Ruzicka v. Ruzicka, 262 Neb. 824, 635 N.W.2d 528 (2001).
This section gives the personal representative specific authority to "maintain an action to recover possession of property or to determine the title thereto". Beachy v. Becerra, 259 Neb. 299, 609 N.W.2d 648 (2000).
The personal representative has the right to take possession and control of the decedent's real property. However, real or personal property may be left with or surrendered to the person presumptively entitled to it unless or until, in the judgment of the personal representative, possession of the property will be necessary for purposes of estate administration. Mischke v. Mischke, 253 Neb. 439, 571 N.W.2d 248 (1997).
In the absence of an allegation that a decedent's property is necessary for purposes of administration, a personal representative has no authority to take possession or control of a decedent's property. In re Estate of Kesting, 220 Neb. 524, 371 N.W.2d 107 (1985).
The personal representative of a decedent's estate, not its beneficiary, has standing to seek to set aside a decedent's inter vivos transfer of bonds. Hampshire v. Powell, 10 Neb. App. 148, 626 N.W.2d 620 (2001).