30-502. Definitions.

In the Revised Uniform Fiduciary Access to Digital Assets Act (2015):

(1) Account means an arrangement under a terms-of-service agreement in which a custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides goods or services to the user;

(2) Agent means an attorney in fact granted authority under a durable or nondurable power of attorney;

(3) Carries means engages in the transmission of an electronic communication;

(4) Catalogue of electronic communications means information that identifies each person with which a user has had an electronic communication, the time and date of the communication, and the electronic address of the person;

(5) Conservator means a person appointed by a court to manage the estate of a living individual. The term includes a limited conservator;

(6) Content of an electronic communication means information concerning the substance or meaning of the communication which:

(A) has been sent or received by a user;

(B) is in electronic storage by a custodian providing an electronic communication service to the public or is carried or maintained by a custodian providing a remote-computing service to the public; and

(7) Court means the county court;

(8) Custodian means a person that carries, maintains, processes, receives, or stores a digital asset of a user;

(9) Designated recipient means a person chosen by a user using an online tool to administer digital assets of the user;

(10) Digital asset means an electronic record in which an individual has a right or interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record;

(11) Electronic means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities;

(12) Electronic communication has the meaning set forth in 18 U.S.C. 2510(12), as amended;

(13) Electronic communication service means a custodian that provides to a user the ability to send or receive an electronic communication;

(14) Fiduciary means an original, additional, or successor personal representative, conservator, agent, or trustee;

(15) Information means data, text, images, videos, sounds, codes, computer programs, software, databases, or the like;

(16) Online tool means an electronic service provided by a custodian that allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person;

(17) Person means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity;

(18) Personal representative means an executor, administrator, special administrator, or person that performs substantially the same function under law of this state other than the Revised Uniform Fiduciary Access to Digital Assets Act (2015);

(19) Power of attorney means a record that grants an agent authority to act in the place of a principal;

(20) Principal means an individual who grants authority to an agent in a power of attorney;

(21) Protected person means an individual for whom a conservator has been appointed. The term includes an individual for whom an application for the appointment of a conservator is pending;

(22) Record means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;

(23) Remote-computing service means a custodian that provides to a user computer-processing services or the storage of digital assets by means of an electronic communications system, as defined in 18 U.S.C. 2510(14), as amended;

(24) Terms-of-service agreement means an agreement that controls the relationship between a user and a custodian;

(25) Trustee means a fiduciary with legal title to property under an agreement or declaration that creates a beneficial interest in another. The term includes a successor trustee;

(26) User means a person that has an account with a custodian; and

(27) Will includes a codicil, testamentary instrument that only appoints an executor, and instrument that revokes or revises a testamentary instrument.

Source:Laws 2016, LB829, § 2.

30-503. Applicability.

(a) The Revised Uniform Fiduciary Access to Digital Assets Act (2015) applies to:

(1) a fiduciary acting under a will or power of attorney executed before, on, or after January 1, 2017;

(2) a personal representative acting for a decedent who died before, on, or after January 1, 2017;

(3) a conservatorship proceeding commenced before, on, or after January 1, 2017; and

(4) a trustee acting under a trust created before, on, or after January 1, 2017.

(b) The Revised Uniform Fiduciary Access to Digital Assets Act (2015) applies to a custodian if the user resides in this state or resided in this state at the time of the user’s death.

(c) The Revised Uniform Fiduciary Access to Digital Assets Act (2015) does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer’s business.

Source:Laws 2016, LB829, § 3.

30-504. User direction for disclosure of digital assets.

(a) A user may use an online tool to direct the custodian to disclose to a designated recipient or not to disclose some or all of the user’s digital assets, including the content of electronic communications. If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney, or other record.

(b) If a user has not used an online tool to give direction under subsection (a) of this section or if the custodian has not provided an online tool, the user may allow or prohibit in a will, trust, power of attorney, or other record, disclosure to a fiduciary of some or all of the user’s digital assets, including the content of electronic communications sent or received by the user.

(c) A user’s direction under subsection (a) or (b) of this section overrides a contrary provision in a terms-of-service agreement that does not require the user to act affirmatively and distinctly from the user’s assent to the terms of service.

Source:Laws 2016, LB829, § 4.

30-505. Terms-of-service agreement.

(a) The Revised Uniform Fiduciary Access to Digital Assets Act (2015) does not change or impair a right of a custodian or a user under a terms-of-service agreement to access and use digital assets of the user.

(b) The Revised Uniform Fiduciary Access to Digital Assets Act (2015) does not give a fiduciary or a designated recipient any new or expanded rights other than those held by the user for whom, or for whose estate, the fiduciary or designated recipient acts or represents.

(c) A fiduciary’s or designated recipient's access to digital assets may be modified or eliminated by a user, by federal law, or by a terms-of-service agreement if the user has not provided direction under section 30-504.

Source:Laws 2016, LB829, § 5.

30-506. Procedure for disclosing digital assets.

(a) When disclosing digital assets of a user under the Revised Uniform Fiduciary Access to Digital Assets Act (2015), the custodian may at its sole discretion:

(1) grant a fiduciary or designated recipient full access to the user’s account;

(2) grant a fiduciary or designated recipient partial access to the user’s account sufficient to perform the tasks with which the fiduciary or designated recipient is charged; or

(3) provide a fiduciary or designated recipient a copy in a record of any digital asset that, on the date the custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account.

(b) A custodian may assess a reasonable administrative charge for the cost of disclosing digital assets under the Revised Uniform Fiduciary Access to Digital Assets Act (2015).

(c) A custodian need not disclose under the Revised Uniform Fiduciary Access to Digital Assets Act (2015) a digital asset deleted by a user.

(d) If a user directs or a fiduciary requests a custodian to disclose under the Revised Uniform Fiduciary Access to Digital Assets Act (2015) some, but not all, of the user’s digital assets, the custodian need not disclose the assets if segregation of the assets would impose an undue burden on the custodian. If the custodian believes the direction or request imposes an undue burden, the custodian or fiduciary may seek an order from the court to disclose:

(1) a subset limited by date of the user’s digital assets;

(2) all of the user’s digital assets to the fiduciary or designated recipient;

(3) none of the user’s digital assets; or

(4) all of the user’s digital assets to the court for review in camera.

Source:Laws 2016, LB829, § 6.

30-507. Disclosure of content of electronic communications of deceased user.

If a deceased user consented or a court directs disclosure of the contents of electronic communications of the user, the custodian shall disclose to the personal representative of the estate of the user the content of an electronic communication sent or received by the user if the representative gives the custodian:

(1) a written request for disclosure in physical or electronic form;

(2) a certified copy of the death certificate of the user;

(3) a certified copy of the letter of appointment of the representative or a small-estate affidavit or court order;

(4) unless the user provided direction using an online tool, a copy of the user’s will, trust, power of attorney, or other record evidencing the user’s consent to disclosure of the content of electronic communications; and

(5) if requested by the custodian:

(A) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;

(B) evidence linking the account to the user; or

(i) the user had a specific account with the custodian, identifiable by the information specified in subdivision (5)(A) of this section;

(ii) disclosure of the content of electronic communications of the user would not violate 18 U.S.C. 2701 et seq., as amended, 47 U.S.C. 222, as amended, or other applicable law;

(iii) unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications; or

(iv) disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate.

Source:Laws 2016, LB829, § 7.

30-508. Disclosures of other digital assets of deceased user.

Unless the user prohibited disclosure of digital assets or the court directs otherwise, a custodian shall disclose to the personal representative of the estate of a deceased user a catalogue of electronic communications sent or received by the user and digital assets, other than the content of electronic communications, of the user, if the representative gives the custodian:

(1) a written request for disclosure in physical or electronic form;

(2) a certified copy of the death certificate of the user;

(3) a certified copy of the letter of appointment of the representative or a small-estate affidavit or court order; and

(4) if requested by the custodian:

(A) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;

(B) evidence linking the account to the user;

(C) an affidavit stating that disclosure of the user’s digital assets is reasonably necessary for administration of the estate; or

(D) a finding by the court that:

(i) the user had a specific account with the custodian, identifiable by the information specified in subdivision (4)(A) of this section; or

(ii) disclosure of the user’s digital assets is reasonably necessary for administration of the estate.

Source:Laws 2016, LB829, § 8.

30-509. Disclosure of content of electronic communications of principal.

To the extent a power of attorney expressly grants an agent authority over the content of electronic communications sent or received by the principal and unless directed otherwise by the principal or the court, a custodian shall disclose to the agent the content if the agent gives the custodian:

(1) a written request for disclosure in physical or electronic form;

(2) an original or copy of the power of attorney expressly granting the agent authority over the content of electronic communications of the principal;

(3) a certification by the agent, under penalty of perjury, that the power of attorney is in effect; and

(4) if requested by the custodian:

(A) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal’s account; or

(B) evidence linking the account to the principal.

Source:Laws 2016, LB829, § 9.

30-510. Disclosures of other digital assets of principal.

Unless otherwise ordered by the court, directed by the principal, or provided by a power of attorney, a custodian shall disclose to an agent with specific authority over digital assets or general authority to act on behalf of a principal a catalogue of electronic communications sent or received by the principal and digital assets, other than the content of electronic communications, of the principal if the agent gives the custodian:

(1) a written request for disclosure in physical or electronic form;

(2) an original or a copy of the power of attorney that gives the agent specific authority over digital assets or general authority to act on behalf of the principal;

(3) a certification by the agent, under penalty of perjury, that the power of attorney is in effect; and

(4) if requested by the custodian:

(A) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal’s account; or

(B) evidence linking the account to the principal.

Source:Laws 2016, LB829, § 10.

30-511. Disclosure of digital assets held in trust when trustee is original user.

Unless otherwise ordered by the court or provided in a trust, a custodian shall disclose to a trustee that is an original user of an account any digital asset of the account held in trust, including a catalogue of electronic communications of the trustee and the content of electronic communications.

Source:Laws 2016, LB829, § 11.

30-512. Disclosure of digital assets held in trust when trustee is not original user.

Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose to a trustee that is not an original user of an account the content of an electronic communication sent or received by an original or successor user and carried, maintained, processed, received, or stored by the custodian in the account of the trust if the trustee gives the custodian:

(1) a written request for disclosure in physical or electronic form;

(2) a certified copy of the trust instrument, or a certification of the trust under section 30-38,102, that includes consent to disclosure of the content of electronic communications to the trustee;

(3) a certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust; and

(4) if requested by the custodian:

(A) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust’s account; or

(B) evidence linking the account to the trust.

Source:Laws 2016, LB829, § 12.

30-513. Disclosure of other digital assets held in trust when trustee not original user.

Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose, to a trustee that is not an original user of an account, a catalogue of electronic communications sent or received by an original or successor user and stored, carried, or maintained by the custodian in an account of the trust and any digital assets, other than the content of electronic communications, in which the trust has a right or interest if the trustee gives the custodian:

(1) a written request for disclosure in physical or electronic form;

(2) a certified copy of the trust instrument, or a certification of the trust under section 30-38,102;

(3) a certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust; and

(4) if requested by the custodian:

(A) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust’s account; or

(B) evidence linking the account to the trust.

Source:Laws 2016, LB829, § 13.

30-514. Disclosure of digital assets to conservator of protected person.

(a) After an opportunity for a hearing under section 30-2636, the court may grant a conservator access to the digital assets of a protected person.

(b) Unless otherwise ordered by the court or directed by the user, a custodian shall disclose to a conservator the catalogue of electronic communications sent or received by a protected person and any digital assets, other than the content of electronic communications, in which the protected person has a right or interest if the conservator gives the custodian:

(1) a written request for disclosure in physical or electronic form;

(2) a certified copy of the court order that gives the conservator authority over the digital assets of the protected person; and

(3) if requested by the custodian:

(A) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the account of the protected person; or

(B) evidence linking the account to the protected person.

(c) A conservator with general authority to manage the assets of a protected person may request a custodian of the digital assets of the protected person to suspend or terminate an account of the protected person for good cause. A request made under this section must be accompanied by a certified copy of the court order giving the conservator authority over the protected person’s property.

Source:Laws 2016, LB829, § 14.

30-515. Fiduciary duty and authority.

(a) The legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including:

(1) the duty of care;

(2) the duty of loyalty; and

(3) the duty of confidentiality.

(b) A fiduciary’s or designated recipient's authority with respect to a digital asset of a user:

(1) except as otherwise provided in section 30-504, is subject to the applicable terms-of-service agreement;

(2) is subject to other applicable law, including copyright law;

(3) in the case of a fiduciary, is limited by the scope of the fiduciary’s duties; and

(4) may not be used to impersonate the user.

(c) A fiduciary with authority over the property of a decedent, protected person, principal, or settlor has the right to access any digital asset in which the decedent, protected person, principal, or settlor had a right or interest and that is not held by a custodian or subject to a terms-of-service agreement.

(d) A fiduciary acting within the scope of the fiduciary’s duties is an authorized user of the property of the decedent, protected person, principal, or settlor for the purpose of applicable computer-fraud and unauthorized-computer-access laws, including the Computer Crimes Act and section 86-2,104.

(e) A fiduciary with authority over the tangible personal property of a decedent, protected person, principal, or settlor:

(1) has the right to access the property and any digital asset stored in it; and

(2) is an authorized user for the purpose of computer-fraud and unauthorized-computer-access laws, including the Computer Crimes Act and section 86-2,104.

(f) A custodian may disclose information in an account to a fiduciary of the user when the information is required to terminate an account used to access digital assets licensed to the user.

(g) A fiduciary of a user may request a custodian to terminate the user's account. A request for termination must be in writing, in either physical or electronic form, and accompanied by:

(1) if the user is deceased, a certified copy of the death certificate of the user;

(2) a certified copy of the letter of appointment of the representative or a small-estate affidavit or court order, power of attorney, or trust giving the fiduciary authority over the account; and

(3) if requested by the custodian:

(A) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;

(B) evidence linking the account to the user; or

(C) a finding by the court that the user had a specific account with the custodian, identifiable by the information specified in subdivision (3)(A) of this subsection.

Source:Laws 2016, LB829, § 15.

Cross References

Computer Crimes Act, see section 28-1341.

30-516. Custodian compliance and immunity.

(a) Not later than sixty days after receipt of the information required under sections 30-507 to 30-515, a custodian shall comply with a request under the Revised Uniform Fiduciary Access to Digital Assets Act (2015) from a fiduciary or designated recipient to disclose digital assets or terminate an account. If the custodian fails to comply, the fiduciary or designated recipient may apply to the court for an order directing compliance.

(b) An order under subsection (a) of this section directing compliance must contain a finding that compliance is not in violation of 18 U.S.C. 2702, as amended.

(c) A custodian may notify the user that a request for disclosure or to terminate an account was made under the Revised Uniform Fiduciary Access to Digital Assets Act (2015).

(d) A custodian may deny a request under the Revised Uniform Fiduciary Access to Digital Assets Act (2015) from a fiduciary or designated recipient for disclosure of digital assets or to terminate an account if the custodian is aware of any lawful access to the account following the receipt of the fiduciary’s request.

(e) The Revised Uniform Fiduciary Access to Digital Assets Act (2015) does not limit a custodian's ability to obtain or require a fiduciary or designated recipient requesting disclosure or termination under the act to obtain a court order which:

(1) specifies that an account belongs to the protected person or principal;

(2) specifies that there is sufficient consent from the protected person or principal to support the requested disclosure; and

(3) contains a finding required by law other than the act.

(f) A custodian and its officers, employees, and agents are immune from liability for an act or omission done in good faith in compliance with the Revised Uniform Fiduciary Access to Digital Assets Act (2015).

Source:Laws 2016, LB829, § 16.

30-517. Uniformity of application and construction.

In applying and construing the Revised Uniform Fiduciary Access to Digital Assets Act (2015), consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

Source:Laws 2016, LB829, § 17.

30-518. Relation to Electronic Signatures in Global and National Commerce Act.

The Revised Uniform Fiduciary Access to Digital Assets Act (2015) modifies, limits, or supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001 et seq., but does not modify, limit, or supersede section 101(c) of that act, 15 U.S.C. 7001(c), or authorize electronic delivery of any of the notices described in section 103(b) of that act, 15 U.S.C. 7003(b).

Source:Laws 2016, LB829, § 18.

30-601. Act, how cited.

Sections 30-601 to 30-619 shall be known and may be cited as the Health Care Surrogacy Act.

Source:Laws 2018, LB104, § 1.

30-602. Legislative intent; act, how construed.

(1) It is the intent of the Legislature to establish a process for the designation of a person to make a health care decision for an adult or an emancipated minor who becomes incapable of making such a decision in the absence of a guardian or an advance health care directive.

(2) The Legislature does not intend to encourage or discourage any particular health care decision or to create any new right or alter any existing right of competent adults or emancipated minors to make such decisions, but the Legislature does intend through the Health Care Surrogacy Act to allow an adult or an emancipated minor to exercise rights he or she already possesses by means of health care decisions made on his or her behalf by a qualified surrogate.

(3) The Health Care Surrogacy Act shall not confer any new rights regarding the provision or rejection of any specific medical treatment and shall not alter any existing law concerning homicide, suicide, or assisted suicide. Nothing in the Health Care Surrogacy Act shall be construed to condone, authorize, or approve purposefully causing, or assisting in causing, the death of any individual, such as by homicide, suicide, or assisted suicide.

Source:Laws 2018, LB104, § 2.

30-603. Terms, defined.

For purposes of the Health Care Surrogacy Act:

(1) Adult means an individual who is nineteen years of age or older;

(2) Advance health care directive means an individual instruction under the Health Care Surrogacy Act, a declaration executed in accordance with the Rights of the Terminally Ill Act, or a power of attorney for health care;

(3) Agent means a natural person designated in a power of attorney for health care to make a health care decision on behalf of the natural person granting the power;

(4) Capable means (a) able to understand and appreciate the nature and consequences of a proposed health care decision, including the benefits of, risks of, and alternatives to any proposed health care, and (b) able to communicate in any manner such health care decision;

(5) Emancipated minor means a minor who is emancipated pursuant to the law of this state or another state, including section 43-2101;

(6) Guardian means a judicially appointed guardian or conservator having authority to make a health care decision for a natural person;

(7) Health care means any care, treatment, service, procedure, or intervention to maintain, diagnose, cure, care for, treat, or otherwise affect an individual's physical or mental condition;

(8)(a) Health care decision means a decision made by an individual or the individual's agent, guardian, or surrogate regarding the individual's health care, including consent, refusal of consent, or withdrawal of consent to health care; and

(b) Health care decision includes:

(i) Selection and discharge of health care providers, health care facilities, and health care services;

(ii) Approval or disapproval of diagnostic tests, surgical procedures, programs of medication, and orders not to resuscitate; and

(iii) Directions to provide nutrition, hydration, and all other forms of health care;

(9) Health care facility means a facility licensed under the Health Care Facility Licensure Act or permitted by law to provide health care in the ordinary course of business;

(10) Health care provider means a natural person credentialed under the Uniform Credentialing Act or permitted by law to provide health care in the ordinary course of business or practice of a profession;

(11) Health care service means an adult day service, a home health agency, a hospice or hospice service, a respite care service, or a children's day health service licensed under the Health Care Facility Licensure Act or permitted by law to provide health care in the ordinary course of business. Health care service does not include an in-home personal services agency as defined in section 71-6501;

(12) Incapable means lacking the ability to understand and appreciate the nature and consequences of a proposed health care decision, including the benefits of, risks of, and alternatives to any proposed health care, or lacking the ability to communicate in any manner such health care decision;

(13) Individual means an adult or an emancipated minor for whom a health care decision is to be made;

(14) Individual instruction means an individual's direction concerning a health care decision for the individual;

(15) Life-sustaining procedure means any medical procedure, treatment, or intervention that (a) uses mechanical or other artificial means to sustain, restore, or supplant a spontaneous vital function and (b) when applied to a person who is in a terminal condition or who is in a persistent vegetative state, serves only to prolong the dying process. Life-sustaining procedure does not include routine care necessary to maintain patient comfort or the usual and typical provision of nutrition and hydration;

(16) Persistent vegetative state means a medical condition that, to a reasonable degree of medical certainty as determined in accordance with then current accepted medical standards, is characterized by a total and irreversible loss of consciousness and capacity for cognitive interaction with the environment and no reasonable hope of improvement;

(17) Physician means a natural person licensed to practice medicine and surgery or osteopathic medicine under the Uniform Credentialing Act;

(18) Power of attorney for health care means the designation of an agent under sections 30-3401 to 30-3432 or a similar law of another state to make health care decisions for the principal;

(19) Primary health care provider means (a) a physician designated by an individual or the individual's agent, guardian, or surrogate to have primary responsibility for the individual's health care or, in the absence of a designation or if the designated physician is not reasonably available, a physician who undertakes the responsibility or (b) if there is no such primary physician or such primary physician is not reasonably available, the health care provider who has undertaken primary responsibility for an individual's health care;

(20) Principal means a natural person who, when competent, confers upon another natural person a power of attorney for health care;

(21) Reasonably available means readily able to be contacted without undue effort and willing and able to act in a timely manner considering the urgency of an individual's health care needs;

(22) State means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or insular possession subject to the jurisdiction of the United States;

(23) Surrogate means a natural person who is authorized under section 30-604 to make a health care decision on behalf of an individual when a guardian or an agent under a power of attorney for health care has not been appointed or otherwise designated for such individual;

(24) Terminal condition means a medical condition caused by injury, disease, or physical illness which, to a reasonable degree of medical certainty, will result in death within six months regardless of the continued application of medical treatment, including life-sustaining procedures; and

(25) Usual and typical provision of nutrition and hydration means delivery of food and fluids orally, including by cup, eating utensil, bottle, or drinking straw.

Source:Laws 2018, LB104, § 3.

Cross References

Health Care Facility Licensure Act, see section 71-401.

Rights of the Terminally Ill Act, see section 20-401.

Uniform Credentialing Act, see section 38-101.

30-604. Surrogate; powers; designation of surrogate; priorities; consensus; meeting; continuation of authority; disqualification of surrogate.

(1) A surrogate may make a health care decision for an individual if the individual has been determined to be incapable by the primary health care provider and no agent or guardian has been appointed for the individual. A determination that an individual is incapable of making a health care decision shall not be construed as a finding that the individual is incapable for any other purpose.

(2)(a) An individual may designate a natural person to act as surrogate for the individual by personally informing the primary health care provider.

(b) If an individual has not designated a surrogate and there is no power of attorney for health care or court-appointed guardian for the individual, any member of the following classes of natural persons, in the following order of priority, may act as surrogate for the individual if such person is reasonably available at the time the health care decision is to be made on behalf of the individual and if such person has not been disqualified under the Health Care Surrogacy Act:

(i) The individual's spouse unless legally separated from the individual or unless proceedings are pending for divorce, annulment, or legal separation between the individual and his or her spouse;

(ii) A child of the individual who is an adult or an emancipated minor;

(iii) A parent of the individual; or

(iv) A brother or sister of the individual who is an adult or an emancipated minor.

(c) A person in a class with greater priority to serve as a surrogate may decline to serve as surrogate by informing the primary health care provider of that fact. Such fact shall be noted in the individual’s medical record.

(d) The primary health care provider may use discretion to disqualify a person who would otherwise be eligible to act as a surrogate based on the priority listed in subdivision (b) of this subsection if the provider has documented or otherwise clear and convincing evidence of an abusive relationship or documented or otherwise clear and convincing evidence of another basis for finding that the potential surrogate is not acting on behalf of or in the best interests of the individual. Any evidence so used to disqualify a person from acting as a surrogate shall be documented in full in the individual's medical record.

(3) A person who has exhibited special care and concern for the individual, who is familiar with the individual's personal values, and who is reasonably available to act as a surrogate is eligible to act as a surrogate under subsection (2) of this section.

(4) A surrogate shall communicate his or her assumption of authority as promptly as possible to the members of the individual's family specified in subsection (2) of this section who can be readily contacted.

(5)(a) If more than one member of a class having priority has authority to act as an individual's surrogate, such persons may act as the individual’s surrogate and any of such persons may be identified as one of the individual’s surrogates by the primary health care provider within the individual’s medical record, so long as such persons are in agreement about the health care decision to be made on behalf of the individual and attest to such agreement in a writing signed and dated by all persons claiming the authority and provided to the primary health care provider for inclusion with the individual’s medical record.

(b)(i) If two or more members of a class having the same priority claim authority to act as an individual’s surrogate and such persons are not in agreement about one or more health care decisions to be made on the individual’s behalf, the persons claiming authority shall confer with each other for purposes of arriving at consensus regarding the health care decision to be made in light of the individual’s known desires about health care, the individual’s personal values, the individual’s religious or moral beliefs, and the individual’s best interests. Each person claiming authority to act as an individual’s surrogate shall inform the primary health care provider about his or her claim and priority under the Health Care Surrogacy Act, the claim of any other person within the same class, the nature of the disagreement regarding the health care decision, and the efforts made by such person to reach agreement between and among other persons claiming authority to act as the individual’s surrogate.

(ii) To the extent possible, the primary health care provider shall seek a consensus of the persons claiming authority to act as the individual’s surrogate. The primary health care provider may convene a meeting of such persons with the primary health care provider and, as available and appropriate, other health care personnel involved in the individual’s care for purposes of reviewing and discussing the individual’s condition, prognosis, and options for treatment, the risks, benefits, or burdens of such options, the individual’s known desires about health care, the individual’s personal values, the individual’s religious or moral beliefs, and the individual’s best interests. If reasonably available, the primary health care provider may include members of other classes of priority in such meeting to hear and participate in the discussion.

(iii) The primary health care provider, in his or her discretion or at the request of the persons claiming authority as the individual’s surrogate, may also seek the assistance of other health care providers or the ethics committee or ethics consultation process of the health care facility or another health care entity to facilitate the meeting.

(iv) If a consensus about the health care decisions to be made on behalf of the individual cannot be attained between the persons of the same class of priority claiming authority to act as the individual’s surrogate to enable a timely decision to be made on behalf of the individual, then such persons shall be deemed disqualified to make health care decisions on behalf of the individual. The primary health care provider may then confer with other persons in the same class or within the other classes of lower priority consistent with subsection (2) of this section who may be reasonably available to make health care decisions on behalf of the individual.

(v) If no other person is reasonably available to act as a surrogate on behalf of the individual, then the primary health care provider may, consistent with the Health Care Surrogacy Act, take actions or decline to take actions determined by the primary health care provider to be appropriate, to be in accordance with the individual's personal values, if known, and moral and religious beliefs, if known, and to be in the best interests of the individual.

(6) A surrogate’s authority shall continue in effect until the earlier of any of the following:

(a) A guardian is appointed for the individual;

(b) The primary health care provider determines that the individual is capable of making his or her own health care decision;

(c) A person with higher priority to act as a surrogate under subsection (2) of this section becomes reasonably available;

(d) The individual is transferred to another health care facility; or

(e) The death of the individual.

(7)(a) An individual, if able to communicate the same, may disqualify another person from serving as the individual's surrogate, including a member of the individual's family, by a signed and dated writing or by personally informing the primary health care provider and a witness of the disqualification. In order to be a witness under this subdivision, a person shall be an adult or emancipated minor who is not among the persons who may serve as a surrogate under subsection (2) of this section.

(b) When the existence of a disqualification under this subsection becomes known, it shall be made a part of the individual’s medical record at the health care facility in which the individual is a patient or resides. The disqualification of a person to serve as a surrogate shall not revoke or terminate the authority as to a surrogate who acts in good faith under the surrogacy and without actual knowledge of the disqualification. An action taken in good faith and without actual knowledge of the disqualification of a person to serve as the individual’s surrogate under this subsection, unless the action is otherwise invalid or unenforceable, shall bind the individual and his or her heirs, devisees, and personal representatives.

(8) A primary health care provider may require a person claiming the right to act as surrogate for an individual to provide a written declaration under penalty of perjury stating facts and circumstances reasonably sufficient to establish that person's claimed authority.

(9) The authority of a surrogate shall not supersede any other advance health care directive.

Source:Laws 2018, LB104, § 4.

30-605. Persons disqualified to serve as surrogate.

Unless related to the individual by blood, marriage, or adoption, a surrogate may not be an owner, operator, or employee of a health care facility at which the individual is residing or receiving health care or a facility or an institution of the Department of Correctional Services or the Department of Health and Human Services to which the individual has been committed.

Source:Laws 2018, LB104, § 5.

30-606. Incapability; determination; documentation.

(1) A determination that an individual is incapable of making a health care decision shall be made in writing by the primary health care provider and any physician consulted with respect to such determination, and the physician or physicians shall document the cause and nature of the individual's incapability. The determination shall be included in the individual's medical record with the primary health care provider and, when applicable, with the consulting physician and the health care facility in which the individual is a patient or resides. When a surrogate has been designated or determined pursuant to section 30-604, the surrogate shall be included in the individual's medical record.

(2) A physician who has been designated an individual's surrogate shall not make the determination that the individual is incapable of making health care decisions.

Source:Laws 2018, LB104, § 6.

30-607. Notice.

Notice of a determination that an individual is incapable of making health care decisions shall be given by the primary health care provider (1) to the individual when there is any indication of the individual's ability to comprehend such notice, (2) to the surrogate, and (3) to the health care facility.

Source:Laws 2018, LB104, § 7.

30-608. County court procedure; petition; guardian ad litem; hearing.

If a dispute arises as to whether the individual is incapable, a petition may be filed with the county court in the county in which the individual resides or is located requesting the court's determination as to whether the individual is incapable of making health care decisions. If such a petition is filed, the court shall appoint a guardian ad litem to represent the individual. The court shall conduct a hearing on the petition within seven days after the court's receipt of the petition. Within seven days after the hearing, the court shall issue its determination. If the court determines that the individual is incapable, the authority, rights, and responsibilities of the individual's surrogate shall become effective. If the court determines that the individual is capable, the authority, rights, and responsibilities of the surrogate shall not become effective.

Source:Laws 2018, LB104, § 8.

30-609. Surrogate; powers; objection to surrogate decision; how treated.

(1) When the authority conferred on a surrogate under the Health Care Surrogacy Act has commenced, the surrogate, subject to any individual instructions, shall make health care decisions on the individual's behalf, except that the surrogate shall not have authority (a) to consent to any act or omission to which the individual could not consent under law, (b) to make any decision when the individual is known to be pregnant that will result in the death of the individual's unborn child if it is probable that the unborn child will develop to the point of live birth with continued application of health care, or (c) to make decisions regarding withholding or withdrawing a life-sustaining procedure or withholding or withdrawing artificially administered nutrition or hydration except as provided under section 30-610.

(2) If no agent or guardian has been appointed for the individual, the surrogate shall have priority over any person other than the individual to act for the individual in all health care decisions, except that the surrogate shall not have the authority to make any health care decision unless and until the individual has been determined to be incapable of making health care decisions pursuant to section 30-606.

(3) A person who would not otherwise be personally responsible for the cost of health care provided to the individual shall not become personally responsible for such cost because he or she has acted as the individual's surrogate.

(4) Except to the extent that the right is limited by the individual, a surrogate shall have the same right as the individual to receive information regarding the proposed health care, to receive and review medical and clinical records, and to consent to the disclosures of such records, except that the right to access such records shall not be a waiver of any evidentiary privilege.

(5) Notwithstanding a determination pursuant to section 30-606 that the individual is incapable of making health care decisions, when the individual objects to the determination or to a health care decision made by a surrogate, the individual's objection or decision shall prevail unless the individual is determined by a county court to be incapable of making health care decisions.

Source:Laws 2018, LB104, § 9.

30-610. Surrogate; duties.

(1) In exercising authority under the Health Care Surrogacy Act, a surrogate shall have a duty to consult with medical personnel, including the primary health care provider, and thereupon to make health care decisions (a) in accordance with the individual instructions or the individual’s wishes as otherwise made known to the surrogate or (b) if the individual's wishes are not reasonably known and cannot with reasonable diligence be ascertained, in accordance with the individual’s best interests, with due regard for the individual's religious and moral beliefs if known.

(2) Notwithstanding subdivision (1)(b) of this section, the surrogate shall not have the authority to consent to the withholding or withdrawing of a life-sustaining procedure or artificially administered nutrition or hydration unless (a) the individual is suffering from a terminal condition or is in a persistent vegetative state and such procedure or care would be an extraordinary or disproportionate means of medical treatment to the individual and (b) the individual explicitly grants such authority to the surrogate and the intent of the individual to have life-sustaining procedures or artificially administered nutrition or hydration withheld or withdrawn under such circumstances is established by clear and convincing evidence.

(3) In exercising any decision, the surrogate shall have no authority to withhold or withdraw consent to routine care necessary to maintain patient comfort or the usual and typical provision of nutrition and hydration.

Source:Laws 2018, LB104, § 10.

30-611. Primary health care provider; duties.

Before acting upon a health care decision made by a surrogate, other than those decisions made at or about the time of the initial determination of incapacity, the primary health care provider shall confirm that the individual continues to be incapable. The confirmation shall be stated in writing and shall be included in the individual's medical records. The notice requirements set forth in section 30-607 shall not apply to the confirmation required by this section.

Source:Laws 2018, LB104, § 11.

30-612. Petition; purposes; filed with county court.

(1) A petition may be filed for any one or more of the following purposes:

(a) To determine whether the authority of a surrogate under the Health Care Surrogacy Act is in effect or has been revoked or terminated;

(b) To determine whether the acts or proposed acts of a surrogate are consistent with the individual instruction or the individual's wishes as expressed or otherwise established by clear and convincing evidence or, when the wishes of the individual are unknown, whether the acts or proposed acts of the surrogate are clearly contrary to the best interests of the individual;

(c) To declare that the authority of a surrogate is revoked upon a determination by the court that the surrogate made or proposed to make a health care decision for the individual that authorized an illegal act or omission; or

(d) To declare that the authority of a surrogate is revoked upon a determination by the court of both of the following: (i) That the surrogate has violated, failed to perform, or is unable to perform the duty to act in a manner consistent with the individual instruction or the wishes of the individual or, when the desires of the individual are unknown, to act in a manner that is in the best interests of the individual; and (ii) that at the time of the determination by the court, the individual is unable to disqualify the surrogate as provided in subsection (7) of section 30-604.

(2) A petition under this section shall be filed with the county court of the county in which the individual resides or is located.

Source:Laws 2018, LB104, § 12.

30-613. Person eligible to file petition.

A petition under section 30-608 or 30-612 may be filed by any of the following:

(1) The individual;

(2) The surrogate;

(3) The spouse, parent, sibling, or child of the individual who is an adult or an emancipated minor;

(4) A close friend of the individual who is an adult or an emancipated minor;

(5) The primary health care provider or another health care provider; or

(6) Any other interested party.

Source:Laws 2018, LB104, § 13.

30-614. Liability for criminal offense; civil liability; violation of professional oath or code of ethics.

(1) A surrogate shall not be guilty of any criminal offense, subject to any civil liability, or in violation of any professional oath or code of ethics or conduct for any action taken in good faith pursuant to the Health Care Surrogacy Act.

(2) No primary health care provider, other health care provider, or health care facility shall be subject to criminal prosecution, civil liability, or professional disciplinary action for acting or declining to act in reliance upon the decision made by a person whom the primary health care provider or other health care provider in good faith believes is the surrogate. This subsection does not limit the liability of a primary health care provider, other health care provider, or health care facility for a negligent act or omission in connection with the medical diagnosis, treatment, or care of the individual.

Source:Laws 2018, LB104, § 14.

30-615. Individual's rights.

The existence of a surrogate for an individual under the Health Care Surrogacy Act does not waive the right of the individual to routine hygiene, nursing, and comfort care and the usual and typical provision of nutrition and hydration.

Source:Laws 2018, LB104, § 15.

30-616. Health care provider; exercise medical judgment.

In following the decision of a surrogate, a health care provider shall exercise the same independent medical judgment that the health care provider would exercise in following the decision of the individual if the individual were not incapable.

Source:Laws 2018, LB104, § 16.

30-617. Health care facility; rights; health care provider; rights.

(1) Nothing in the Health Care Surrogacy Act obligates a health care facility to honor a health care decision by a surrogate that the health care facility would not honor if the decision had been made by the individual because the decision is contrary to a formally adopted policy of the health care facility that is expressly based on religious beliefs or sincerely held ethical or moral convictions central to the operating principles of the health care facility. The health care facility may refuse to honor the decision whether made by the individual or by the surrogate if the health care facility has informed the individual or the surrogate of such policy, if reasonably possible. If the surrogate is unable or unwilling to arrange a transfer to another health care facility, the health care facility refusing to honor the decision may intervene to facilitate such a transfer.

(2) Nothing in the Health Care Surrogacy Act obligates a health care provider to honor or cooperate with a health care decision by a surrogate that the health care provider would not honor or cooperate with if the decision had been made by the individual because the decision is contrary to the health care provider's religious beliefs or sincerely held moral or ethical convictions. The health care provider shall promptly inform the surrogate and the health care facility of his or her refusal to honor or cooperate with the decision of the surrogate. In such event, the health care facility shall promptly assist in the transfer of the individual to a health care provider selected by the individual or the surrogate.

Source:Laws 2018, LB104, § 17.

30-618. Attempted suicide; how construed.

For purposes of making health care decisions, an attempted suicide by an individual shall not be construed as any indication of his or her wishes with regard to health care.

Source:Laws 2018, LB104, § 18.

30-619. Prohibited acts; penalties.

(1) It shall be a Class II felony for a person to willfully conceal or destroy evidence of any person’s disqualification as a surrogate under the Health Care Surrogacy Act with the intent and effect of causing the withholding or withdrawing of life-sustaining procedures or artificially administered nutrition or hydration which hastens the death of the individual.

(2) It shall be a Class I misdemeanor for a person without the authorization of the individual to willfully alter, forge, conceal, or destroy evidence of an advance health care directive, appointment of a guardian, appointment of an agent for the individual under a power of attorney for health care, or evidence of disqualification of any person as a surrogate under the Health Care Surrogacy Act.

(3) A physician or other health care provider who willfully prevents the transfer of an individual in accordance with section 30-617 with the intention of avoiding the provisions of the Health Care Surrogacy Act shall be guilty of a Class I misdemeanor.

Source:Laws 2018, LB104, § 19.

30-701. Terms, defined.

For purposes of sections 30-701 to 30-713:

(1) Adult child means an individual who is at least nineteen years of age and who is related to a resident biologically, through adoption, through the marriage or former marriage of the resident to the biological parent of the adult child, or by a judgment of parentage entered by a court of competent jurisdiction;

(2) Caregiver means a guardian, a designee under a power of attorney for health care, or another person or entity denying visitation access between a family member petitioner and a resident;

(3) Family member petitioner means the spouse, adult child, adult grandchild, parent, grandparent, sibling, aunt, uncle, niece, nephew, cousin, or domestic partner of a resident;

(4) Guardian ad litem has the definition found in section 30-2601;

(5) Isolation has the definition found in section 28-358.01;

(6) Resident means an adult resident of:

(a) A health care facility as defined in section 71-413; or

(b) Any home or other residential dwelling in which the resident is receiving care and services from any person;

(7) Visitation means an in-person meeting or any telephonic, written, or electronic communication; and

(8) Visitor means a person appointed pursuant to section 30-2619.01.

Source:Laws 2017, LB122, § 1; R.S.Supp.,2017, § 42-1301; Laws 2018, LB845, § 1.

30-702. Legislative intent.

It is the intent of the Legislature that, in order to allow family member petitioners to remain connected, a caregiver may not arbitrarily deny visitation to a family member petitioner of a resident, whether or not the caregiver is related to such family member petitioner, unless such action is authorized by a nursing home administrator pursuant to section 71-6021.

Source:Laws 2017, LB122, § 2; R.S.Supp.,2017, § 42-1302; Laws 2018, LB845, § 2.

30-703. Petition to compel visitation; court findings; factors.

(1) If a family member petitioner is being denied visitation with a resident, the family member petitioner may petition the county court to compel visitation with the resident. If a guardian has been appointed for the resident under the jurisdiction of a county court, the petition shall be filed in the county court having such jurisdiction. If there is no such guardianship, the petition shall be filed in the county court for the county in which the resident resides. The court may not issue an order compelling visitation if the court finds any of the following:

(a) The resident, while having the capacity to evaluate and communicate decisions regarding visitation, expresses a desire to not have visitation with the family member petitioner; or

(b) Visitation between the family member petitioner and the resident is not in the best interests of the resident.

(2) In determining whether visitation between the family member petitioner and the resident has been arbitrarily denied, the court may consider factors including, but not limited to:

(a) The nature of relationship of the family member petitioner and the resident;

(b) The place where visitation rights will be exercised;

(d) The likely effect of visitation on the resident; and

(e) The likelihood of onerously disrupting established lifestyle of the resident.

Source:Laws 2018, LB845, § 3.

30-704. Emergency hearing; temporary orders.

If the petition filed pursuant to section 30-703 states that the resident's health is in significant decline or that the resident's death may be imminent, the court shall conduct an emergency hearing on the petition as soon as practicable and in no case later than ten days after the date the petition is served upon the resident and the caregiver. Each party to a contested proceeding for an emergency order relating to visitation under this section shall offer a verified information affidavit as an exhibit at the hearing before the court. If the allegations made under this section to request an emergency hearing are not made with probable cause, the court may order appropriate remedies under section 30-705. Temporary orders may be issued in the same manner as provided for guardianships. Temporary orders shall expire ninety days after the entry of the temporary order unless good cause is shown for continuation.

Source:Laws 2017, LB122, § 3; R.S.Supp.,2017, § 42-1303; Laws 2018, LB845, § 4.

30-705. Costs and attorney's fees; remedies.

(1) Upon a motion by a party or upon the court's own motion, if the court finds during a hearing pursuant to section 30-704 that a person is knowingly isolating the resident from visitation by a family member petitioner, the court may order such person to pay court costs and reasonable attorney’s fees of the family member petitioner and may order other appropriate remedies.

(2) No costs, fees, or other sanctions may be paid from the resident's finances or estate.

(3) If the court determines that the family member petitioner did not have probable cause for filing the petition, the court may order the family member petitioner to pay court costs and reasonable attorney’s fees of the other parties and may order other appropriate remedies.

(4) Remedies may include the payment of the fees and costs of a visitor or a guardian ad litem.

(5) An order may be entered prohibiting the family member petitioner from filing another petition under sections 30-701 to 30-713 in any court in this state for any period of time determined appropriate by the court for up to one year.

Source:Laws 2017, LB122, § 4; R.S.Supp.,2017, § 42-1304; Laws 2018, LB845, § 5.

30-706. Petition; contents; confidential; stay; when.

(1) Any action under sections 30-701 to 30-713 shall be commenced by filing in the county court a verified petition described in section 30-703. The family member petitioner shall include, if reasonably ascertainable under oath, the places where the resident has resided and the names and present addresses of the persons with whom the resident has lived during the previous five years. The petition shall include a statement under oath identifying whether:

(a) The family member petitioner has participated as a party, as a witness, or in any other capacity or in any other proceeding concerning custody or visitation with the resident and if so, identify the court, the case number, and the date of any order which may affect visitation;

(b) The family member petitioner knows of any proceeding that could affect the current proceeding relating to domestic violence, a protective order, termination of parental rights, adoption, guardianship, conservatorship, or habeas corpus or any other civil or criminal proceeding, and if so, identify the court, the case number, and the date of any order which may affect visitation;

(c) The family member petitioner knows the name and address of any person not a party to the proceeding who has physical custody of, is residing with, or is providing residential services to the resident and if so, the name and address of such person;

(d) The resident needs a guardian ad litem or a visitor appointed;

(e) Any other state would have jurisdiction under the Nebraska Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act;

(f) A bond or probation condition exists which would affect the case; and

(g) The family member petitioner has filed petitions under section 30-703 within the preceding five years and if so, the court, the case number, and the date of any order resolving the prior petitions.

(2) Any matters which may be confidential under court rule or statute shall be filed as a confidential document for review by the court as to whether such matters shall remain filed as confidential matters.

(3) If the information required by subsection (1) of this section is not furnished, the court, upon the motion of a party or its own motion, may stay the proceeding until the information is furnished.

Source:Laws 2018, LB845, § 6.

Cross References

Nebraska Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, see section 30-3901.

30-707. Simultaneous proceedings; how treated.

Any proceeding involving a guardianship, conservatorship, power of attorney for health care decisions, or power of attorney granted by the resident may continue in the trial court while an appeal is pending from an order granted under sections 30-701 to 30-713.

Source:Laws 2018, LB845, § 7.

30-708. Appointment of guardian ad litem or visitor.

At any point in a proceeding under sections 30-701 to 30-713, the court may appoint a guardian ad litem or a visitor.

Source:Laws 2018, LB845, § 8.

30-709. Jurisdiction; venue; court rules; notice; appeal; retention of jurisdiction.

(1) Jurisdiction under sections 30-701 to 30-713 applies to any resident who is in this state or for whom the provisions of the Nebraska Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act vests authority over such resident in the courts of this state in a guardianship.

(2) Venue shall be determined pursuant to sections 30-703 and 30-2212.

(3) The Supreme Court shall have the authority pursuant to section 30-2213 to establish rules to carry into effect the provisions of sections 30-701 to 30-713.

(4) The notice provisions of section 30-2220 shall apply to a proceeding under sections 30-701 to 30-713.

(5) When final orders relating to proceedings under sections 30-701 to 30-713 are on appeal and such appeal is pending, the court that issued such orders shall retain jurisdiction to provide for such orders regarding visitation or other access or to prevent irreparable harm during the pendency of such appeal or other appropriate orders in aid of the appeal process. Such orders shall not be construed to prejudice any party on appeal.

Source:Laws 2018, LB845, § 9.

Cross References

Nebraska Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, see section 30-3901.

30-710. Order; appeal.

Any order that is not intended as interlocutory or temporary under sections 30-701 to 30-713 shall be a final, appealable order. Such order may be appealed to the Court of Appeals in the same manner as an appeal from the district court directly to the Court of Appeals. The Court of Appeals shall conduct its review in an expedited manner and shall render its judgment and write its opinion, if any, as speedily as possible. The court may modify an existing order granting such visitation upon a showing that there has been a material change in circumstances which justifies such modification and that the modification would serve the best interests of the resident.

Source:Laws 2018, LB845, § 10.

30-711. Court; examine evidence; issue discovery orders.

In a proceeding under sections 30-701 to 30-713, the court may examine any medical evidence in camera or issue any protective discovery orders needed to comply with the provisions of the federal Health Insurance Portability and Accountability Act of 1996, any regulations promulgated under such federal act, or any other provision of law.

Source:Laws 2018, LB845, § 11.

30-712. Visitation schedule; civil contempt; remedies.

If the court enters a visitation order in a proceeding under sections 30-701 to 30-713, it may set out a visitation schedule including the time, place, and manner of visitation. Failure to comply with the order may be the subject of a civil contempt proceeding and may be subject to remedies under section 30-705. The court may provide for an expiration date or a review date in its order, and such a provision does not affect the appealability of an order under section 30-710.

Source:Laws 2018, LB845, § 12.

30-713. Burden of proof.

In a proceeding under sections 30-701 to 30-712, the burden of proof is upon the family member petitioner to establish his or her case by a preponderance of the evidence.

Source:Laws 2018, LB845, § 13.

30-801. Repealed. Laws 1974, LB 354, § 316.

30-802. Repealed. Laws 1974, LB 354, § 316.

30-803. Repealed. Laws 1974, LB 354, § 316.

30-804. Repealed. Laws 1974, LB 354, § 316.

30-805. Repealed. Laws 1974, LB 354, § 316.

30-806. Repealed. Laws 1974, LB 354, § 316.

30-807. Repealed. Laws 1974, LB 354, § 316.

30-808. Repealed. Laws 1974, LB 354, § 316.

30-809. Wrongful death; action authorized.

(1) Whenever the death of a person, including an unborn child in utero at any stage of gestation, is caused by the wrongful act, neglect, or default of any person, company, or corporation, and the act, neglect, or default is such as would, if death had not ensued, have entitled the person injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or company or corporation which, would have been liable if death had not ensued, is liable in an action for damages, notwithstanding the death of the person injured, and although the death was caused under such circumstances as amount in law to felony.

(2) No action for damages for the death of a person who is an unborn child shall be brought under this section against:

(a) The mother of the unborn child;

(b) A physician or other licensed health care provider if the death was the intended result of a medical procedure performed by the physician or health care provider and the requisite consent was given; or

(c) A person who dispenses or administers a drug or device in accordance with law if the death was the intended result of the dispensation or administration of the drug or device.

Source:G.S.1873, c. 15, § 1, p. 272; R.S.1913, § 1428; C.S.1922, § 1382; C.S.1929, § 30-809; R.S.1943, § 30-809; Laws 2003, LB 294, § 1.

Annotations

1. Joinder of actions

2. By whom brought

3. No liability

4. Damages

5. Evidence

6. Negligence

7. Miscellaneous

1. Joinder of actions

Action for pain and suffering may be revived and joined with action for wrongful death in same proceeding. Rasmussen v. Benson, 133 Neb. 449, 275 N.W. 674 (1937), affirmed on rehearing, 135 Neb. 232, 280 N.W. 890 (1938).

Action for wrongful death and action for pain and suffering sustained by deceased may be pursued in different suits or joined in one suit and separate verdicts returned. Hindmarsh v. Sulpho Saline Bath Co., 108 Neb. 168, 187 N.W. 806 (1922).

2. By whom brought

Wrongful death statutes create a cause of action unknown at common law, but that cause of action is for the exclusive benefit of the decedent's next of kin. Rhein v. Caterpillar Tractor Co., 210 Neb. 321, 314 N.W.2d 19 (1982).

The personal representative of a deceased wife could maintain a wrongful death action against the personal representative of her deceased husband based upon the alleged negligence of the deceased husband. Imig v. March, 203 Neb. 537, 279 N.W.2d 382 (1979).

An action for wrongful death of stillborn fetus may not be maintained hereunder. Egbert v. Wenzl, 199 Neb. 573, 260 N.W.2d 480 (1977); Drabbels v. Skelly Oil Co., 155 Neb. 17, 50 N.W.2d 229 (1951).

Coadministrators of deceased's estate entitled to file wrongful death claim in the estate of alleged tort-feasor. Gilbert v. Vogler, 197 Neb. 454, 249 N.W.2d 729 (1977).

An employer can bring an action directly against a third party tort-feasor for injuries suffered by an employee, but only a personal representative of a deceased employee can bring an action for wrongful death, which action must be filed within two years after death. United Materials, Inc. v. Landreth, 196 Neb. 525, 244 N.W.2d 164 (1976).

Where as administrator of wife's estate, widower brought action for wrongful death and was unsuccessful, he was not barred under doctrines of res judicata or issue preclusion from prosecuting action for his own personal injuries and damages suffered in same collision. Hickman v. Southwest Dairy Suppliers, Inc., 194 Neb. 17, 230 N.W.2d 99 (1975).

Action to recover damages sustained by surviving spouse and next of kin of decedent is authorized. Wieck v. Blessin, 165 Neb. 282, 85 N.W.2d 628 (1957).

Action for wrongful death requires that it be brought by the personal representative of the deceased for the exclusive benefit of the widow or widower and next of kin. Bush v. James, 152 Neb. 189, 40 N.W.2d 667 (1950).

Action for damages commenced by administrator after death of his intestate, for pain and suffering inflicted upon the deceased, is maintainable. Wilfong v. Omaha & C. B. St. Ry. Co., 129 Neb. 600, 262 N.W. 537 (1935).

Action for employee's death must be brought by personal representative, and provision of Workmen's Compensation Act regarding employer's interest merely relates to distribution of proceeds of sale. Goeres v. Goeres, 124 Neb. 720, 248 N.W. 75 (1933); Luckey v. Union Pacific Ry. Co., 117 Neb. 85, 219 N.W. 802 (1928).

Action against county for damages for wrongful death must be brought in the name of the administrator. Swift v. Sarpy County, 102 Neb. 378, 167 N.W. 458 (1918).

Parent may recover for loss of expected services of children not only during minority but afterwards. Draper v. Tucker, 69 Neb. 434, 95 N.W. 1026 (1903).

A person sued by administrator for wrongful death is not thereby given a sufficient interest to petition county court for removal of administrator. Missouri P. Ry. Co. v. Jay, 53 Neb. 747, 74 N.W. 259 (1898).

Conservator domiciled in Colorado who undertook no duties or obligations with respect to beneficiary domiciled in Nebraska, except to file suit for beneficiary's injury in accident in Nebraska, could not sue in federal court on basis of diversity of citizenship. Rogers v. Bates, 431 F.2d 16 (8th Cir. 1970).

A wrongful death action must be maintained by the legal representative of the deceased. Russell v. New Amsterdam Casualty Co., 303 F.2d 674 (8th Cir. 1962).

Action for wrongful death was properly brought in federal court on the basis of diversity of citizenship even though plaintiff had been appointed administratrix by Nebraska court. Janzen v. Goos, 302 F.2d 421 (8th Cir. 1962).

Action under Lord Campbell's Act must be brought within two years after death of deceased. McDonnell v. Wasenmiller, 74 F.2d 320 (8th Cir. 1934).

3. No liability

County was not liable for wrongful death due to latent defect in bridge. Wittwer v. County of Richardson, 153 Neb. 200, 43 N.W.2d 505 (1950).

In action for wrongful death by wife of deceased, settlement made by administrator of estate, with acquiescence of wife, barred recovery. Boell v. Overbaugh, 141 Neb. 264, 3 N.W.2d 439 (1942).

Streetcar company was not liable for wrongful death of person injured in collision who committed suicide knowing purpose and effect of his act. Long v. Omaha & C. B. St. Ry. Co., 108 Neb. 342, 187 N.W. 930 (1922).

Charitable institutions are not liable for negligence or neglect of nurses, even though compensated. Duncan v. Nebraska Sanitarium & Benevolent Assn., 92 Neb. 162, 137 N.W. 1120 (1912).

Railway company is not liable for injuries caused by a team taking fright at the ordinary operation of trains. Hendricks v. Fremont, E. & M. V. R. R. Co., 67 Neb. 120, 93 N.W. 141 (1903).

Whatever would have been a defense had the deceased survived and brought suit is a defense in an action brought by the administrator of his estate. Seyfer v. Otoe County, 66 Neb. 566, 92 N.W. 756 (1902).

Where railroad company had paid judgment for damages for wrongful death, beneficiary under contract with relief department of railroad could not recover on certificate. Oyster v. Burlington Relief Dept. of Chicago, B. & Q. R. R. Co., 65 Neb. 789, 91 N.W. 699 (1902).

In action for wrongful death arising from use of defective material in building, owner was not liable where proximate cause of injury was a fire which caused wall to fall. Downs v. Kitchen, 53 Neb. 423, 73 N.W. 945 (1898); Kitchen v. Carter, 47 Neb. 776, 66 N.W. 855 (1896).

City is not liable for death in pond on private property, not in proximity to streets or alleys. City of Omaha v. Bowman, 52 Neb. 293, 72 N.W. 316 (1897).

Owner of building was not liable for death by falling walls caused by severe storm. Olsen v. Meyer, 46 Neb. 240, 64 N.W. 954 (1895).

Owner of vacant lot allowing pond of water to accumulate, is not liable for death of person drowned. Richards v. Connell, 45 Neb. 467, 63 N.W. 915 (1895).

A servant assumes risk by continued use of defective machinery; it is the duty of master to furnish appliances that are reasonably safe and fit for performance of work. Missouri P. Ry. Co. v. Baxter, 42 Neb. 793, 60 N.W. 1044 (1894).

4. Damages

The loss contemplated by the wrongful death statute is a pecuniary loss, and damages on account of mental suffering or bereavement or as a solace to the next of kin on account of the death are not recoverable, as neither are damages for mental anguish suffered by the decedent prior to his death. Nelson v. Dolan, 230 Neb. 848, 434 N.W.2d 25 (1989).

Measure of damages for wrongful death of minor child includes loss of society, comfort, and companionship. Overrules prior decisions in conflict. Selders v. Armentrout, 190 Neb. 275, 207 N.W.2d 686 (1973).

Medical and funeral expenses resulting from wrongful death may be recovered when beneficiaries have paid or have become legally obligated to pay same. State Farm Mut. Auto. Ins. Co. v. Selders, 187 Neb. 342, 190 N.W.2d 789 (1971); Kroeger v. Safranek, 161 Neb. 182, 72 N.W.2d 831 (1955); Shields v. County of Buffalo, 161 Neb. 34, 71 N.W.2d 701 (1955).

Verdict in action for wrongful death was not excessive. Langford v. Ritz Taxicab Co., 172 Neb. 153, 109 N.W.2d 120 (1961).

Evidence was sufficient to sustain judgment for five thousand five hundred dollars on account of wrongful death arising out of automobile collision. Moslander v. Carroll, 140 Neb. 358, 299 N.W. 479 (1941).

Pecuniary loss is presumed to exist in favor of party legally entitled to service or support of person killed by wrongful or negligent act of another. Killion v. Dinklage, 121 Neb. 322, 236 N.W. 757 (1931).

Verdict in favor of plaintiff for twenty thousand dollars was excessive. Hoffman v. Chicago & N. W. Ry. Co., 91 Neb. 783, 137 N.W. 878 (1912).

In ascertaining the amount of damages, evidence of circumstances of the decedent, age and condition of the family is considered. Crabtree v. Missouri P. Ry. Co., 86 Neb. 33, 124 N.W. 932 (1910).

Table of expectancy is not true measure of life where deceased had, prior to injury sued on, received serious injuries. Davis v. Borland, 83 Neb. 281, 119 N.W. 454 (1909).

Value of services which next of kin could expect deceased to earn, and expectancy of life may be shown. Missouri P. Ry. v. Baier, 37 Neb. 235, 55 N.W. 913 (1893).

"Damages" are such sum as will compensate next of kin for pecuniary loss sustained. Anderson v. Chicago, B. & Q. R. Co., 35 Neb. 95, 52 N.W. 840 (1892).

A parent cannot recover damages for mental distress and physical injury resulting from witnessing the suffering of his child caused by negligence of physicians and hospital personnel. Owens v. Childrens Memorial Hospital, 480 F.2d 465 (8th Cir. 1973).

Deceased's beneficiaries cannot recover for their mental suffering, pain, anguish, and loss of companionship. Owens v. Childrens Memorial Hospital, 347 F.Supp. 663 (D. Neb. 1972).

5. Evidence

Presumption obtains that person killed was in the exercise of due care. Bailey v. Spindler, 161 Neb. 563, 74 N.W.2d 344 (1956).

In action brought under this section, admission of evidence that school teachers were needed and what salary scale of teachers was constituted error. Piechota v. Rapp, 148 Neb. 442, 27 N.W.2d 682 (1947).

In action for wrongful death, admission of defendant's testimony on coroner's inquest was not error. Smoke v. Carter, 105 Neb. 520, 181 N.W. 526 (1921).

Contributory negligence and presumption discussed. Armstrong v. Union Stock Yards Co., 93 Neb. 258, 140 N.W. 158 (1913).

Contributory negligence is not proximate cause of injury if defendant could by reasonable care, have avoided injury after seeing position of deceased. Zelenka v. Union Stock Yards Co., 82 Neb. 511, 118 N.W. 103 (1908).

Presumption is that one killed or injured was exercising ordinary care; burden of establishing assumption of risk is on master. Grimm v. Omaha Electric Light & Power Co., 79 Neb. 395, 114 N.W. 769 (1908).

In action for wrongful death of employee, declarations of engineer made at time of accident were admissible in evidence. Union P. R. R. Co. v. Edmondson, 77 Neb. 682, 110 N.W. 650 (1906).

Presumption that next of kin were alive at date of verdict is raised by their deposition given five years prior thereto. Chicago, R. I. & P. Ry. Co. v. Young, 67 Neb. 568, 93 N.W. 922 (1903).

Evidence was insufficient to show negligence. Nelson v. Swift & Co., 55 Neb. 598, 75 N.W. 1107 (1898); Union P. Ry. Co. v. Clark, 51 Neb. 220, 70 N.W. 923 (1897).

Claim for damages is not an asset of the estate; "Carlisle Tables" of expectancy are admissible. City of Friend v. Burleigh, 53 Neb. 674, 74 N.W. 50 (1898).

"Carlisle Tables" of expectancy are admissible in evidence. Value of estate of decedent cannot be shown. Chicago, R. I. & P. Ry. Co. v. Hambel, 2 Neb. Unof. 607, 89 N.W. 643 (1902).

Witnesses who were acquainted with deceased, and knew his earning capacity, for years prior, may testify thereto. Chicago, R. I. & P. Ry. Co. v. Sizer, 1 Neb. Unof. 32, 95 N.W. 498 (1901).

In action for wrongful death, negligence could be proved by circumstantial evidence. National Alfalfa Dehydrating & Mill. Co. v. Sorensen, 220 F.2d 858 (8th Cir. 1955).

6. Negligence

Plaintiff must show that death was caused by some negligent act attributable to the defendant. Britton v. Samuelson, 147 Neb. 318, 23 N.W.2d 267 (1946).

It is the duty of the master to warn servant of hazards of employment. Central Granaries Co. v. Ault, 75 Neb. 249, 106 N.W. 418 (1905), modified on rehearing, 75 Neb. 249, 107 N.W. 1015 (1905); Dehning v. Detroit Bridge & Iron Works, 46 Neb. 556, 65 N.W. 186 (1895).

One, by negligently exposing himself to known danger, does not assume responsibility for unknown and undiscovered dangers. Holmes v. Chicago, R. I. & P. Ry. Co., 73 Neb. 489, 103 N.W. 77 (1905).

Where different conclusions may be drawn from conduct on which negligence is predicated, such question is for jury, not for court. McLean v. Omaha & C. B. Ry. & B. Co., 72 Neb. 447, 100 N.W. 935 (1904), affirmed on rehearing 72 Neb. 450, 103 N.W. 285 (1905).

Master in bridling a horse and allowing servant to control it with halter, resulting in death, was not negligent. Fifer v. Burch, 68 Neb. 217, 94 N.W. 107 (1903).

In this class of cases presumption is that deceased was injured by carrier's negligence. Chicago, R. I. & P. Ry. Co. v. Young, 58 Neb. 678, 79 N.W. 556 (1899).

Assumption of risk, and contributory negligence, was discussed. Dailey v. Burlington & M. R. R. R. Co., 58 Neb. 396, 78 N.W. 722 (1899).

Liability of railway for injuries to stockmen traveling on passes is that of a common carrier for hire. Missouri P. Ry. Co. v. Tietken, 49 Neb. 130, 68 N.W. 336 (1896).

Street railway companies must exercise the highest degree of care in regard to safety of passengers in operating their cars. Omaha & C. B. Ry. & B. Co. v. Levinston, 49 Neb. 17, 67 N.W. 887 (1896).

Plaintiff must show and prove that negligence complained of was the proximate cause of death. Brotherton v. Manhattan Beach Imp. Co., 48 Neb. 563, 67 N.W. 479 (1896), affirmed on rehearing 50 Neb. 214, 69 N.W. 757 (1897).

In action for wrongful death to passenger on railroad, there is a presumption of negligence. Chicago, B. & Q. R. R. Co. v. Hague, 48 Neb. 97, 66 N.W. 1000 (1896).

If plaintiff proves his case without disclosing negligence of intestate, burden of proof is on defendant to show contributory negligence. Anderson v. Chicago, B. & Q. R. Co., 35 Neb. 95, 52 N.W. 840 (1892).

Where common sense would have been sufficient to have warned plaintiff of danger, question of whether he was negligent is for the court. Chicago, B. & Q. R. R. Co. v. Lilley, 4 Neb. Unof. 286, 93 N.W. 1012 (1903).

7. Miscellaneous

This section is intended to authorize an action to recover damages from a tort-feasor for negligence or some other action resulting in the death of another person. Olsen v. Farm Bureau Ins. Co. of Nebraska, 259 Neb. 329, 609 N.W.2d 664 (2000).

This section creates a new cause of action unknown at the common law. Mabe v. Gross, 167 Neb. 593, 94 N.W.2d 12 (1959); Murray v. Omaha Transfer Co., 95 Neb. 175, 145 N.W. 360 (1914), 7 A.L.R. 1343 (1914).

Insofar as disbursements provided by this section are inconsistent with Workmen's Compensation Act, the latter act controls. Bronder v. Otis Elevator Co., 121 Neb. 581, 237 N.W. 671 (1931).

In action for wrongful death, negligence of taxicab driver in which deceased was riding was no defense. Koehn v. City of Hastings, 114 Neb. 106, 206 N.W. 19 (1925).

Personal representative of decedent is not precluded by judgment against carrier under federal Employers' Liability Act for benefit of widow from maintaining later action against joint tort-feasor as provided herein for benefit of another. Moore v. Omaha Warehouse Co., 106 Neb. 116, 182 N.W. 597 (1921).

Receipt of benefits by widow under contract of membership in relief department of railroad would not bar action by her as administratrix for wrongful death. Chicago, B. & Q. Ry. Co. v. Healy, 76 Neb. 783, 107 N.W. 1005 (1906), affirmed on rehearing 76 Neb. 786, 111 N.W. 598 (1907), overruling Walters v. Chicago, B. & Q. Ry. Co., 74 Neb. 551, 104 N.W. 1066 (1905).

Electric companies owe a duty toward the public, individuals and employees in regard to its charged wires. New Omaha Thompson-Houston Electric Light Co. v. Rombold, 68 Neb. 54, 93 N.W. 966 (1903), reversed on rehearing New Omaha Thompson-Houston Electric Light Co. v. Rombold, 68 Neb. 71, 97 N.W. 1030 (1904); New Omaha Thomson-Houston Electric Light Co. v. Johnson, 67 Neb. 393, 93 N.W. 778 (1903).

Act creating cause of action for wrongful death is not amendatory of or in conflict with act providing for suits by passengers injured or killed as result of negligence of railroad. Chicago, R. I. & P. Ry. Co. v. Zernecke, 59 Neb. 689, 82 N.W. 26 (1900).

Rules of company are not binding unless employee had actual notice. Chicago, B. & Q. R. R. Co. v. Oyster, 58 Neb. 1, 78 N.W. 359 (1899).

Courts will not give this section a narrow or technical construction. Kearney Electric Co. v. Laughlin, 45 Neb. 390, 63 N.W. 941 (1895).

It is no defense that decedent was killed while working for defendant on Sunday. Johnson v. Missouri P. Ry. Co., 18 Neb. 690, 26 N.W. 347 (1886).

A wrongful death action and a survival action are two distinct causes of action which may be brought by a decedent's personal representative. Although they are frequently joined in a single action, they are conceptually separate. In re Estate of McConnell, 28 Neb. App. 303, 943 N.W.2d 722 (2020).

Under certain circumstances, a breach of the terms of an insurance policy by the insurer can be a tort, and recovery can be had for such tort under the wrongful death statute. Weatherly v. Blue Cross Blue Shield, 2 Neb. App. 669, 513 N.W.2d 347 (1994).

30-810. Action for wrongful death; limitation; in whose name brought; judgment; disposition of avails; compromise of claim; procedure.

Every such action, as described in section 30-809, shall be commenced within two years after the death of such person. It shall be brought by and in the name of the person's personal representative for the exclusive benefit of the widow or widower and next of kin. The verdict or judgment should be for the amount of damages which the persons in whose behalf the action is brought have sustained. The avails thereof shall be paid to and distributed among the widow or widower and next of kin in the proportion that the pecuniary loss suffered by each bears to the total pecuniary loss suffered by all such persons. A personal representative shall not compromise or settle a claim for damages hereunder until the court by which he or she was appointed shall first have consented to and approved the terms thereof. The amount so received in settlement or recovered by judgment shall be reported to and, if so ordered, paid into such court for distribution, subject to the order of such court, to the persons entitled thereto after a hearing thereon and after notice of such hearing and of the time and place thereof has been given to all persons interested by publication three successive weeks in a legal newspaper published within the county or, if no legal newspaper is published within the county, then in a legal newspaper published in an adjoining county, except that the court for good cause shown may provide for a different method or time of giving notice and a person, including a guardian ad litem, conservator, or other fiduciary, may waive notice or any other requirement for the mailing or receipt of instruments by a writing signed by him or her and filed in the proceeding. Such amount shall not be subject to any claims against the estate of such decedent. When the amount of such settlement or judgment is ordered to be paid into the court and is five thousand dollars or more, the county court shall forthwith upon such settlement or payment of such judgment place such amount in interest-bearing certificates of deposit or a savings account in a banking institution pending the entry of an order of distribution by the court, and such interest that may accumulate pending the entry of such order shall be distributed in the same proportions as the settlement or judgment. The hearing to approve the terms of the compromise or settlement and the hearing for distribution of the amount so received in settlement or recovered by judgment may be combined into one hearing.

Source:G.S.1873, c. 15, § 2, p. 273; Laws 1907, c. 47, § 1, p. 190; R.S.1913, § 1429; Laws 1919, c. 92, § 1, p. 235; C.S.1922, § 1383; C.S.1929, § 30-810; Laws 1937, c. 75, § 1, p. 264; C.S.Supp.,1941, § 30-810; R.S.1943, § 30-810; Laws 1945, c. 66, § 1, p. 263; Laws 1971, LB 441, § 1; Laws 1990, LB 579, § 1.

Cross References

Mailing copy of published notice to parties required, see section 25-520.01 et seq.

Annotations

1. Petition

2. Damages

3. Action by personal representative

4. Procedure

5. Disposition of avails

6. Miscellaneous

1. Petition

Petition must allege facts showing pecuniary loss to next of kin. Union Pac. R. Co. v. Roeser, 69 Neb. 62, 95 N.W. 68 (1903); Tucker v. Draper, 62 Neb. 66, 86 N.W. 917 (1901); Chicago, B. & Q. R. Co. v. Bond, 58 Neb. 385, 78 N.W. 710 (1899); Chicago, B. & Q. R. Co. v. Van Buskirk, 58 Neb. 252, 78 N.W. 514 (1899).

Petition may be amended regarding special particulars of pecuniary loss, notwithstanding statutory period for commencing action has expired. Chicago, R. I. & P. Ry. Co. v. Young, 67 Neb. 568, 93 N.W. 922 (1903).

Petition is sufficient if it names children dependent upon deceased, even if it omits widow. Chicago, B. & Q. R. Co. v. Oyster, 58 Neb. 1, 78 N.W. 359 (1899).

Petition alleging that deceased left widow and minor children is sufficient to raise a presumption of pecuniary loss. Omaha & R. V. Ry. Co. v. Crow, 54 Neb. 747, 74 N.W. 1066 (1898).

Petition averring that defendant's acts caused death of deceased, that he left a widow and children and that plaintiff is his administrator, is sufficient. City of Friend v. Burleigh, 53 Neb. 674, 74 N.W. 50 (1898).

2. Damages

There is no requirement in a wrongful death case that there be evidence of the dollar value of companionship, counseling, or advice. Maloney v. Kaminski, 220 Neb. 55, 368 N.W.2d 447 (1985).

Where evidence is clear that only person in class for which action may be brought hereunder is guilty of negligence more than slight as a matter of law, verdict should be directed for defendant. Weber v. Southwest Nebraska Dairy Suppliers, Inc., 187 Neb. 606, 193 N.W.2d 274 (1971).

In an action for wrongful death, the measure of damage is the pecuniary loss to the statutory beneficiaries. Darnell v. Panhandle Coop. Assn., 175 Neb. 40, 120 N.W.2d 278 (1963).

Supreme Court will not interfere with amount of verdict and judgment unless clearly wrong. Langford v. Ritz Taxicab Co., 172 Neb. 153, 109 N.W.2d 120 (1961).

Where surviving spouse is sole beneficiary, his contributory negligence may bar recovery. Wieck v. Blessin, 165 Neb. 282, 85 N.W.2d 628 (1957).

Situations may exist where recovery may be had for probable contributions after child has attained majority. Bailey v. Spindler, 161 Neb. 563, 74 N.W.2d 344 (1956).

While damages are limited to pecuniary loss of certain designated persons, distribution is made in the same proportions as personal property. Tate v. Barry, 144 Neb. 517, 13 N.W.2d 879 (1944).

Action for damages commenced by administrator after death of his intestate, for pain and suffering inflicted upon the deceased is maintainable. Wilfong v. Omaha & C. B. St. Ry. Co., 129 Neb. 600, 262 N.W. 537 (1935).

Parent can recover funeral expenses incurred for an unmarried minor child whose death was caused by defendant's negligence. Killion v. Dinklage, 121 Neb. 322, 236 N.W. 757 (1931).

Damages are measured by pecuniary loss sustained by survivors by being deprived of what they would have received from the earnings of injured party had he lived out his expectancy. Hindmarsh v. Sulpho Saline Bath Co., 108 Neb. 168, 187 N.W. 806 (1922).

On death of a child, a parent may recover for the loss of expected services not only during minority, but afterwards, on evidence justifying a reasonable expectation of pecuniary benefit. Draper v. Tucker, 69 Neb. 434, 95 N.W. 1026 (1903).

The fact that wife remarried and obtained a new source of income does not affect amount of recovery of pecuniary loss suffered by death of first husband. Chicago, St. P., M. & O. Ry. Co. v. Lagerkrans, 65 Neb. 566, 91 N.W. 358 (1902), affirmed on rehearing, 65 Neb. 580, 95 N.W. 2 (1903).

Evidence that next of kin were poor and deceased was earning good wages was sufficient to show pecuniary loss, even though proof of contributions to next of kin was not shown. Post v. Olmsted, 47 Neb. 893, 66 N.W. 828 (1896).

The next of kin may recover in a wrongful death action only those losses sustained after the injured party's death by reason of being deprived of what the next of kin would have received from the injured party from the date of his or her death, had he or she lived out a full life expectancy. In re Estate of McConnell, 28 Neb. App. 303, 943 N.W.2d 722 (2020).

The pecuniary value of the loss of the decedent's support, society, comfort, and companionship does not require evidence of the dollar value; that is a matter left to the sound discretion of the fact finder. In re Estate of McConnell, 28 Neb. App. 303, 943 N.W.2d 722 (2020).

Where a husband and a wife had no meaningful relationship at the time of the husband's death and a divorce was pending, the wife was not entitled to recover in a wrongful death action based on the loss of her deceased husband's society, love, affection, care, attention, companionship, comfort, or protection. In re Estate of McConnell, 28 Neb. App. 303, 943 N.W.2d 722 (2020).

Relatives absent from a decedent's life may suffer little, or no, pecuniary loss from the death and not be entitled to share in the damages recovered for a wrongful death. In re Estate of Brown-Elliott, 27 Neb. App. 196, 930 N.W.2d 51 (2019).

3. Action by personal representative

The use of the word "shall" in this section precludes anyone but the personal representative from bringing an action for wrongful death. A wrongful death cause of action cannot be assigned. Spradlin v. Dairyland Ins. Co., 263 Neb. 688, 641 N.W.2d 634 (2002).

Mother of child born out of wedlock is next of kin and may bring action for wrongful death of child. Piechota v. Rapp, 148 Neb. 442, 27 N.W.2d 682 (1947).

Right of action under the federal act and state statute is vested in the personal representative of deceased, but differing in each case as to the beneficiaries. Moore v. Omaha Warehouse Co., 106 Neb. 116, 182 N.W. 597 (1921).

Action must be brought by personal representative of deceased. Swift v. Sarpy County, 102 Neb. 378, 167 N.W. 458 (1918); Butera v. Mardis Co., 99 Neb. 815, 157 N.W. 1024 (1916); Murphy v. Willow Springs Brewing Co., 81 Neb. 219, 115 N.W. 763 (1908).

The legal representatives have a right of action in all cases wherein decedent might have maintained action had he lived. Chicago, R. I. & P. Ry. Co. v. Young, 58 Neb. 678, 79 N.W. 556 (1899).

Cause of action for death of decedent constituted an estate sufficient for granting administration. Missouri P. Ry. Co. v. Bradley, 51 Neb. 596, 71 N.W. 283 (1897).

Action against county for death caused by defective highway must be brought in name of administrator. Sarpy County v. Galvin, 251 F. 888 (8th Cir. 1918).

4. Procedure

Relation back of amendments to pleadings in actions for wrongful death are permitted to the same extent that relation back operates with respect to amendments made to pleadings in other causes of action. Genthon v. Kratville, 270 Neb. 74, 701 N.W.2d 334 (2005).

Decedent's daughter who was born out of wedlock was entitled to recover in case brought under wrongful death act. Millman v. County of Butler, 244 Neb. 125, 504 N.W.2d 820 (1993).

In an action for wrongful death of a child, "money value" of parental loss is not limited to, always equated with, or necessarily dependent on deprivation of the child's monetary contribution toward parental well-being. Williams v. Monarch Transp., 238 Neb. 354, 470 N.W.2d 751 (1991).

Fraudulent concealment, if proven by a plaintiff, estops the defendant from asserting the statute of limitations as a defense to a plaintiff's wrongful death action under this section. Muller v. Thaut, 230 Neb. 244, 430 N.W.2d 884 (1988).

The 2-year limitation in this section is a statute of limitations. Muller v. Thaut, 230 Neb. 244, 430 N.W.2d 884 (1988).

Instruction submitted respecting requirement of bringing action for exclusive benefit of widow and next of kin was subject to criticism but was not prejudicially erroneous. Bush v. James, 152 Neb. 189, 40 N.W.2d 667 (1950).

In action for wrongful death, settlement made by administrator was binding on husband of deceased wife. Boell v. Overbaugh, 141 Neb. 264, 3 N.W.2d 439 (1942).

Allowance of amendment to petition introducing new cause of action, barred by limitations, was error. Emel v. Standard Oil Co., 117 Neb. 418, 220 N.W. 685 (1928).

Civil liability of third person for negligently causing death of another was not changed by Workmen's Compensation Act. Luckey v. Union Pac. R. Co., 117 Neb. 85, 219 N.W. 802 (1928).

Limitation imposed is independent of general statute of limitations. Gengo v. Mardis, 103 Neb. 164, 170 N.W. 841 (1919).

Action under Lord Campbell's Act must be brought within two years after death of deceased. McDonnell v. Wasenmiller, 74 F.2d 320 (8th Cir. 1934).

Where action was brought by railroad employee for wrongful death, special section applying to actions by railroad employees was applicable and not this section. Jackson v. Chicago, R. I. & P. Ry. Co., 178 F. 432 (8th Cir. 1910).

5. Disposition of avails

When proceeds of wrongful death settlement are placed in trust by court order for later benefit of surviving children otherwise eligible for AFDC payments, Department of Public Welfare may not deny assistance pending proceedings to make such funds available for present needs of children. Godden v. Department of Public Welfare, 193 Neb. 269, 226 N.W.2d 627 (1975).

Next of kin means the class of persons nearest in degree of blood surviving the deceased. Mabe v. Gross, 167 Neb. 593, 94 N.W.2d 12 (1959).

It is a function of the district court to ascertain the amount to be distributed. Peetz v. Masek Auto Supply Co., 161 Neb. 588, 74 N.W.2d 474 (1956).

Damages recovered for wrongful death must be distributed among such relatives as suffer pecuniary loss from death. In re Lucht's Estate, 139 Neb. 139, 296 N.W. 749 (1941).

Provisions of Workmen's Compensation Act, where conflicting with this section, control distribution of proceeds of recovery for wrongful death. Goeres v. Goeres, 124 Neb. 720, 248 N.W. 75 (1933); Bronder v. Otis Elevator Co., 121 Neb. 581, 237 N.W. 671 (1931).

6. Miscellaneous

Because of the binding effect of a federal court judgment, Nebraska's wrongful death statute did not apply and the county court properly ordered distribution pursuant to the federal court judgment that applied North Carolina law. In re Estate of Helms, 302 Neb. 357, 923 N.W.2d 423 (2019).

This section confers exclusive jurisdiction to the county court to approve wrongful death settlements and discretionary jurisdiction to distribute the proceeds of wrongful death claims. The beneficiaries of a wrongful death action are not entitled to be parties to the wrongful death proceeds distribution proceedings. In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016).

This section is silent on subrogation. Accordingly, under section 48-118.04, proceedings for the fair and equitable distribution of wrongful death action proceeds subject to subrogation in workers' compensation cases must be brought in the district court. In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016).

This section is silent on wrongful death actions. Accordingly, under section 48-118.01, wrongful death actions must be brought in the district court. In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016).

This section does not govern the distribution of proceeds from a survival claim brought on behalf of the decedent's estate, which continued a decedent's cause of action for the decedent's injuries that occurred before death. In re Estate of Panec, 291 Neb. 46, 864 N.W.2d 219 (2015).

Under this section, the only possible purpose of an attorney-client agreement to pursue claims for wrongful death is to benefit those persons specifically designated as statutory beneficiaries. Perez v. Stern, 279 Neb. 187, 777 N.W.2d 545 (2010).

While this section includes a general statute of limitations applicable to wrongful death actions, section 44-2828 is a subsequently enacted special statute of limitations applicable to all personal injury and wrongful death actions against health care providers who have taken the necessary steps to qualify under the Nebraska Hospital-Medical Liability Act. Alegent Health Bergan Mercy Med. Ctr. v. Haworth, 260 Neb. 63, 615 N.W.2d 460 (2000).

A wrongful death action is brought on behalf of the widow or widower and next of kin for damages they have sustained as a result of the decedent's death. Such damages include the pecuniary value of the loss of the decedent's support, society, comfort, and companionship. In re Estate of McConnell, 28 Neb. App. 303, 943 N.W.2d 722 (2020).

The proceeds from a wrongful death action are not the property of a decedent's estate and are therefore not contemplated as a property right waived in a premarital agreement unless the language of the premarital agreement specifically waives such a right. In re Estate of McConnell, 28 Neb. App. 303, 943 N.W.2d 722 (2020).

A wrongful death action brought in the name of a 6-year-old child's mother, as representative of the child's estate, was brought for the exclusive benefit of the child's next of kin, and thus, the child's father, as next of kin and beneficiary of the child's estate, was properly included in the court's instruction to the jury regarding the allocation of percentages of contributory negligence, even though the father was not brought into the action either as a claimant within the meaning of the statute that governed the defense of contributory negligence or as a third-party defendant. Curtis v. States Family Practice, 20 Neb. App. 234, 823 N.W.2d 224 (2012).

30-901. Copersonal representatives, cotrustees, coguardians, or coconservators; authority to act.

On and after January 1, 2020, in any case in which copersonal representatives, cotrustees, coguardians, or coconservators have been appointed, unless specifically restricted in a will, a trust, or an order of appointment, such copersonal representatives, cotrustees, coguardians, or coconservators shall have the authority to act independently with respect to, and shall not be required to act in concert with respect to, banking transactions involving trust or estate assets.

Source:Laws 2019, LB55, § 2.

30-1001. Repealed. Laws 1974, LB 354, § 316.

30-1002. Repealed. Laws 1974, LB 354, § 316.

30-1003. Repealed. Laws 1974, LB 354, § 316.

30-1101. Repealed. Laws 1974, LB 354, § 316.

30-1102. Repealed. Laws 1974, LB 354, § 316.

30-1103. Repealed. Laws 1974, LB 354, § 316.

30-1104. Repealed. Laws 1974, LB 354, § 316.

30-1105. Repealed. Laws 1974, LB 354, § 316.

30-1106. Repealed. Laws 1974, LB 354, § 316.

30-1107. Repealed. Laws 1974, LB 354, § 316.

30-1108. Repealed. Laws 1974, LB 354, § 316.

30-1109. Repealed. Laws 1974, LB 354, § 316.

30-1110. Repealed. Laws 1974, LB 354, § 316.

30-1111. Repealed. Laws 1974, LB 354, § 316.

30-1112. Repealed. Laws 1974, LB 354, § 316.

30-1113. Repealed. Laws 1974, LB 354, § 316.

30-1114. Repealed. Laws 1974, LB 354, § 316.

30-1115. Repealed. Laws 1974, LB 354, § 316.

30-1116. Repealed. Laws 1974, LB 354, § 316.

30-1117. Repealed. Laws 1974, LB 354, § 316.

30-1118. Repealed. Laws 1974, LB 354, § 316.

30-1119. Repealed. Laws 1974, LB 354, § 316.

30-1120. Repealed. Laws 1974, LB 354, § 316.

30-1121. Repealed. Laws 1974, LB 354, § 316.

30-1122. Repealed. Laws 1974, LB 354, § 316.

30-1123. Repealed. Laws 1974, LB 354, § 316.

30-1124. Repealed. Laws 1974, LB 354, § 316.

30-1125. Repealed. Laws 1974, LB 354, § 316.

30-1126. Repealed. Laws 1974, LB 354, § 316.

30-1127. Repealed. Laws 1974, LB 354, § 316.

30-1128. Repealed. Laws 1974, LB 354, § 316.

30-1129. Repealed. Laws 1974, LB 354, § 316.

30-1130. Repealed. Laws 1974, LB 354, § 316.

30-1131. Repealed. Laws 1974, LB 354, § 316.

30-1132. Repealed. Laws 1974, LB 354, § 316.

30-1133. Repealed. Laws 1974, LB 354, § 316.

30-1134. Repealed. Laws 1974, LB 354, § 316.

30-1135. Repealed. Laws 1974, LB 354, § 316.

30-1136. Repealed. Laws 1974, LB 354, § 316.

30-1137. Repealed. Laws 1974, LB 354, § 316.

30-1138. Repealed. Laws 1974, LB 354, § 316.

30-1139. Repealed. Laws 1974, LB 354, § 316.

30-1140. Repealed. Laws 1974, LB 354, § 316.

30-1141. Repealed. Laws 1974, LB 354, § 316.

30-1142. Repealed. Laws 1974, LB 354, § 316.

30-1143. Repealed. Laws 1974, LB 354, § 316.

30-1144. Repealed. Laws 1974, LB 354, § 316.

30-1145. Repealed. Laws 1974, LB 354, § 316.

30-1201. Repealed. Laws 1974, LB 354, § 316.

30-1202. Repealed. Laws 1974, LB 354, § 316.

30-1203. Repealed. Laws 1974, LB 354, § 316.

30-1204. Repealed. Laws 1974, LB 354, § 316.

30-1205. Repealed. Laws 1974, LB 354, § 316.

30-1206. Repealed. Laws 1974, LB 354, § 316.

30-1207. Repealed. Laws 1974, LB 354, § 316.

30-1208. Repealed. Laws 1974, LB 354, § 316.

30-1301. Repealed. Laws 1974, LB 354, § 316.

30-1302. Repealed. Laws 1974, LB 354, § 316.

30-1303. Repealed. Laws 1974, LB 354, § 316.

30-1304. Repealed. Laws 1974, LB 354, § 316.

30-1305. Repealed. Laws 1974, LB 354, § 316.

30-1306. Repealed. Laws 1974, LB 354, § 316.

30-1307. Repealed. Laws 1974, LB 354, § 316.

30-1308. Repealed. Laws 1974, LB 354, § 316.

30-1401. Repealed. Laws 1974, LB 354, § 316.

30-1402. Repealed. Laws 1974, LB 354, § 316.

30-1403. Repealed. Laws 1974, LB 354, § 316.

30-1404. Repealed. Laws 1974, LB 354, § 316.

30-1405. Repealed. Laws 1974, LB 354, § 316.

30-1406. Repealed. Laws 1974, LB 354, § 316.

30-1407. Repealed. Laws 1974, LB 354, § 316.

30-1408. Repealed. Laws 1974, LB 354, § 316.

30-1409. Repealed. Laws 1974, LB 354, § 316.

30-1410. Repealed. Laws 1974, LB 354, § 316.

30-1411. Repealed. Laws 1974, LB 354, § 316.

30-1412. Repealed. Laws 1974, LB 354, § 316.

30-1413. Repealed. Laws 1974, LB 354, § 316.

30-1414. Repealed. Laws 1974, LB 354, § 316.

30-1415. Repealed. Laws 1974, LB 354, § 316.

30-1501. Repealed. Laws 1974, LB 354, § 316.

30-1502. Repealed. Laws 1974, LB 354, § 316.

30-1503. Repealed. Laws 1974, LB 354, § 316.

30-1504. Repealed. Laws 1974, LB 354, § 316.

30-1505. Repealed. Laws 1974, LB 354, § 316.

30-1506. Repealed. Laws 1974, LB 354, § 316.

30-1507. Repealed. Laws 1974, LB 354, § 316.

30-1508. Repealed. Laws 1974, LB 354, § 316.

30-1509. Repealed. Laws 1974, LB 354, § 316.

30-1510. Repealed. Laws 1974, LB 354, § 316.

30-1511. Repealed. Laws 1974, LB 354, § 316.

30-1601. Appeal; procedure; operate as supersedeas; when; appellant; pay costs; when.

(1) In all matters arising under the Nebraska Probate Code, in all matters in county court arising under the Nebraska Uniform Trust Code, and in all matters in county court arising under the Health Care Surrogacy Act, appeals may be taken to the Court of Appeals in the same manner as an appeal from district court to the Court of Appeals.

(2) An appeal may be taken by any party and may also be taken by any person against whom the final judgment or final order may be made or who may be affected thereby.

(3) When the appeal is by someone other than a personal representative, conservator, trustee, guardian, guardian ad litem, or surrogate pursuant to the Health Care Surrogacy Act the appealing party shall, within thirty days after the entry of the judgment or final order complained of, deposit with the clerk of the county court a supersedeas bond or undertaking in such sum as the court shall direct, with at least one good and sufficient surety approved by the court, conditioned that the appellant will satisfy any judgment and costs that may be adjudged against him or her, including costs under subsection (6) of this section, unless the court directs that no bond or undertaking need be deposited. If an appellant fails to comply with this subsection, the Court of Appeals on motion and notice may take such action, including dismissal of the appeal, as is just.

(4) The appeal shall be a supersedeas for the matter from which the appeal is specifically taken, but not for any other matter. In appeals pursuant to sections 30-2601 to 30-2661, upon motion of any party to the action, the county court may remove the supersedeas or require the appealing party to deposit with the clerk of the county court a bond or other security approved by the court in an amount and conditioned in accordance with sections 30-2640 and 30-2641. Once the appeal is perfected, the court having jurisdiction over the appeal may, upon motion of any party to the action, reimpose or remove the supersedeas or require the appealing party to deposit with the clerk of the court a bond or other security approved by the court in an amount and conditioned in accordance with sections 30-2640 and 30-2641. Upon motion of any interested person or upon the court's own motion, the county court may appoint a special guardian or conservator pending appeal despite any supersedeas order.

(5) The judgment of the Court of Appeals shall not vacate the judgment in the county court. The judgment of the Court of Appeals shall be certified without cost to the county court for further proceedings consistent with the determination of the Court of Appeals.

(6) If it appears to the Court of Appeals that an appeal was taken vexatiously or for delay, the court shall adjudge that the appellant shall pay the cost thereof, including an attorney's fee, to the adverse party in an amount fixed by the Court of Appeals, and any bond required under subsection (3) of this section shall be liable for the costs. In a proceeding under sections 30-701 to 30-713, the Court of Appeals may also order remedies under section 30-705.

Source:Laws 1881, c. 47, § 1, p. 227; R.S.1913, § 1526; C.S.1922, § 1471; C.S.1929, § 30-1601; R.S.1943, § 30-1601; Laws 1975, LB 481, § 14; Laws 1981, LB 42, § 17; Laws 1995, LB 538, § 7; Laws 1997, LB 466, § 1; Laws 1999, LB 43, § 18; Laws 2003, LB 130, § 119; Laws 2011, LB157, § 4; Laws 2018, LB104, § 21; Laws 2018, LB845, § 14.

Cross References

Health Care Surrogacy Act, see section 30-601.

Nebraska Probate Code, see section 30-2201.

Nebraska Uniform Trust Code, see section 30-3801.

Annotations

1. Scope

2. When appeal allowed

3. Procedure

4. Who may appeal

1. Scope

In probate proceedings, the Supreme Court's scope of review is limited to error appearing on the record. In re Estate of Massie, 218 Neb. 103, 353 N.W.2d 735 (1984).

Provisions relating to appeal in probate matters apply to actions involving appointment of guardians and administration of their wards' estates. In re Guardianship of Hergenrother, 141 Neb. 858, 5 N.W.2d 118 (1942); In re Guardianship of Warner, 137 Neb. 25, 288 N.W. 39 (1939).

This section is not applicable to appeals from decree of partition and distribution of estates; executors cannot appeal unless pecuniarily affected. Merrick v. Kennedy, 46 Neb. 264, 64 N.W. 989 (1895).

2. When appeal allowed

An order ending a discrete phase of probate proceedings is a final, appealable order, but one that is merely preliminary to such an order is not. In re Estate of Larson, 308 Neb. 240, 953 N.W.2d 535 (2021).

Party aggrieved by final order of county court in probate matter is not confined to remedy of appeal, but may resort to error proceedings. In re Berg's Estate, 139 Neb. 99, 296 N.W. 460 (1941).

Orders made during progress of probate proceedings allowing fees and partial distribution of estate are interlocutory and not final, and are not appealable. In re Estate of Lehman, 135 Neb. 592, 283 N.W. 199 (1939).

Party not prejudiced by judgment cannot appeal therefrom; order of county court requiring executor to retain sufficient funds to pay contingent claim when absolute is not appealable. In re Estate of Bolton, 121 Neb. 737, 238 N.W. 358 (1931).

Order of county court approving executor's account, not discharging executor, but continuing proceedings to future date for further report, is not final order and not appealable. In re Hansen's Estate, 117 Neb. 551, 221 N.W. 694 (1928).

Appeal may be had by one affected whose name does not appear as party. In re Strelow's Guardianship, 116 Neb. 873, 219 N.W. 387 (1928).

Order of distribution is appealable; proceeding being in rem, all persons interested are parties. In re Estate of Creighton, 91 Neb. 654, 136 N.W. 1001 (1912).

Appeal lies from judgment of probate court granting or refusing an allowance to widow out of estate of her husband. Rieger v. Schaible, 81 Neb. 33, 115 N.W. 560 (1908).

Appeal lies from all final orders and judgments in probate matters. Weeke v. Wortmann, 77 Neb. 407, 109 N.W. 503 (1906).

Order that administrator turn over to his successor money claimed by him as gift from testator is appealable. Foster v. Murphy, 76 Neb. 576, 107 N.W. 843 (1906).

Order removing special administrator and appointing another to serve instead is final order and appealable. In re Estate of Pope, 75 Neb. 550, 106 N.W. 659 (1906).

An order refusing permission to file claim after expiration of time allowed is appealable. Ribble v. Furmin, 71 Neb. 108, 98 N.W. 420 (1904).

Appeal lies from order allowing claim against estate though no answer was filed against claim, and order was made in absence of administrator. Herman v. Beck, 68 Neb. 566, 94 N.W. 512 (1903).

Order allowing claim is appealable. Estate of McKenna v. McCormick, 60 Neb. 595, 83 N.W. 844 (1900).

Appeal from probate of will may be made without consent of court and without notice. Bazzo v. Wallace, 16 Neb. 293, 20 N.W. 314 (1884).

3. Procedure

When a protected person dies pending an appeal initiated by a close family member who filed an objection, whether the protected person needed a conservator is a moot issue unless the family member asks the appellate court to take judicial notice of a proceeding that shows the issue is not moot. Absent that showing, the protected person's death abates the family member's appeal, but it does not extinguish the cause of action or affect the validity of the underlying orders appointing a conservator. In re Conservatorship of Franke, 292 Neb. 912, 875 N.W.2d 408 (2016).

When an executor appeals to protect his or her individual interest, a bond is required, the same as any litigant. In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012).

Right of appeal is statutory. In re Estate of Bednar, 151 Neb. 242, 37 N.W.2d 195 (1949).

Where account is allowed in part and appeal taken and bond given solely for part disallowed, appeal did not bring up entire account for review. In re Estate of Wilson, 83 Neb. 252, 119 N.W. 522 (1909).

Where same person was administrator of one estate and guardian of two other estates, and appeal was taken from objections to reports, cases were properly consolidated on appeal. Etmund v. Etmund, 83 Neb. 151, 119 N.W. 239 (1909).

Taking second appeal does not of itself constitute abandonment of first one. Drexel v. Reed, 65 Neb. 231, 91 N.W. 254 (1902).

Administrator, appealing from allowance of claim, thereby waives irregularities before judgment and brings whole controversy before the court. Dredla v. Baache, 60 Neb. 655, 83 N.W. 916 (1900).

The supersedeas bond requirement contained in this section applies to will contests removed from county court and tried in the first instance in district court pursuant to section 30-2429.01. In re Estate of Sehi, 17 Neb. App. 697, 772 N.W.2d 103 (2009).

4. Who may appeal

The parents of an adult incapacitated ward who appeared before county court as persons interested in his welfare and objected to the guardian's motion seeking discharge had standing to appeal from an order of discharge. In re Guardianship of Nicholas H., 309 Neb. 1, 958 N.W.2d 661 (2021).

An heir to a decedent is an interested person to a probate proceeding and may take an appeal pursuant to subsection (2) of this section from a final judgment or final order by which he or she is affected. In re Estate of Brinkman, 308 Neb. 117, 953 N.W.2d 1 (2021).

Subsection (2) of this section authorizes a protected person's close family members to appeal from a final order in a conservatorship proceeding if they filed an objection and the county court appointed a conservator. In re Conservatorship of Franke, 292 Neb. 912, 875 N.W.2d 408 (2016).

An heir is a party affected by contest of will and may appeal. Clutter v. Merrick, 162 Neb. 825, 77 N.W.2d 572 (1956).

Where bequest was made in trust to executors which county court declared invalid, executors have right to appeal. In re Estate of Creighton, 91 Neb. 654, 136 N.W. 1001 (1912).

Heirs cannot appeal from judgments or orders to which they have consented. In re Estate of Whiton, 86 Neb. 367, 125 N.W. 606 (1910).

Heirs depending upon an incompetent person for support may appeal from order dismissing their petition for appointment of guardian of incompetent. Tierney v. Tierney, 81 Neb. 193, 115 N.W. 764 (1908).

Appeal may be taken by any person affected. Gannon v. Phelan, 64 Neb. 220, 89 N.W. 1028 (1902).

Administrator who makes general objection to claim in probate court, and on appeal answers charging that claim is fraudulent, raises no new issue. Graham v. Estate of Townsend, 62 Neb. 364, 87 N.W. 169 (1901).

An heir may be substituted for administrator, where administrator had wrongfully compromised claims, to set aside order and prosecute action to recover claim due estate. Tecumseh Nat. Bank v. McGee, 61 Neb. 709, 85 N.W. 949 (1901).

One not prejudiced cannot appeal from order discharging executor. Cowherd v. Kitchen, 57 Neb. 426, 77 N.W. 1107 (1899).

One sued by administrator cannot petition to vacate appointment, and not being affected, cannot appeal. Missouri P. Ry. Co. v. Jay, 53 Neb. 747, 74 N.W. 259 (1898).

One of several defendants, who have separate and distinct defenses, may appeal; if interests are inseparably connected, appeal brings up whole case. Polk v. Covell, 43 Neb. 884, 62 N.W. 240 (1895).

30-1602. Repealed. Laws 1981, LB 42, § 27.

30-1603. Repealed. Laws 1981, LB 42, § 27.

30-1604. Repealed. Laws 1981, LB 42, § 27.

30-1605. Repealed. Laws 1981, LB 42, § 27.

30-1606. Repealed. Laws 1981, LB 42, § 27.

30-1607. Repealed. Laws 1981, LB 42, § 27.

30-1608. Repealed. Laws 1981, LB 42, § 27.

30-1609. Repealed. Laws 1981, LB 42, § 27.

30-1610. Repealed. Laws 1981, LB 42, § 27.

30-1701. Repealed. Laws 1974, LB 354, § 316.

30-1702. Repealed. Laws 1974, LB 354, § 316.

30-1703. Repealed. Laws 1974, LB 354, § 316.

30-1704. Repealed. Laws 1974, LB 354, § 316.

30-1705. Repealed. Laws 1974, LB 354, § 316.

30-1706. Repealed. Laws 1974, LB 354, § 316.

30-1707. Repealed. Laws 1974, LB 354, § 316.

30-1708. Repealed. Laws 1974, LB 354, § 316.

30-1709. Repealed. Laws 1974, LB 354, § 316.

30-1710. Repealed. Laws 1974, LB 354, § 316.

30-1711. Repealed. Laws 1974, LB 354, § 316.

30-1712. Repealed. Laws 1974, LB 354, § 316.

30-1713. Repealed. Laws 1974, LB 354, § 316.

30-1714. Repealed. Laws 1974, LB 354, § 316.

30-1715. Repealed. Laws 1974, LB 354, § 316.

30-1716. Repealed. Laws 1974, LB 354, § 316.

30-1801. Repealed. Laws 1974, LB 354, § 316.

30-1802. Repealed. Laws 1974, LB 354, § 316.

30-1803. Repealed. Laws 1974, LB 354, § 316.

30-1804. Repealed. Laws 1974, LB 354, § 316.

30-1805. Repealed. Laws 1974, LB 354, § 316.

30-1806. Repealed. Laws 1974, LB 354, § 316.

30-1807. Repealed. Laws 1974, LB 354, § 316.

30-1901. Repealed. Laws 1974, LB 354, § 316.

30-1902. Repealed. Laws 1974, LB 354, § 316.

30-1903. Repealed. Laws 1974, LB 354, § 316.

30-1904. Repealed. Laws 1974, LB 354, § 316.

30-1905. Repealed. Laws 1974, LB 354, § 316.

30-1906. Repealed. Laws 1974, LB 354, § 316.

30-1907. Repealed. Laws 1974, LB 354, § 316.

30-1908. Repealed. Laws 1974, LB 354, § 316.

30-1909. Repealed. Laws 1974, LB 354, § 316.

30-1910. Repealed. Laws 1974, LB 354, § 316.

30-1911. Repealed. Laws 1974, LB 354, § 316.

30-1912. Repealed. Laws 1974, LB 354, § 316.

30-1913. Repealed. Laws 1974, LB 354, § 316.

30-1914. Repealed. Laws 1974, LB 354, § 316.

30-2001. Repealed. Laws 1974, LB 354, § 316.

30-2002. Repealed. Laws 1974, LB 354, § 316.

30-2003. Repealed. Laws 1974, LB 354, § 316.

30-2004. Repealed. Laws 1974, LB 354, § 316.

30-2005. Repealed. Laws 1974, LB 354, § 316.

30-2006. Repealed. Laws 1974, LB 354, § 316.

30-2007. Repealed. Laws 1974, LB 354, § 316.

30-2008. Repealed. Laws 1974, LB 354, § 316.

30-2009. Repealed. Laws 1974, LB 354, § 316.

30-2010. Repealed. Laws 1974, LB 354, § 316.

30-2011. Repealed. Laws 1974, LB 354, § 316.

30-2012. Repealed. Laws 1974, LB 354, § 316.

30-2101. Repealed. Laws 1974, LB 354, § 316.

30-2102. Repealed. Laws 1974, LB 354, § 316.

30-2103. Repealed. Laws 1974, LB 354, § 316.

30-2104. Repealed. Laws 1974, LB 354, § 316.

30-2105. Repealed. Laws 1974, LB 354, § 316.

30-2106. Repealed. Laws 1974, LB 354, § 316.

30-2201. Short title.

Sections 30-401 to 30-406, 30-701 to 30-713, 30-2201 to 30-2902, 30-3901 to 30-3923, 30-4001 to 30-4045, and 30-4201 to 30-4210 and the Public Guardianship Act shall be known and may be cited as the Nebraska Probate Code.

Source:Laws 1974, LB 354, § 1, UPC § 1-101; Laws 1985, LB 292, § 1; Laws 1993, LB 250, § 33; Laws 1993, LB 782, § 2; Laws 1997, LB 466, § 2; Laws 1999, LB 100, § 1; Laws 2010, LB758, § 1; Laws 2011, LB157, § 28; Laws 2012, LB1113, § 46; Laws 2014, LB788, § 8; Laws 2014, LB920, § 19; Laws 2014, LB998, § 7; Laws 2015, LB43, § 1; Laws 2015, LB422, § 1; Laws 2016, LB934, § 13; Laws 2018, LB845, § 15; Laws 2020, LB966, § 10.

Cross References

Public Guardianship Act, see section 30-4101.

Annotations

Appeals of matters arising under the Nebraska Probate Code are reviewed for error on the record. In re Guardianship of Brenda B. et al., 13 Neb. App. 618, 698 N.W.2d 228 (2005).

30-2202. Purposes; rule of construction.

(a) This code shall be liberally construed and applied to promote its underlying purposes and policies.

(b) The underlying purposes and policies of this code are:

(1) to simplify and clarify the law concerning the affairs of decedents, missing persons, protected persons, minors, and incapacitated persons;

(2) to discover and make effective the intent of a decedent in distribution of his or her property;

(3) to promote a speedy and efficient system for liquidating the estate of the decedent and making distribution to his or her successors; and

(4) to make uniform the law among the various jurisdictions.

Source:Laws 1974, LB 354, § 2, UPC § 1-102; Laws 2003, LB 130, § 120.

Annotations

The Nebraska Probate Code should be liberally construed to discover and make effective the intent of a decedent in the distribution of his property. DeVries v. Rix, 203 Neb. 392, 279 N.W.2d 89 (1979).

30-2203. Supplementary general principles of law applicable.

Unless displaced by the particular provisions of this code, the principles of law and equity supplement its provisions.

Source:Laws 1974, LB 354, § 3, UPC § 1-103.

30-2204. Severability.

If any provisions of this code or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the code which can be given effect without the invalid provision or application, and to this end the provisions of this code are declared to be severable.

Source:Laws 1974, LB 354, § 4, UPC § 1-104.

30-2205. Construction against implied repeal.

This code is a general act intended as a unified coverage of its subject matter and no part of it shall be deemed impliedly repealed by subsequent legislation if it can reasonably be avoided.

Source:Laws 1974, LB 354, § 5, UPC § 1-105.

30-2206. Effect of fraud and evasion.

Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this code or if fraud is used to avoid or circumvent the provisions or purposes of this code, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud or restitution from any person (other than a bona fide purchaser) benefiting from the fraud, whether innocent or not. Any proceeding must be commenced within two years after the discovery of the fraud, but no proceeding may be brought against one not a perpetrator of the fraud later than five years after the time of commission of the fraud. This section has no bearing on remedies relating to fraud practiced on a decedent during his lifetime which affects the succession of his estate.

Source:Laws 1974, LB 354, § 6, UPC § 1-106.

30-2207. Evidence as to death or status.

In proceedings under this code the rules of evidence in courts of general jurisdiction, including any relating to simultaneous deaths, are applicable unless specifically displaced by the code. In addition, the following rules relating to determination of death and status are applicable:

(1) a certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death purportedly occurred is prima facie proof of the fact, place, date and time of death and the identity of the decedent;

(2) a certified or authenticated copy of any record or report of a governmental agency, domestic or foreign, that a person is missing, detained, dead, or alive is prima facie evidence of the status and of the dates, circumstances and places disclosed by the record or report;

(3) a person who is absent for a continuous period of five years, during which he has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry is presumed to be dead. His death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier.

Source:Laws 1974, LB 354, § 7, UPC § 1-107.

Annotations

This section does not preclude the establishment of death by circumstantial evidence before the expiration of the 5-year statutory period. State v. Edwards, 278 Neb. 55, 767 N.W.2d 784 (2009).

This section sets forth the evidence that can be used to prove the fact of death in proceedings under the Nebraska Probate Code, not the Nebraska Criminal Code. State v. Edwards, 278 Neb. 55, 767 N.W.2d 784 (2009).

30-2208. Acts by holder of general power.

For the purpose of granting consent or approval with regard to the acts or accounts of a personal representative, including relief from liability or penalty for failure to post bond or to perform other duties, the sole holder or all coholders of a presently exercisable general power of appointment, including one in the form of a power of amendment or revocation, are deemed to act for beneficiaries to the extent their interests (as objects, takers in default, or otherwise) are subject to the power.

Source:Laws 1974, LB 354, § 8, UPC § 1-108; Laws 2003, LB 130, § 121.

30-2209. General definitions.

Subject to additional definitions contained in the subsequent articles which are applicable to specific articles or parts, and unless the context otherwise requires, in the Nebraska Probate Code:

(1) Application means a written request to the registrar for an order of informal probate or appointment under part 3 of Article 24.

(2) Beneficiary, as it relates to trust beneficiaries, includes a person who has any present or future interest, vested or contingent, and also includes the owner of an interest by assignment or other transfer, and as it relates to a charitable trust includes any person entitled to enforce the trust.

(3) Child includes any individual entitled to take as a child under the code by intestate succession from the parent whose relationship is involved and excludes any person who is only a stepchild, a foster child, or a grandchild or any more remote descendant.

(4) Claim, in respect to estates of decedents and protected persons, includes liabilities of the decedent or protected person whether arising in contract, in tort or otherwise, and liabilities of the estate which arise at or after the death of the decedent or after the appointment of a conservator, including funeral expenses and expenses of administration. The term does not include estate or inheritance taxes, demands or disputes regarding title of a decedent or protected person to specific assets alleged to be included in the estate.

(5) Court means the court or branch having jurisdiction in matters relating to the affairs of decedents. This court in this state is known as county court or, for purposes of guardianship of a juvenile over which a separate juvenile court already has jurisdiction, the county court or separate juvenile court.

(6) Conservator means a person who is appointed by a court to manage the estate of a protected person.

(7) Devise, when used as a noun, means a testamentary disposition of real or personal property and, when used as a verb, means to dispose of real or personal property by will.

(8) Devisee means any person designated in a will to receive a devise. In the case of a devise to an existing trust or trustee, or to a trustee or trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees.

(9) Disability means cause for a protective order as described by section 30-2630.

(10) Disinterested witness to a will means any individual who acts as a witness to a will and is not an interested witness to such will.

(11) Distributee means any person who has received property of a decedent from his or her personal representative other than as a creditor or purchaser. A testamentary trustee is a distributee only to the extent of distributed assets or increment thereto remaining in his or her hands. A beneficiary of a testamentary trust to whom the trustee has distributed property received from a personal representative is a distributee of the personal representative. For purposes of this provision, testamentary trustee includes a trustee to whom assets are transferred by will, to the extent of the devised assets.

(12) Estate includes the property of the decedent, trust, or other person whose affairs are subject to the Nebraska Probate Code as originally constituted and as it exists from time to time during administration.

(13) Exempt property means that property of a decedent's estate which is described in section 30-2323.

(14) Fiduciary includes personal representative, guardian, conservator, and trustee.

(15) Foreign personal representative means a personal representative of another jurisdiction.

(16) Formal proceedings mean those conducted before a judge with notice to interested persons.

(17) Guardian means a person who has qualified as a guardian of a minor or incapacitated person pursuant to testamentary or court appointment, but excludes one who is merely a guardian ad litem.

(18) Heirs mean those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent.

(19) Incapacitated person is as defined in section 30-2601.

(20) Informal proceedings mean those conducted without notice to interested persons by an officer of the court acting as a registrar for probate of a will or appointment of a personal representative.

(21) Except for purposes of article 26 of the Nebraska Probate Code, interested person includes heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against a trust estate or the estate of a decedent, ward, or protected person which may be affected by the proceeding. It also includes persons having priority for appointment as personal representative, and other fiduciaries representing interested persons. The meaning as it relates to particular persons may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding.

(22) Interested witness to a will means any individual who acts as a witness to a will at the date of its execution and who is or would be entitled to receive any property thereunder if the testator then died under the circumstances existing at the date of its execution, but does not include any individual, merely because of such nomination, who acts as a witness to a will by which he or she is nominated as personal representative, conservator, guardian, or trustee.

(23) Issue of a person means all his or her lineal descendants of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent contained in the Nebraska Probate Code.

(24) Lease includes an oil, gas, or other mineral lease.

(25) Letters include letters testamentary, letters of guardianship, letters of administration, and letters of conservatorship.

(26) Minor means an individual under nineteen years of age, but in case any person marries under the age of nineteen years his or her minority ends.

(27) Mortgage means any conveyance, agreement, or arrangement in which property is used as security.

(28) Nonresident decedent means a decedent who was domiciled in another jurisdiction at the time of his or her death.

(29) Notice means compliance with the requirements of notice pursuant to subdivisions (a)(1) and (a)(2) of section 30-2220.

(30) Organization includes a corporation, government, or governmental subdivision or agency, business trust, estate, trust, partnership, limited liability company, or association, two or more persons having a joint or common interest, or any other legal entity.

(31) Parent includes any person entitled to take, or who would be entitled to take if the child died without a will, as a parent under the Nebraska Probate Code, by intestate succession from the child whose relationship is in question and excludes any person who is only a stepparent, foster parent, or grandparent.

(32) Person means an individual, a corporation, an organization, a limited liability company, or other legal entity.

(33) Personal representative includes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status.

(34) Petition means a written request to the court for an order after notice.

(35) Proceeding includes action at law and suit in equity, but does not include a determination of inheritance tax under Chapter 77, article 20, or estate tax apportionment as provided in sections 77-2108 to 77-2112.

(36) Property includes both real and personal property or any interest therein and means anything that may be the subject of ownership.

(37) Protected person is as defined in section 30-2601.

(38) Protective proceeding is as defined in section 30-2601.

(39) Registrar refers to the official of the court designated to perform the functions of registrar as provided in section 30-2216.

(40) Relative or relation of a person means all persons who are related to him or her by blood or legal adoption.

(41) Security includes any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under such a title or lease, collateral-trust certificate, transferable share, voting-trust certificate or, in general, any interest or instrument commonly known as a security, or any certificate of interest or participation, any temporary or interim certificate, receipt, or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of the foregoing.

(42) Settlement, in reference to a decedent's estate, includes the full process of administration, distribution, and closing.

(43) Special administrator means a personal representative as described by sections 30-2457 to 30-2461.

(44) State includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States.

(45) Successor personal representative means a personal representative, other than a special administrator, who is appointed to succeed a previously appointed personal representative.

(46) Successors mean those persons, other than creditors, who are entitled to property of a decedent under his or her will or the Nebraska Probate Code.

(47) Supervised administration refers to the proceedings described in Article 24, part 5.

(48) Testacy proceeding means a proceeding to establish a will or determine intestacy.

(49) Testator means the maker of a will.

(50) Trust includes any express trust, private or charitable, with additions thereto, wherever and however created. It also includes a trust created or determined by judgment or decree under which the trust is to be administered in the manner of an express trust. Trust excludes other constructive trusts, and it excludes resulting trusts, conservatorships, personal representatives, trust accounts as defined in Article 27, custodial arrangements pursuant to the Nebraska Uniform Transfers to Minors Act, business trusts providing for certificates to be issued to beneficiaries, common trust funds, voting trusts, security arrangements, liquidation trusts, and trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions, or employee benefits of any kind, and any arrangement under which a person is nominee or escrowee for another.

(51) Trustee includes an original, additional, or successor trustee, whether or not appointed or confirmed by court.

(52) Ward is as defined in section 30-2601.

(53) Will means any instrument, including any codicil or other testamentary instrument complying with sections 30-2326 to 30-2338, which disposes of personal or real property, appoints a personal representative, conservator, guardian, or trustee, revokes or revises an earlier executed testamentary instrument, or encompasses any one or more of such objects or purposes.

Source:Laws 1974, LB 354, § 9, UPC § 1-201; Laws 1978, LB 650, § 1; Laws 1992, LB 907, § 26; Laws 1993, LB 121, § 193; Laws 1998, LB 1041, § 3; Laws 2011, LB157, § 29.

Cross References

Nebraska Uniform Transfers to Minors Act, see section 43-2701.

Annotations

"Any person interested in the welfare" of a protected person has standing to intervene and is not limited to those persons more narrowly defined as "interested persons" in subsection (21) of this section. In re Guardianship & Conservatorship of Cordel, 274 Neb. 545, 741 N.W.2d 675 (2007).

Pursuant to subsection (4) of this section, a judgment lien on the proceeds from a sale is not a claim subject to the provisions of the Nebraska Probate Code. Pursuant to subsection (4) of this section, the Nebraska Probate Code exempts liens because a lien by definition is not a liability as that term is used in the definition of claims. McCook Nat. Bank v. Bennett, 248 Neb. 567, 537 N.W.2d 353 (1995).

Subsection (4) of this section does not distinguish between legal and equitable title when excluding disputes regarding title of a decedent from the definition of "claims". Eggers v. Rittscher, 247 Neb. 648, 529 N.W.2d 741 (1995).

As "distributee" is defined in subdivision (11) of this section, failure to inform court of attorney fee payments did not violate this particular supervised administration because such fees were not "distributions." In re Estate of Snover, 233 Neb. 198, 443 N.W.2d 894 (1989).

An action to recover specific trust property, or its traceable product, from a decedent's estate is not a claim under subdivision (4) of this section and need not be filed as a claim against the estate. In re Estate of Chaney, 232 Neb. 121, 439 N.W.2d 764 (1989).

30-2210. Territorial application.

Except as otherwise provided in this code, this code applies to (1) the affairs and estates of decedents, missing persons, and persons to be protected, domiciled in this state, (2) the property of nonresidents located in this state or property coming into the control of a fiduciary who is subject to the laws of this state, (3) incapacitated persons and minors in this state, except as provided in the Nebraska Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, and (4) survivorship and related accounts in this state.

Source:Laws 1974, LB 354, § 10, UPC § 1-301; Laws 2003, LB 130, § 122; Laws 2011, LB157, § 30.

Cross References

Nebraska Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, see section 30-3901.

30-2211. Subject matter jurisdiction.

(a) To the full extent permitted by the Constitution of Nebraska, the court has jurisdiction over all subject matter relating to (1) estates of decedents, including construction of wills and determination of heirs and successors of decedents, and estates of protected persons; and (2) protection of minors and incapacitated persons, except as provided in the Nebraska Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act.

(b) The court has full power to make orders, judgments, and decrees and take all other action necessary and proper to administer justice in the matters which come before it.

Source:Laws 1974, LB 354, § 11, UPC § 1-302; Laws 2003, LB 130, § 123; Laws 2011, LB157, § 31.

Cross References

Nebraska Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, see section 30-3901.

Annotations

The county courts have the power to construe wills. Brinkman v. Brinkman, 302 Neb. 315, 923 N.W.2d 380 (2019).

In common-law and equity actions relating to decedents' estates, the county courts have concurrent original jurisdiction with the district courts. When the jurisdiction of the county court and district court is concurrent, the basic principles of judicial administration require that the court which first acquires jurisdiction should retain it to the exclusion of the other court. Washington v. Conley, 273 Neb. 908, 734 N.W.2d 306 (2007).

To the extent permitted by the Nebraska Constitution, the county court has jurisdiction over all subject matter relating to estates of decedents, including the determination of heirs, subject to administration. Mischke v. Mischke, 253 Neb. 439, 571 N.W.2d 248 (1997).

County courts, in exercising exclusive original jurisdiction over estates, may apply equitable principles to matters within probate jurisdiction. In re Estate of Steppuhn, 221 Neb. 329, 377 N.W.2d 83 (1985).

In an equity action to determine title to joint bank accounts based on constructive trust or conversion, the county courts cannot acquire jurisdiction under this section since they have no equity jurisdiction over this type of action. Miller v. Janecek, 210 Neb. 316, 314 N.W.2d 250 (1982).

County courts have exclusive original jurisdiction of all matters related to decedents' estates, including the probate of wills and the construction thereof, and all other jurisdiction heretofore provided and not specifically repealed by Laws 1972, LB 1032, and such other jurisdiction as thereafter provided by law. County courts, in exercising exclusive original jurisdiction over estates, may apply equitable principles to matters within probate jurisdiction. In re Estate of Layton, 207 Neb. 646, 300 N.W.2d 802 (1981).

The probate court lacked subject matter jurisdiction under this section to address requests for reimbursement of attorney fees by an heir or devisee from another heir or devisee that were incurred while defending against actions in the district court. In re Estate of Schurman, 30 Neb. App. 259, 967 N.W.2d 734 (2021).

30-2211.01. Minor; fees and costs.

The reasonable fees and costs of an attorney, a guardian ad litem, a physician, and a visitor appointed by the court for the minor shall be allowed, disallowed, or adjusted by the court and may be paid from the estate of the minor if the minor possesses an estate or, if not, shall be paid by the county in which the proceedings are brought or by the petitioner as costs of the action. An action under sections 30-2601 to 30-2661 may be initiated or defended in forma pauperis in accordance with sections 25-2301 to 25-2310. The court may assess attorney's fees and costs against the petitioner upon a showing that the action was frivolous in accordance with sections 25-824 to 25-824.03.

Source:Laws 2015, LB422, § 2.

30-2212. Venue; multiple proceedings; transfer.

(a) Where a proceeding under this code could be maintained in more than one place in this state, the court in which the proceeding is first commenced has the exclusive right to proceed.

(b) If proceedings concerning the same estate, protected person, or ward are commenced in more than one court of this state, the court in which the proceeding was first commenced shall continue to hear the matter, and the other courts shall hold the matter in abeyance until the question of venue is decided, and if the ruling court determines that venue is properly in another court, it shall transfer the proceeding to the other court.

(c) If a court finds that in the interest of justice a proceeding or a file should be located in another court of this state, the court making the finding may transfer the proceeding or file to the other court.

Source:Laws 1974, LB 354, § 12, UPC § 1-303; Laws 2003, LB 130, § 124.

30-2213. Supreme Court; establish rules; uniform administration, proceedings, and practice.

The Supreme Court shall have authority to establish rules to carry into effect the provisions of this code so that its administration, proceedings, and practice shall be uniform.

Source:Laws 1974, LB 354, § 13.

30-2214. Clerk of court shall keep records and certified copies.

The clerk of court shall keep a record for each decedent, ward, or protected person involved in any document which may be filed with the court under this code, including petitions and applications, demands for notices or bonds, and of any orders or responses relating thereto by the registrar or court, and establish and maintain a system for indexing, filing, or recording which is sufficient to enable users of the records to obtain adequate information. Upon payment of the fees required by law, the clerk must issue certified copies of any probated wills, letters issued to personal representatives, or any other record or paper filed or recorded. Certificates relating to probated wills must indicate whether the decedent was domiciled in this state and whether the probate was formal or informal. Certificates relating to letters must show the date of appointment.

Source:Laws 1974, LB 354, § 14, UPC § 1-305; Laws 2003, LB 130, § 125.

30-2215. Mailing published notice; proof.

The party instituting or maintaining the proceeding or his attorney is required to mail the published notice and give proof thereof in accordance with section 25-520.01.

Source:Laws 1974, LB 354, § 15.

30-2216. Registrar; powers.

The acts and orders which this code specifies as performable by the registrar may be performed either by a judge of the court or by a person, including the clerk, designated by the court by a written order filed and recorded in the office of the court.

Source:Laws 1974, LB 354, § 16, UPC § 1-307.

30-2217. Appeals; manner.

Appellate review under this code shall be governed by section 30-1601.

Source:Laws 1974, LB 354, § 17, UPC § 1-308.

Annotations

Appeals of matters arising under the Nebraska Probate Code are reviewed for error on the record. In re Conservatorship of Estate of Martin, 228 Neb. 103, 421 N.W.2d 463 (1988).

30-2218. Clerk magistrates; assignment of matters.

Assignment of matters arising under the Nebraska Probate Code to clerk magistrates shall be subject to sections 24-519 and 24-520.

Source:Laws 1974, LB 354, § 18, UPC § 1-309; Laws 1977, LB 167, § 2; Laws 1986, LB 529, § 46.

30-2219. Oath, affirmation, or statement on filed documents; perjury; penalty.

Except as otherwise specifically provided in this code or by rule, every document filed with the court under this code including applications, petitions, and demands for notice, shall be deemed to include an oath, affirmation, or statement to the effect that its representations are true as far as the person executing or filing it knows or is informed. Any person who willfully falsifies any such representation shall be guilty of perjury and shall, upon conviction thereof, be punished as provided by section 28-915.

Source:Laws 1974, LB 354, § 19, UPC § 1-310; Laws 1978, LB 748, § 25.

30-2220. Notice of hearing; method and time of giving.

(a) If notice of a hearing on any petition is required and except for specific notice requirements as otherwise provided, the petitioner shall cause notice of the time and place of hearing of any petition to be given to any interested person or his or her attorney if he or she has appeared by attorney or requested that notice be sent to his or her attorney. Notice shall be given:

(1) If the identity and address of any person is known (i) by mailing a copy thereof at least fourteen days before the time set for the hearing by certified, registered, or ordinary first-class mail addressed to the person being notified at the post office address given in his or her demand for notice, if any, or at his or her office or place of residence, if known, or (ii) by delivering a copy thereof to the person being notified personally at least fourteen days before the time set for the hearing; and

(2) By publishing at least once a week for three consecutive weeks a copy thereof in a legal newspaper having general circulation in the county where the hearing is to be held, the last publication of which is to be at least three days before the time set for the hearing.

If the action pending on which notice is required is a guardianship or conservatorship action under sections 30-2601 to 30-2661, publication shall be required only if the identity or address of any person required to be served is not known.

(b) The court for good cause shown may provide for a different method or time of giving notice for any hearing.

Source:Laws 1974, LB 354, § 20, UPC § 1-401; Laws 1978, LB 650, § 2; Laws 1993, LB 782, § 3; Laws 1997, LB 466, § 3.

Annotations

This section clearly states that in a statutory proceeding, the notice required to be given to all interested parties is 14 days. In re Conservatorship of Holle, 254 Neb. 380, 576 N.W.2d 473 (1998).

30-2221. Notice; other requirements; waiver.

A person, including a guardian ad litem, conservator, or other fiduciary, may waive notice or any other requirement for the mailing or receipt of instruments by a writing signed by him or his attorney and filed in the proceeding.

Source:Laws 1974, LB 354, § 21, UPC § 1-402; Laws 1978, LB 650, § 34.

30-2222. Pleadings; when parties bound by others; notice.

In formal proceedings involving estates of decedents, minors, protected persons, or incapacitated persons, and in judicially supervised settlements, the following apply:

(1) Interests to be affected shall be described in pleadings which give reasonable information to owners by name or class, by reference to the instrument creating the interests, or in other appropriate manner.

(2) Persons are bound by orders binding others in the following cases:

(i) Orders binding the sole holder or all coholders of a power of revocation or a presently exercisable general power of appointment, including one in the form of a power of amendment, bind other persons to the extent their interests (as objects, takers in default, or otherwise) are subject to the power.

(ii) To the extent there is no conflict of interest between them or among persons represented, orders binding a conservator bind the person whose estate he or she controls; orders binding a guardian bind the ward if no conservator of his or her estate has been appointed; orders binding a trustee bind beneficiaries of the trust in proceedings to probate a will establishing or adding to a trust, to review the acts or accounts of a prior fiduciary and in proceedings involving creditors or other third parties; and orders binding a personal representative bind persons interested in the undistributed assets of a decedent's estate in actions or proceedings by or against the estate. If there is no conflict of interest and no conservator or guardian has been appointed, a parent may represent his or her minor child.

(iii) An unborn or unascertained person who is not otherwise represented is bound by an order to the extent his or her interest is adequately represented by another party having a substantially identical interest in the proceeding.

(3) Notice is required as follows:

(i) Notice as prescribed by section 30-2220 shall be given to every interested person or to one who can bind an interested person as described in (2)(i) or (2)(ii) above. Notice may be given both to a person and to another who may bind him or her.

(ii) Notice is given to unborn or unascertained persons, who are not represented under (2)(i) or (2)(ii) above, by giving notice to all known persons whose interests in the proceedings are substantially identical to those of the unborn or unascertained persons.

(4) At any point in a proceeding, a court may appoint a guardian ad litem as provided in sections 30-4201 to 30-4210 to represent the interest of a minor, an incapacitated, unborn, or unascertained person, or a person whose identity or address is unknown, if the court determines that representation of the interest otherwise would be inadequate. If not precluded by conflict of interests, a guardian ad litem may be appointed to represent several persons or interests. The court shall set out its reasons for appointing a guardian ad litem as a part of the record of the proceeding.

Source:Laws 1974, LB 354, § 22, UPC § 1-403; Laws 2003, LB 130, § 126; Laws 2016, LB934, § 24.

Annotations

To the extent there is no conflict of interest between or among persons represented, orders binding a trustee bind the beneficiaries of a trust, and if there is no conflict of interest and no conservator or guardian has been appointed, a parent may represent his or her minor child. Koch v. Koch, 226 Neb. 305, 411 N.W.2d 319 (1987).

This section does not empower a county court to appoint a guardian ad litem for a mentally incapacitated person to serve in that capacity at a hearing held outside of that court concerning the subject's possible removal from the Beatrice State Developmental Center and the court cannot tax costs for services performed by the guardian ad litem at said hearing against the state. In re Guardianship of Jonas, 211 Neb. 397, 318 N.W.2d 867 (1982).

30-2223. Right of disposition of remains and funeral arrangements; powers and duties; petition filed with court; considerations; court order.

(1) Except as otherwise provided by section 23-1824, a person who is eighteen years of age or older and of sound mind, by testamentary disposition, by entering into a pre-need sale as defined by section 12-1102, or by affidavit as provided in subdivision (2)(a)(ii) of this section, may direct the location, manner, and conditions of disposition of his or her remains and the arrangements for funeral goods and services to be provided upon his or her death.

(2) Except as set forth in subsection (3) of this section or in section 71-20,121, the right of disposition, including the right to control the disposition of the remains of a deceased person, the location, manner, and conditions of disposition, and the arrangements for funeral goods and services to be provided, vests in the following order if the person listed is eighteen years of age or older and is of sound mind:

(a)(i) A person designated by the decedent as the person with the right of disposition in an affidavit executed in accordance with subdivision (2)(a)(ii) of this section.

(ii) A person who is eighteen years of age or older and of sound mind wishing to convey the right of disposition to another person may execute an affidavit before a notary public in substantially the following form:

State of .......... )

County of .......... )

I, .............., do hereby designate .............. with the right to control the disposition of my remains upon my death. I (...... have) (...... have not) attached specific directions concerning the disposition of my remains which the designee shall substantially comply with, so long as such directions are lawful and there are sufficient resources in my estate to carry out the directions. This affidavit does not constitute a durable power of attorney for health care.

......................... (signature of person executing affidavit)

Subscribed and sworn to before me this ...... day of the month of ............ of the year ...... .

......................... (signature of notary public);

(b) The surviving spouse of the decedent;

(c) The sole surviving child of the decedent or, if there is more than one child of the decedent, the majority of the surviving children, except that less than a majority of the surviving children shall be vested with the right of disposition if they have used reasonable efforts to notify all other surviving children of their instructions regarding the right of disposition and are not aware of any opposition to those instructions on the part of a majority of the surviving children;

(d) The surviving parent or parents of the decedent. If one of the surviving parents is absent, the remaining parent shall be vested with the right of disposition after reasonable efforts have been unsuccessful in locating the absent surviving parent;

(e) The surviving brother or sister of the decedent or, if there is more than one sibling of the decedent, the majority of the surviving siblings, except that less than the majority of the surviving siblings shall be vested with the right of disposition if they have used reasonable efforts to notify all other surviving siblings of their instructions regarding the right of disposition and are not aware of any opposition to those instructions on the part of a majority of the surviving siblings;

(f) The surviving grandparent of the decedent or, if there is more than one surviving grandparent, the majority of the grandparents, except that less than the majority of the surviving grandparents shall be vested with the right of disposition if they have used reasonable efforts to notify all other surviving grandparents of their instructions regarding the right of disposition and are not aware of any opposition to those instructions on the part of a majority of the surviving grandparents;

(g) The person in the next degree of kinship, in descending order, under the laws of descent and distribution, to inherit the estate of the decedent. If there is more than one person of the same degree, any person of that degree may exercise the right of disposition;

(h) The guardian of the person of the decedent at the time of the decedent's death, if one had been appointed;

(i) The personal representative of the estate of the decedent. The powers and duties under this section of the personal representative shall commence upon his or her appointment. Such powers and duties of the personal representative shall relate back in time to give acts by the personal representative which are beneficial to the disposition of the decedent's remains occurring prior to appointment the same effect as those occurring thereafter. Prior to appointment, the personal representative may carry out written instructions of the decedent relating to his or her body, funeral, and burial arrangements. The personal representative may also ratify and accept acts regarding disposition of the decedent's remains done by others where the acts would have been proper for the personal representative;

(j) The State Anatomical Board or the county board of the county where the death occurred in the case of an indigent person or any other person the disposition of whose remains is a responsibility of the state or county;

(k) A representative as described in section 38-1426 or 38-1427 that has arranged with the funeral establishment, cemetery, or crematory authority to cremate or bury a body part in the case of body parts received from the entity described in section 38-1426 or 38-1427; and

(l) In the absence of any person listed in subdivisions (2)(a) through (k) of this section, any other person willing to assume the right of disposition, including the funeral director with custody of the body, after attesting, in writing, that a good faith effort has been made to no avail to contact the persons listed in subdivisions (2)(a) through (k) of this section.

(3) A person entitled under this section to the right of disposition shall forfeit that right and the right is passed on to the next qualifying person as listed in subdivisions (2)(a) through (l) of this section in the following circumstances:

(a) Any person charged with first or second degree murder or voluntary manslaughter in connection with the decedent's death and whose charges are known to the funeral director. If the charges against such person are dismissed, or if such person is acquitted of the charges, the right of disposition is returned to such person;

(b) Any person who does not exercise his or her right of disposition within three days after notification of the death of the decedent or within four days after the decedent's death, whichever is earlier;

(c) If the person and the decedent are spouses and a petition to dissolve the marriage was pending at the time of the decedent's death; or

(d) If a county court pursuant to subsection (4) of this section determines that the person entitled to the right of disposition and the decedent were estranged at the time of death. For purposes of this subdivision, estranged means a physical and emotional separation from the decedent at the time of death which has existed for a period of time that clearly demonstrates an absence of due affection, trust, and regard for the decedent.

(4)(a) If two or more persons with the same relationship to the decedent hold the right of disposition and cannot by majority vote make a decision regarding the disposition of the decedent's remains, any of such persons or a funeral home with custody of the remains may file a petition asking the court to make a determination in the matter.

(b) Notwithstanding subsections (1) through (3) of this section, the county court of the county where the decedent died may award the right of disposition to the person determined by the court to be the most fit and appropriate to carry out the right of disposition and may make decisions regarding the decedent's remains if those sharing the right of disposition cannot agree.

(i) The reasonableness and practicality of the proposed funeral arrangements and disposition;

(ii) The degree of the personal relationship between the decedent and each of the persons claiming the right of disposition;

(iii) The desires of the person or persons who are ready, able, and willing to pay the cost of the funeral arrangements and disposition; and

(iv) The convenience and needs of other families and friends wishing to pay respects.

(d) In the event of a dispute regarding the right of disposition, a funeral establishment, cemetery, or crematory authority is not liable for refusing to accept the remains or to inter or otherwise dispose of the remains of the decedent or complete the arrangements for the final disposition of the remains until the funeral establishment, cemetery, or crematory authority receives a court order or other written agreement signed by the parties in disagreement that decides the final disposition of the remains. If the funeral establishment, cemetery, or crematory authority retains the remains for final disposition while the parties are in disagreement, the funeral establishment may embalm or refrigerate and shelter the body, or both, in order to preserve it while awaiting the final decision of the court and may add the cost of embalming or refrigeration and sheltering to the final disposition costs. If a funeral home brings an action under this subsection, the funeral establishment, cemetery, or crematory authority may add the legal fees and court costs associated with a petition under this subsection to the cost of final disposition. This subsection may not be construed to require or to impose a duty upon a funeral establishment, cemetery, or crematory authority to bring an action under this subsection.

(e) Except to the degree it may be considered by the court under subdivision (4)(c)(iii) of this section, the fact that a person has paid or agreed to pay for all or part of the funeral arrangements and final disposition does not give that person a greater claim to the right of disposition than the person would otherwise have. The personal representative of the estate of the decedent does not, by virtue of being the personal representative, have a greater claim to the right of disposition than the personal representative would otherwise have.

Source:Laws 2014, LB998, § 8.

Annotations

The district court did not abuse its discretion in charging a headstone to the estate, even though the decedent's surviving children had already bought one, where no headstone was purchased for approximately 6 months after his death, his mother requested a headstone be purchased, and the personal representative was unaware the children purchased a headstone. In re Estate of Larson, 311 Neb. 352, 972 N.W.2d 891 (2022).

30-2301. Intestate estate.

Any part of the estate of a decedent not effectively disposed of by his will passes to his heirs as prescribed in the following sections of this code.

Source:Laws 1974, LB 354, § 23, UPC § 2-101.

30-2302. Share of the spouse.

The intestate share of the surviving spouse is:

(1) if there is no surviving issue or parent of the decedent, the entire intestate estate;

(2) if there is no surviving issue but the decedent is survived by a parent or parents, the first one hundred thousand dollars, plus one-half of the balance of the intestate estate;

(3) if there are surviving issue all of whom are issue of the surviving spouse also, the first one hundred thousand dollars, plus one-half of the balance of the intestate estate;

(4) if there are surviving issue one or more of whom are not issue of the surviving spouse, one-half of the intestate estate.

Source:Laws 1974, LB 354, § 24, UPC § 2-102; Laws 1980, LB 694, § 2; Laws 2009, LB35, § 19.

30-2303. Share of heirs other than surviving spouse.

The part of the intestate estate not passing to the surviving spouse under section 30-2302, or the entire intestate estate if there is no surviving spouse, passes as follows:

(1) to the issue of the decedent; if they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree, then those of more remote degree take by representation;

(2) if there is no surviving issue, to his parent or parents equally;

(3) if there is no surviving issue or parent, to the issue of the parents or either of them by representation;

(4) if there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the issue of the paternal grandparents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there be no surviving grandparent or issue of grandparent on either the paternal or the maternal side, the entire estate passes to the relatives on the other side in the same manner as the half;

(5) if there is no surviving issue, parent, issue of a parent, grandparent or issue of a grandparent, the entire estate passes to the next of kin in equal degree, excepting that when there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claim through the nearest ancestor shall be preferred to those claiming through a more remote ancestor.

Source:Laws 1974, LB 354, § 25, UPC § 2-103.

Annotations

Grandchildren are "issue of parents" under subsection (3) of this section according to the definition of "issue of a person" found in section 30-2209(23). In re Estate of Evans, 20 Neb. App. 602, 827 N.W.2d 314 (2013).

Modern per stirpes distribution begins division of shares of the estate at the first generation where there is living issue. In re Estate of Evans, 20 Neb. App. 602, 827 N.W.2d 314 (2013).

30-2304. Requirement that heir survive decedent for one hundred twenty hours.

Any person who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent for purposes of homestead allowance, exempt property and intestate succession, and the decedent's heirs are determined accordingly. If the time of death of the decedent or of the person who would otherwise be an heir, or the times of death of both, cannot be determined, and it cannot be established that the person who would otherwise be an heir has survived the decedent by one hundred twenty hours, it is deemed that the person failed to survive for the required period. This section is not to be applied where its application would result in a taking of intestate estate by the state under section 30-2305.

Source:Laws 1974, LB 354, § 26, UPC § 2-104.

Annotations

A child, conceived after the biological father’s death through intrauterine insemination using his sperm and born within 9 months of his death, cannot inherit from the father as the father’s surviving issue because the child does not “survive” the father as required under this section. Amen v. Astrue, 284 Neb. 691, 822 N.W.2d 419 (2012).

30-2305. Escheat; no taker.

If there is no taker under the provisions of this article, the intestate estate passes to the state.

Source:Laws 1974, LB 354, § 27, UPC § 2-105.

30-2306. Representation.

If representation is called for by this code, the estate is divided into as many shares as there are surviving heirs in the nearest degree of kinship and deceased persons in the same degree who left issue who survive the decedent, each surviving heir in the nearest degree receiving one share and the share of each deceased person in the same degree being divided among his issue in the same manner.

Source:Laws 1974, LB 354, § 28, UPC § 2-106.

Annotations

There must be at least one survivor in a degree of kinship to apply the phrase "by right of representation." In re Estate of Evans, 20 Neb. App. 602, 827 N.W.2d 314 (2013).

When an estate is divided "by representation" as provided for in this section into as many shares as there are surviving heirs in the nearest degree of kinship, the court looks first to the decedent's siblings, then to the decedent's siblings' children, and on down the generational line until reaching a generation containing surviving heirs. In re Estate of Evans, 20 Neb. App. 602, 827 N.W.2d 314 (2013).

30-2307. Kindred of half blood.

The degrees of kindred shall be computed according to the rule of civil law. Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.

Source:Laws 1974, LB 354, § 29, UPC § 2-107; Laws 1978, LB 650, § 3.

30-2308. Afterborn heirs.

Relatives of the decedent conceived before his death but born thereafter inherit as if they had been born in the lifetime of the decedent.

Source:Laws 1974, LB 354, § 30, UPC § 2-108.

Annotations

A child, conceived after the biological father’s death through intrauterine insemination using his sperm and born within 9 months of his death, cannot inherit from the father as the father’s surviving issue because the child was not conceived prior to the father’s death. Amen v. Astrue, 284 Neb. 691, 822 N.W.2d 419 (2012).

30-2309. Meaning of child and related terms.

If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person,

(1) an adopted person is the child of an adopting parent and not of the natural parents except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and that natural parent.

(2) in cases not covered by (1), a person born out of wedlock is a child of the mother. That person is also a child of the father, if:

(i) the natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or

(ii) the paternity is established by an adjudication before the death of the father or is established thereafter by strict, clear and convincing proof. The open cohabitation of the mother and alleged father during the period of conception shall be admissible as evidence of paternity. The paternity established under this subparagraph (ii) is ineffective to qualify the father or his kindred to inherit from or through the child unless the father has openly treated the child as his, and has not refused to support the child.

Source:Laws 1974, LB 354, § 31, UPC § 2-109.

Annotations

Although subdivision (2) of this section applies specifically to children born out of wedlock, it applies a fortiori to children born in wedlock. This subdivision does not give illegitimate children rights of inheritance superior to those of legitimate children. Divorce proceeding may constitute a final adjudication of paternity within the meaning of subdivision (2) of this section. In re Estate of Trew, 244 Neb. 490, 507 N.W.2d 478 (1993).

A twice-adopted child may not inherit under the rules of intestacy from his first adoptive parent who has consented to the subsequent adoption and relinquished all rights of a parent in relation to that child. In re Estate of Luckey, Bailey v. Luckey, 206 Neb. 53, 291 N.W.2d 235 (1980).

Conflicting evidence of paternity does not prevent a trial court from determining heirs under subsection (2) of this section by clear and convincing evidence because the trial court deserves deference in weighing the credibility of the witnesses and deciding what evidence to believe. In re Estate of Brionez, 8 Neb. App. 913, 603 N.W.2d 688 (2000).

This section does not impose a written notice requirement on an objector. In re Estate of Brionez, 8 Neb. App. 913, 603 N.W.2d 688 (2000).

Under this section and the Nebraska Probate Code, an adopted child is an individual entitled to take as a child, and therefore an adopted child is included as a lineal descendant of its adoptive parent under the statutory definition of "issue." In re Estate of Hannan, 2 Neb. App. 636, 513 N.W.2d 339 (1994).

30-2310. Advancements; method of determining.

If a person dies intestate as to all his estate, property which he gave in his lifetime to an heir is treated as an advancement against the latter's share of the estate only if declared in a contemporaneous writing by the decedent or acknowledged in writing by the heir to be an advancement. For this purpose the property advanced is valued as of the time the heir came into possession or enjoyment of the property or as of the time of death of the decedent, whichever first occurs. If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the intestate share to be received by the recipient's issue, unless the declaration or acknowledgment provides otherwise.

Source:Laws 1974, LB 354, § 32, UPC § 2-110.

30-2311. Debts to decedent; retainer.

A debt owed to the decedent is not charged against the intestate share of any person except the debtor. If the debtor fails to survive the decedent, the debt is not taken into account in computing the intestate share of the debtor's issue.

Source:Laws 1974, LB 354, § 33, UPC § 2-111.

30-2312. Alienage; conditions.

No person is disqualified to take as an heir because he or she or a person through whom he or she claims is or has been an alien except as provided in section 4-107 and under the Foreign-owned Real Estate National Security Act.

Source:Laws 1974, LB 354, § 34, UPC § 2-112; Laws 2024, LB1301, § 3.
Operative Date: January 1, 2025

Cross References

Foreign-owned Real Estate National Security Act, see section 76-3701.

30-2312.01. Related by two lines of relationship; single share.

An individual who is related to the decedent through two lines of relationship is entitled to only a single share based on the relationship that would entitle the individual to the larger share.

Source:Laws 2020, LB966, § 11.

30-2312.02. Termination of parental rights; effect.

(a) A parent is barred from inheriting from or through a child of the parent if the parent's parental rights were terminated and the parent-child relationship was not judicially reestablished.

(b) For the purpose of intestate succession from or through the deceased child, a parent who is barred from inheriting under this section is treated as if the parent predeceased the child.

Source:Laws 2020, LB966, § 12.

30-2313. Right to elective share; validity of certain conveyances.

(a) Except as provided in subsection (c) of this section, if a married person domiciled in this state dies, the surviving spouse has a right of election to take an elective share in any fraction not in excess of one-half of the augmented estate under the limitations and conditions hereinafter stated.

(b) Except as provided in subsection (c) of this section, if a married person not domiciled in this state dies, the right, if any, of the surviving spouse to take an elective share in property in this state and the amount or extent of such share are governed by the law of the decedent's domicile at death.

(c) If a married person dies and such person (1) had been an owner of real estate in this state and (2) had conveyed the real estate during his or her lifetime without joinder of his or her spouse in the conveyance, while domiciled outside of the state, such conveyance shall be valid regardless of the law of the decedent's domicile at death. The real estate shall not be subject to any claims or interests derived from the grantor or the grantor's estate because the spouse did not join in the conveyance.

Source:Laws 1974, LB 354, § 35, UPC § 2-201; Laws 1980, LB 694, § 3; Laws 1994, LB 1116, § 1; Laws 1995, LB 872, § 1.

Annotations

This section provides the right of a surviving spouse to elect to take an elective share of a deceased spouse's estate. In re Estate of Peterson, 221 Neb. 792, 381 N.W.2d 109 (1986).

30-2314. Augmented estate.

(a) The augmented estate is the estate, first, reduced by the aggregate amount of funeral and administration expenses, homestead allowance, family allowances and exemptions, and enforceable claims and, second, increased by the aggregate amount of the following items:

(1) The value of property transferred by the decedent at any time during marriage to the surviving spouse to or for the benefit of any person other than a bona fide purchaser or the surviving spouse, but only to the extent to which the decedent did not receive adequate and full consideration in money or money's worth for such transfer, if such transfer is a transfer of any of the following types:

(i) Any transfer under which the decedent retained at death the possession or enjoyment of, or right to income from, the property;

(ii) Any transfer to the extent to which the decedent retained at death a power alone or with any other person to revoke such transfer or to consume, invade, or dispose of the principal of the property for his or her own benefit;

(iii) Any transfer whereby the property is held at death by the decedent and any other person or persons with right of survivorship; or

(iv) Any transfer to a donee or donees made by the decedent within three years of death to the extent to which the aggregate amount of such transfers to any one donee in any of such years exceeded three thousand dollars; and

(2) The value of property owned by the surviving spouse at death of the decedent and the value of property transferred by the surviving spouse at any time during marriage to the decedent to or for the benefit of any person other than the decedent, but exclusive of all income earned thereby before death of the decedent and only to the extent both to which such property would have been included in the augmented estate of the surviving spouse if the surviving spouse had predeceased the decedent and to which such property is derived from the decedent by any means other than testate or intestate succession without adequate and full consideration in money or money's worth, if such property is property of any of the following types:

(i) Any property derived from the decedent including, without limitation to, any beneficial interest of the surviving spouse in a trust created by the decedent during his or her lifetime, any property appointed to the surviving spouse by the exercise by the decedent of a general or a special power of appointment also exercisable in favor of any person other than the surviving spouse, any proceeds, including accidental death benefits, of insurance upon the life of the decedent together with any lump sum immediately payable and the commuted value of any proceeds of annuity contracts under which the decedent was the primary annuitant attributable to the premiums for such insurance paid by the decedent or by his or her employer, his or her partner, a partnership of which he or she was a member, or any of his or her creditors, the commuted value of any amounts or proceeds payable after death of the decedent under public or private pension, disability, compensation, death benefit, or retirement plan, exclusive of the federal social security, railroad retirement, or like system, by reason of service performed or disability incurred by the decedent, and the value of any share of the surviving spouse resulting from rights in community property in Nebraska or elsewhere formerly owned with the decedent; or

(ii) Any property owned by the surviving spouse at death of the decedent or previously transferred by the surviving spouse, except to the extent to which the surviving spouse establishes that such property was derived from any source other than the decedent.

A bona fide purchaser under (1) above is a purchaser for value in good faith and without notice of any adverse claim; and the attachment of stamps to an instrument and their cancellation under sections 76-901 to 76-908 are prima facie evidence that the transferee of the transfer thereby effected is a bona fide purchaser.

(b) Property included in the augmented estate under subsection (a) of this section is valued at the following dates:

(1) For property transferred by the decedent by irrevocable gift during lifetime, at the date, if before death of the decedent, the donee first came into possession or enjoyment of such property;

(2) For property transferred by the surviving spouse of the decedent, at the date, if before death of the decedent, such transfer became irrevocable; and

(3) For all property not valued at any other date, at the date of death of the decedent.

(1) Accident or life insurance proceeds, joint annuity, or pension payable to any person other than the surviving spouse of the decedent;

(2) Property transferred by the decedent to any person other than the surviving spouse by any bill of sale, conveyance, deed, or gift or by any other means of transfer either by an instrument of transfer joined in by the surviving spouse of the decedent or with the consent to transfer manifested before or after death of the decedent by a writing signed by the surviving spouse of the decedent before, contemporaneously with, or after the transfer; and

(3) Property transferred by or from the decedent to any person by any means other than intestate succession or testamentary disposition if a petition is not filed or delivered under section 30-2317 within nine months of the death of the decedent.

Source:Laws 1974, LB 354, § 36, UPC § 2-202; Laws 1980, LB 694, § 4; Laws 1985, LB 293, § 1.

Annotations

1. Calculating augmented estate

2. Purpose

3. Miscellaneous

1. Calculating augmented estate

Under subdivision (a)(1)(i) of this section, a transfer "under which the decedent retained at death the possession or enjoyment of, or right to income from, the property" does not require that the decedent's right to possession of, enjoyment of, or income from the property be recorded in the instrument of transfer. A decedent retains possession or enjoyment of, or the right to income from, property when it is understood that the decedent will retain such an interest despite the transfer. And such an understanding need not be express; it can be implied from the circumstances surrounding the transfer. In re Estate of Fries, 279 Neb. 887, 782 N.W.2d 596 (2010).

Under subdivision (c)(2) of this section, if a spouse had agreed to a transfer, the value of the transferred property is not included in the transferring spouse's augmented estate. In re Estate of Fries, 279 Neb. 887, 782 N.W.2d 596 (2010).

What is significant for purposes of subdivision (a)(1)(i) of this section is whether the parties to a transfer intended the decedent to functionally retain possession or enjoyment of, or the right to income from, the property—not whether the written instrument of transfer reflects that intent. In re Estate of Fries, 279 Neb. 887, 782 N.W.2d 596 (2010).

Under this section, only a decedent's transfers to others during his or her marriage to the surviving spouse are included in the augmented estate for calculating a surviving spouse's elective share. In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).

Under this section, the probate estate is augmented by first reducing the estate by specified obligations and liabilities and then increasing the estate by the value of specified properties and transfers. In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).

Whether premarital trust assets are part of the augmented estate for determining a surviving spouse's elective share is governed by this section, not section 30-3850 of the Nebraska Uniform Trust Code. In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).

A spouse's labor does not become a contribution "in money's worth" such as to take one-half the value of jointly produced and acquired assets out of the augmented estate computation provided for in this section. In re Estate of Carman, 213 Neb. 98, 327 N.W.2d 611 (1982).

An augmented estate formula includes property added that decedent gave to others during his lifetime and property held jointly by decedent and others. In re Estate of Florey, 212 Neb. 665, 325 N.W.2d 643 (1982).

Property owned in joint tenancy is not included in the estate of the deceased joint tenant except for inheritance tax purposes. In re Estate of Walters, 212 Neb. 645, 324 N.W.2d 889 (1982).

2. Purpose

The dual purpose of the elective share provisions is to prevent a spouse from being denied a fair share of the decedent's estate and also to prevent the surviving spouse from obtaining more than a fair share of the estate when he or she has already received a share of the estate through some other means. To achieve this purpose, the value of certain property transferred by the decedent during marriage is included in the decedent's augmented estate under subdivision (a)(1) of this section. In re Estate of Fries, 279 Neb. 887, 782 N.W.2d 596 (2010).

The exclusion of premarital trusts from the augmented estate was intended to permit a person to provide for children by a prior marriage, as by a revocable living trust, without concern that such provisions will be upset by later marriage. In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).

3. Miscellaneous

The signature of a testator's surviving spouse on a deed was evidence of a consent to transfer within the meaning of this section. In re Estate of Alberts, 293 Neb. 1, 875 N.W.2d 427 (2016).

Subdivision (a)(1)(i) of this section does not include the word "document" or even require a writing evidencing a transfer. In re Estate of Fries, 279 Neb. 887, 782 N.W.2d 596 (2010).

The concepts of section 30-2722 should inform the interpretation of this section regarding the evidence necessary to establish the source of property owned by the surviving spouse. In re Estate of Ross, 19 Neb. App. 355, 810 N.W.2d 435 (2011).

When there is reason to doubt the credibility of the surviving spouse's testimony, the court need not accept his or her testimony that the source of the accounts was other than the decedent. In re Estate of Ross, 19 Neb. App. 355, 810 N.W.2d 435 (2011).

30-2315. Right of election personal to surviving spouse.

The right of election of the surviving spouse may be exercised only during his or her lifetime by him or her. In the case of a protected person, the right of election may be exercised only by order of the court in which protective proceedings as to his or her property are pending, after finding that exercise thereof in the fraction designated or proposed is in the best interests of the protected person during his or her probable life expectancy and of the children, family members, or other successors to the decedent or to the protected person, due regard being given by the court to the other assets and resources of the protected person, the extent and nature of any dependent, mutual, or otherwise related estate planning of the decedent and the protected person, the present and likely future financial impact upon the estate of the decedent, the protected person or the estate of the protected person, or such successors of any federal or state estate, excise, gift, income, inheritance, succession, or other tax consequent upon such exercise, and the existence or nonexistence of any other factors deemed by the court to be relevant to the exercise or nonexercise of the right of election.

Source:Laws 1974, LB 354, § 37, UPC § 2-203; Laws 1980, LB 694, § 5.

Annotations

Under the plain language of this section, the surrounding facts and circumstances should be taken in consideration by the court in order to determine whether to authorize the filing for the elective share in the case of a protected person. In re Guardianship & Conservatorship of Kaiser, 295 Neb. 532, 891 N.W.2d 84 (2017).

If a surviving spouse dies after filing a petition for an elective share pursuant to section 30-2315 and this section, the proceeding to enforce the spouse's election as a vested right may be revived by the personal representative of the estate of the spouse who has made the election but who has died before distribution of property pursuant to the elective share. A surviving spouse elects to take a share in the augmented estate when a petition for the elective share is filed in the county court that has probate jurisdiction and is served on the estate's personal representative, if any. In re Estate of Stephenson, 243 Neb. 890, 503 N.W.2d 540 (1993).

30-2316. Waiver of right to elect and of other rights; enforceability.

(a) The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property, and family allowance, or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the surviving spouse.

(b) A surviving spouse's waiver is not enforceable if the surviving spouse proves that:

(1) he or she did not execute the waiver voluntarily; or

(2) the waiver was unconscionable when it was executed and, before execution of the waiver, he or she:

(i) was not provided a fair and reasonable disclosure of the property or financial obligations of the decedent;

(ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the decedent beyond the disclosure provided; and

(iii) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent.

(d) Unless it provides to the contrary, a waiver of "all rights", or equivalent language, in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation, divorce, or annulment is a waiver of all rights to elective share, homestead allowance, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to him or her from the other by intestate succession or by virtue of any will executed before the waiver or property settlement.

Source:Laws 1974, LB 354, § 38, UPC § 2-204; Laws 1994, LB 202, § 12; Laws 2018, LB847, § 1.

Annotations

A surviving spouse must prove both that the execution of the waiver was not voluntary and that the waiver was unconscionable when executed to prove a waiver he or she signed is unenforceable. In re Estate of Psota, 297 Neb. 570, 900 N.W.2d 790 (2017).

Subsection (d) of this section contemplates the waiving of the spouse's rights of inheritance only. Devney v. Devney, 295 Neb. 15, 886 N.W.2d 61 (2016).

This section's authorization of postnuptial estate agreements should be strictly construed, because all postnuptial agreements were void at common law. Devney v. Devney, 295 Neb. 15, 886 N.W.2d 61 (2016).

Subsection (d) of this section is applicable only if the parties enter into a property settlement. The term "settlement" implies a meeting of the minds of the parties to a transaction or controversy, an adjustment of differences or accounts, or a coming to an agreement. In re Estate of Pfeiffer, 265 Neb. 498, 658 N.W.2d 14 (2003).

Antenuptial agreements that waive the right of election are statutorily authorized by this section. In re Estate of Jakopovic, 261 Neb. 248, 622 N.W.2d 651 (2001).

This section imposes a statutory duty that the parties to an antenuptial agreement make fair disclosure before signing the antenuptial agreement. In re Estate of Stephenson, 243 Neb. 890, 503 N.W.2d 540 (1993).

This section provides that the parties to a valid antenuptial agreement may waive the right to elect a share of both real and personal property of a deceased spouse. In re Estate of Peterson, 221 Neb. 792, 381 N.W.2d 109 (1986).

Fair disclosure was given to the parties. In re Estate of Hill, 214 Neb. 702, 335 N.W.2d 750 (1983).

This section was the law in effect at the time of death, and thus controlled the question of whether a postnuptial agreement precluded the spouse from electing against the will. A postnuptial agreement not to elect against the will was valid and enforceable under this section. In re Estate of Kopecky, 6 Neb. App. 500, 574 N.W.2d 549 (1998).

30-2317. Proceeding for elective share; time limit.

(a) The surviving spouse may elect to take his or her elective share in the augmented estate by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share in any designated fraction not in excess of one-half or, in the absence of any such designation, of one-half of the augmented estate within nine months after the date of death or within six months after the probate of the decedent's will, whichever time limitation last expires. Nonprobate transfers described in section 30-2314(a)(1) shall not be included within the augmented estate for the purpose of computing the elective share if the petition is filed later than one year after death. The court may extend the time for election as it sees fit for cause shown by the surviving spouse before the time for election has expired.

(b) The surviving spouse shall give notice of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share.

(c) The surviving spouse may withdraw his or her demand for an elective share at any time before entry of a final determination by the court.

(d) After notice and hearing, the court shall determine the amount of the elective share and shall order its payment from the assets of the augmented estate or by contribution as appears appropriate under section 30-2319. If it appears that a fund or property included in the augmented estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than he or she would have been if relief had been secured against all persons subject to contribution.

(e) The order or judgment of the court may be enforced as necessary in suit for contribution or payment in other courts of this state or other jurisdictions.

Source:Laws 1974, LB 354, § 39, UPC § 2-205; Laws 1980, LB 694, § 6; Laws 1985, LB 293, § 2.

Annotations

A surviving spouse elects to take a share in the augmented estate when a petition for the elective share is filed in the county court that has probate jurisdiction and is served on the estate's personal representative, if any. In re Estate of Stephenson, 243 Neb. 890, 503 N.W.2d 540 (1993).

30-2318. Effect of election benefits by will or statute.

(a) The surviving spouse's election of his elective share does not affect the share of the surviving spouse under the provisions of the decedent's will or intestate succession unless the surviving spouse also expressly renounces in the petition for an elective share the benefit of all or any of the provisions. If any provision is so renounced, the property or other benefit which would otherwise have passed to the surviving spouse thereunder is treated, subject to contribution under subsection 30-2319(b), as if the surviving spouse had predeceased the testator.

(b) A surviving spouse is entitled to homestead allowance, exempt property and family allowance whether or not he elects to take an elective share.

Source:Laws 1974, LB 354, § 40, UPC § 2-206.

30-2319. Charging spouse with gifts received; liability of others for balance of elective share.

(a) In the proceeding for an elective share, property which is part of the augmented estate which passes or has passed to the surviving spouse by testate or intestate succession or other means and which has not been renounced, including that described in section 30-2314, is applied first to satisfy the elective share and to reduce the amount due from other recipients of portions of the augmented estate.

(b) Remaining property of the augmented estate is so applied that liability for the balance of the elective share of the surviving spouse is equitably apportioned among the recipients of the augmented estate in proportion to the value of their interests therein.

(c) Only original transferees from, or appointees of, the decedent and their donees, to the extent the donees have the property or its proceeds, are subject to the contribution to make up the elective share of the surviving spouse. A person liable to contribution may choose to give up the property transferred to him or to pay its value as of the time it is considered in computing the augmented estate.

Source:Laws 1974, LB 354, § 41, UPC § 2-207.

Annotations

A surviving spouse's beneficial interest in an inter vivos trust created by the decedent is property which passes or has passed to the surviving spouse within the meaning of this section such that it should be charged against the amount of the surviving spouse's elective share of the augmented estate. In re Estate of Myers, 256 Neb. 817, 594 N.W.2d 563 (1999).

This section does not make a distinction between specific and residuary beneficiaries; each beneficiary, regardless of whether it is a specific or residual beneficiary, must contribute proportionately, according to its interests, to the elective share. In re Estate of Ziegenbein, 2 Neb. App. 923, 519 N.W.2d 5 (1994).

30-2320. Omitted spouse.

(a) If a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate he would have received if the decedent left no will unless waived pursuant to section 30-2316.

(b) In satisfying a share provided by this section, the devises made by the will abate as provided in section 30-24,100.

Source:Laws 1974, LB 354, § 42, UPC § 2-301.

30-2321. Pretermitted children.

(a) If a testator fails to provide in his will for any of his children born or adopted after the execution of his will, the omitted child receives a share in the estate equal in value to that which he would have received if the testator had died intestate unless:

(1) it appears from the will that the omission was intentional;

(2) when the will was executed the testator had one or more children and devised substantially all his estate to the other parent of the omitted child; or

(3) the testator provided for the child by transfer outside the will in an amount equal to or greater than such child's share had the testator died intestate.

(b) If at the time of execution of the will the testator fails to provide in his will for a living child solely because he believes the child to be dead, the child receives a share in the estate equal in value to that which he would have received if the testator had died intestate.

Source:Laws 1974, LB 354, § 43, UPC § 2-302.

30-2322. Homestead allowance.

A surviving spouse of a decedent who was domiciled in this state is entitled to a homestead allowance of seven thousand five hundred dollars for a decedent who dies before January 1, 2011, and twenty thousand dollars for a decedent who dies on or after January 1, 2011. If there is no surviving spouse, each minor child and each dependent child of the decedent is entitled to a homestead allowance amounting to the amount allowed for a surviving spouse divided by the number of minor and dependent children of the decedent. The homestead allowance is exempt from and has priority over all claims against the estate except for costs and expenses of administration. Homestead allowance is in addition to any share passing to the surviving spouse or minor or dependent child by the will of the decedent unless otherwise provided therein, by intestate succession or by way of elective share.

Source:Laws 1974, LB 354, § 44, UPC § 2-401; Laws 1978, LB 650, § 4; Laws 1980, LB 981, § 1; Laws 2010, LB712, § 18.

30-2323. Exempt property.

(1) In addition to the homestead allowance, the surviving spouse of a decedent who was domiciled in this state is entitled from the estate to value not exceeding five thousand dollars for a decedent who dies before January 1, 2011, and twelve thousand five hundred dollars for a decedent who dies on or after January 1, 2011, in excess of any security interests therein in household furniture, automobiles, furnishings, appliances, and personal effects. If there is no surviving spouse, children of the decedent are entitled jointly to the same value unless the decedent has provided in his or her will that one or more of such children shall be disinherited, in which case only those children not so disinherited shall be so entitled. For purposes of this section, disinherited means providing in one's will that a child shall take nothing or a nominal amount of ten dollars or less from the estate.

(2) If encumbered chattels are selected and if the value in excess of security interests, plus that of other exempt property, is less than the amount allowed under subsection (1) of this section, or if there is not that amount worth of exempt property in the estate, the spouse or children are entitled to other assets of the estate, if any, to the extent necessary to make up the amount allowed under subsection (1) of this section. Rights to exempt property and assets needed to make up a deficiency of exempt property have priority over all claims against the estate except for costs and expenses of administration, except for claims filed by the Department of Health and Human Services pursuant to section 68-919 notwithstanding the order of payment established in section 30-2487, and except that the right to any assets to make up a deficiency of exempt property shall abate as necessary to permit prior payment of homestead allowance and family allowance.

(3) These rights are in addition to any benefit or share passing to the surviving spouse by the will of the decedent unless otherwise provided therein, by intestate succession, or by way of elective share. These rights are in addition to any benefit or share passing to the surviving children by intestate succession and are in addition to any benefit or share passing by the will of the decedent to those surviving children not disinherited unless otherwise provided in the will.

Source:Laws 1974, LB 354, § 45, UPC § 2-402; Laws 1978, LB 650, § 5; Laws 1980, LB 981, § 2; Laws 1999, LB 318, § 1; Laws 2010, LB712, § 19.

Annotations

This section creates a vested and indefeasible statutory right which may not be abrogated by will that accrues to the surviving spouse or the surviving children jointly if there is no surviving spouse upon the death of the testator. In re Estate of Peterson, 254 Neb. 334, 576 N.W.2d 767 (1998).

30-2324. Family allowance.

In addition to the right to homestead allowance and exempt property, if the decedent was domiciled in this state, the surviving spouse and minor children whom the decedent was obligated to support and children who were in fact being supported by him are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration, which allowance may not continue for longer than one year if the estate is inadequate to discharge allowed claims. The allowance may be paid as a lump sum or in periodic installments. It is payable to the surviving spouse, if living, for the use of the surviving spouse and minor and dependent children; otherwise to the children, or persons having their care and custody; but in case any minor child or dependent child is not living with the surviving spouse, the allowance may be made partially to the child or his guardian or other person having his care and custody, and partially to the spouse, as their needs may appear. The family allowance is exempt from and has priority over all claims except for costs and expenses of administration and the homestead allowance.

The family allowance is not chargeable against any benefit or share passing to the surviving spouse or children by the will of the decedent unless otherwise provided therein, by intestate succession, or by way of elective share. The death of any person entitled to family allowance, other than the surviving spouse, terminates his right to allowances not yet paid.

Source:Laws 1974, LB 354, § 46, UPC § 2-403; Laws 1978, LB 650, § 6.

Annotations

Under this section and section 30-2325, a right to allowances for homestead, exempt property, and unpaid spousal support survives the claimant's death to the extent of unpaid support. In re Estate of Stephenson, 243 Neb. 890, 503 N.W.2d 540 (1993).

The rights granted herein are specific, vested, and indefeasible and accrue to the recipient statutorily upon the decedent's death. In re Estate of Carman, 213 Neb. 98, 327 N.W.2d 611 (1982).

30-2325. Source, determination, and documentation.

If the estate is otherwise sufficient, property specifically devised is not used to satisfy rights to homestead and exempt property. Subject to this restriction, the surviving spouse, the guardians of the minor children, or children who are adults may select property of the estate as homestead allowance and exempt property. After giving such notice as the court may require in a proceeding initiated under the provisions of section 30-2405, the personal representative may make these selections if the surviving spouse, the children or the guardians of the minor children are unable or fail to do so within a reasonable time or if there are no guardians of the minor children. The personal representative may execute an instrument or deed of distribution to establish the ownership of property taken as homestead allowance or exempt property. The personal representative may determine the family allowance in a lump sum not exceeding nine thousand dollars for a decedent who dies before January 1, 2011, and twenty thousand dollars for a decedent who dies on or after January 1, 2011, or periodic installments not exceeding seven hundred fifty dollars per month for one year for a decedent who dies before January 1, 2011, and one thousand six hundred sixty-six dollars and sixty-seven cents per month for one year for a decedent who dies on or after January 1, 2011. The personal representative may disburse funds of the estate in payment of the family allowance and any part of the homestead allowance payable in cash. The personal representative or any interested person aggrieved by any selection, determination, payment, proposed payment, or failure to act under this section may petition the court for appropriate relief, which relief may provide a family allowance larger or smaller than that which the personal representative determined or could have determined.

The homestead allowance, the exempt property, and the family allowance as finally determined by the personal representative or by the court, shall vest in the surviving spouse as of the date of decedent's death, as a vested indefeasible right of property, shall survive as an asset of the surviving spouse's estate if unpaid on the date of death of such surviving spouse, and shall not terminate upon the death or remarriage of the surviving spouse.

Source:Laws 1974, LB 354, § 47, UPC § 2-404; Laws 1980, LB 981, § 3; Laws 2010, LB712, § 20.

Annotations

Under section 30-2324 and this section, a right to allowances for homestead, exempt property, and unpaid spousal support survives the claimant's death to the extent of unpaid support. In re Estate of Stephenson, 243 Neb. 890, 503 N.W.2d 540 (1993).

The rights granted herein are specific, vested, and indefeasible and accrue to the recipient statutorily upon the decedent's death. In re Estate of Carman, 213 Neb. 98, 327 N.W.2d 611 (1982).

30-2326. Who may make a will.

Any individual who is eighteen or more years of age or is not a minor and who is of sound mind may make a will and thereby dispose of personal and real property at and after death and prescribe, to the extent not otherwise controlled or limited by this code, the manner of administration of his estate and conduct of his affairs after death and until final settlement of his estate.

Source:Laws 1974, LB 354, § 48, UPC § 2-501.

30-2327. Execution.

Except as provided for holographic wills, writings within section 30-2338, and wills within section 30-2331, every will is required to be in writing signed by the testator or in the testator's name by some other individual in the testator's presence and by his direction, and is required to be signed by at least two individuals each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will.

Source:Laws 1974, LB 354, § 49, UPC § 2-502.

Annotations

A document purporting to be a will, which is otherwise sufficient, will satisfy the "writing" requirement of this section, whether it is completely handwritten; partly written in ink and partly in pencil; partly typewritten and partly printed; partly printed, partly typewritten, and partly written; or on a printed form, as well as other combinations of these forms and comparable permanent techniques of writing which substantively evidence testamentary intent. In re Estate of Pluhacek, 296 Neb. 528, 894 N.W.2d 325 (2017).

In order to be valid, a will must be signed by witnesses prior to the testator's death. In re Estate of Flicker, 215 Neb. 495, 339 N.W.2d 914 (1983).

Testamentary capacity is not an element of due execution. In re Estate of Flider, 213 Neb. 153, 328 N.W.2d 197 (1982).

An attesting witness need not probe into a testator's mental capacity prior to signing a will as a witness. In re Estate of Camin, 212 Neb. 490, 323 N.W.2d 827 (1982).

There is no requirement under this section that the acknowledgment of a testator's signature on a will be duly sworn or confirmed by oath or affirmation; rather, the two witnesses must witness either the signing of the will or the testator's acknowledgment of the signature. In re Estate of Loftus, 26 Neb. App. 439, 920 N.W.2d 718 (2018).

30-2328. Holographic will.

An instrument which purports to be testamentary in nature but does not comply with section 30-2327 is valid as a holographic will, whether or not witnessed, if the signature, the material provisions, and an indication of the date of signing are in the handwriting of the testator and, in the absence of such indication of date, if such instrument is the only such instrument or contains no inconsistency with any like instrument or if such date is determinable from the contents of such instrument, from extrinsic circumstances, or from any other evidence.

Source:Laws 1974, LB 354, § 50, UPC § 2-503; Laws 1980, LB 694, § 7.

Annotations

A decedent's handwritten initials, as opposed to his or her whole name, constitute a signature within the meaning of this section. In determining the validity of a holographic instrument, only the portion of the instrument actually in the handwriting of the testator is to be considered; all other language is to be disregarded. In re Estate of Foxley, 254 Neb. 204, 575 N.W.2d 150 (1998).

When the purposes for requiring a date on a holographic will can be satisfied, a holographic will dated by only a month and year substantially complies with this section. In re Estate of Wells, 243 Neb. 152, 497 N.W.2d 683 (1993).

A document which did not contain sufficient material provisions expressing testamentary and donative intent within the document itself could not be legally recognized as a valid holographic will. Absent a latent ambiguity, extrinsic evidence could not be considered to aid in that determination. In re Estate of Tiedeman, 25 Neb. App. 722, 912 N.W.2d 816 (2018).

A holographic will must contain sufficient material provisions, meaning words which express donative and testamentary intent. Donative intent relates to words reflecting specific bequests to particular beneficiaries, and testamentary intent concerns whether the document was intended to be a will. In re Estate of Tiedeman, 25 Neb. App. 722, 912 N.W.2d 816 (2018).

In determining the intent of the testator when he or she used controverted words in a holographic will, the court should place itself in the shoes of the testator, ascertain his or her intention, and enforce it, remembering at all times that the testator was unskilled in the field of will drafting. In re Estate of Matthews, 13 Neb. App. 812, 702 N.W.2d 821 (2005).

30-2329. Self-proved will.

(1) Any will may be simultaneously executed, attested, and made self-proved by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of this state or under the laws of the state where execution occurs and evidenced by the officer's certificate, under official seal, in form and content substantially as follows:

I, .......... the testator, sign my name to this instrument this ..... day of ..... 20...., and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my last will and that I sign it willingly or willingly direct another to sign for me, that I execute it as my free and voluntary act for the purposes therein expressed and that I am eighteen years of age or older or am not at this time a minor, and am of sound mind and under no constraint or undue influence.

Testator .................

We, .......... and .........., the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the testator signs and executes this instrument as his or her last will and that he or she signs it willingly or willingly directs another to sign for him or her, and that he or she executes it as his or her free and voluntary act for the purposes therein expressed, and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator's signing, and that to the best of his or her knowledge the testator is eighteen years of age or older or is not at this time a minor, and is of sound mind and under no constraint or undue influence.

Witness .................

Witness.................

THE STATE OF ...................................

COUNTY OF ......................................

Subscribed, sworn to, and acknowledged before me by .........., the testator, and subscribed and sworn to before me by .......... and .........., witnesses, this ..... day of ....... 20.... .

(SEAL) (Signed) .................................

(Official capacity of officer) ...................

The execution of the acknowledgment by the testator and the affidavits of the witnesses as provided for in this section shall be sufficient to satisfy the requirements of the signing of the will by the testator and the witnesses under section 30-2327.

(2) An attested will may at any time subsequent to its execution be made self-proved, by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of this state or under the laws of the state where execution occurs, and evidenced by the officer's certificate, under official seal, attached or annexed to the will in form and content substantially as follows:

THE STATE OF .....................................

COUNTY OF ........................................

We, .........., .........., and .........., the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as his or her last will and that he or she had signed willingly or directed another to sign for him or her, and that he or she executed it as his or her free and voluntary act for the purposes therein expressed; and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and that to the best of his or her knowledge the testator was at that time eighteen or more years of age or was not at that time a minor, and was of sound mind and under no constraint or undue influence.

Testator .......................

Witness ........................

Subscribed, sworn to, and acknowledged before me by .........., the testator, and subscribed and sworn to before me by .......... and .........., witnesses, this ..... day of ....... 20.... .

(SEAL) (Signed) .................................

(Official capacity of officer) ..................

Source:Laws 1974, LB 354, § 51, UPC § 2-504; Laws 1978, LB 650, § 7; Laws 2004, LB 813, § 10.

Annotations

Where a will complies with the provisions of this section, the signature requirements for execution are considered conclusively presumed. In re Estate of Stephens, 9 Neb. App. 68, 608 N.W.2d 201 (2000).

30-2330. Who may witness; interested witness; intestate share.

(a) Any individual generally competent to be a witness may act as a witness to a will.

(b) A will or any provision thereof is not invalid because the will is signed by an interested witness. Unless there is at least one disinterested witness to a will, an interested witness to a will is entitled to receive any property thereunder only to an amount or extent not exceeding that which is or would be the intestate share of such interested witness if the testator died intestate at the date of death.

Source:Laws 1974, LB 354, § 52, UPC § 2-505.

30-2331. Choice of law as to execution.

A written will is valid if executed in compliance with section 30-2327 or 30-2328 or if its execution complies with the law at the time of execution of the place where the will is executed or of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode or is a national.

Source:Laws 1974, LB 354, § 53, UPC § 2-506.

30-2332. Revocation by writing or by act.

A will or any part thereof is revoked

(1) by a subsequent will which, as is evident either from its terms or from competent evidence of its terms, revokes the prior will or part expressly or by inconsistency; or

(2) by being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in the presence of and by the direction of the testator.

Source:Laws 1974, LB 354, § 54, UPC § 2-507.

Annotations

In order to prove by parol evidence the subsequent execution of a will that revoked a prior will, that evidence must establish by clear and convincing evidence the requirements of proper execution as set out in section 30-2327. In re Estate of Thompson, 214 Neb. 899, 336 N.W.2d 590 (1983).

30-2333. Revocation by divorce or annulment; no revocation by other changes of circumstances.

(a) For purposes of this section:

(1) Beneficiary, as it relates to a trust beneficiary, includes a person who has any present or future interest, vested or contingent, and also includes the owner of an interest by assignment or other transfer; as it relates to a charitable trust, includes any person entitled to enforce the trust; and as it relates to a beneficiary of a beneficiary designation, refers to a beneficiary of an insurance or annuity policy, of an account with POD designation as defined in section 30-2716, of a security registered in beneficiary form, of a pension, profit-sharing, retirement, or similar benefit plan, or of any other nonprobate transfer at death;

(2) Beneficiary designated in a governing instrument includes a grantee of a deed, a beneficiary of a transfer on death deed, a transfer-on-death beneficiary, a beneficiary of a POD designation, a devisee, a trust beneficiary, a beneficiary of a beneficiary designation, a donee, appointee, or taker in default of a power of appointment, and a person in whose favor a power of attorney or a power held in any individual, fiduciary, or representative capacity is exercised;

(3) Disposition or appointment of property includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument;

(4) Divorce or annulment means any divorce or annulment, or any dissolution or declaration of invalidity of a marriage, that would exclude the spouse as a surviving spouse within the meaning of section 30-2353. A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section;

(5) Divorced individual includes an individual whose marriage has been annulled;

(6) Governing instrument means a deed, a will, a trust, an insurance or annuity policy, an account with POD designation, a security registered in beneficiary form, a transfer on death deed, a pension, profit-sharing, retirement, or similar benefit plan, an instrument creating or exercising a power of appointment or a power of attorney, or a dispositive, appointive, or nominative instrument of any similar type, which is executed by the divorced individual before the divorce or annulment of his or her marriage to his or her former spouse;

(7) Joint tenants with the right of survivorship and community property with the right of survivorship includes co-owners of property held under circumstances that entitle one or more to the whole of the property on the death of the other or others, but excludes forms of co-ownership registration in which the underlying ownership of each party is in proportion to that party's contribution;

(8) Payor means a trustee, an insurer, a business entity, an employer, a government, a governmental agency or subdivision, or any other person authorized or obligated by law or a governing instrument to make payments;

(9) Relative of the divorced individual's former spouse means an individual who is related to the divorced individual's former spouse by blood, adoption, or affinity and who, after the divorce or annulment, is not related to the divorced individual by blood, adoption, or affinity; and

(10) Revocable, with respect to a disposition, appointment, provision, or nomination, means one under which the divorced individual, at the time of the divorce or annulment, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of his or her former spouse or former spouse's relative, whether or not the divorced individual was then empowered to designate himself or herself in place of his or her former spouse or in place of his or her former spouse's relative and whether or not the divorced individual then had the capacity to exercise the power.

(b) For purposes of this section, subject to subsection (c) of this section, a person has knowledge of a fact if the person:

(1) Has actual knowledge of it;

(2) Has received a notice or notification of it; or

(3) From all the facts and circumstances known to the person at the time in question, has reason to know it.

(c) An organization that conducts activities through employees has notice or knowledge of a fact only from the time the information was received by an employee having responsibility to act for the organization, or would have been brought to the employee's attention if the organization had exercised reasonable diligence. An organization exercises reasonable diligence if it maintains reasonable routines for communicating significant information to the employee having responsibility to act for the organization and there is reasonable compliance with the routines. Reasonable diligence does not require an employee of the organization to communicate information unless the communication is part of the individual's regular duties or the individual knows a matter involving the organization would be materially affected by the information.

(d) Except as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce, or annulment, the divorce or annulment of a marriage:

(1) Revokes any revocable

(A) disposition or appointment of property made by a divorced individual to his or her former spouse in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the divorced individual's former spouse;

(B) provision in a governing instrument conferring a general or nongeneral power of appointment on the divorced individual's former spouse or on a relative of the divorced individual's former spouse; and

(C) nomination in a governing instrument, nominating a divorced individual's former spouse or a relative of the divorced individual's former spouse to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, conservator, agent, or guardian; and

(2) Severs the interests of the former spouses in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship, transforming the interests of the former spouses into equal tenancies in common.

(e) A severance under subdivision (d)(2) of this section does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the survivor of the former spouses unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property which are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership.

(f) Provisions of a governing instrument are given effect as if the former spouse and relatives of the former spouse disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the former spouse and relatives of the divorced individual's former spouse died immediately before the divorce or annulment.

(g) Provisions revoked solely by this section are revived by the divorced individual's remarriage to the former spouse or by a nullification of the divorce or annulment.

(h) No change of circumstances other than as described in this section and section 30-2354 effects a revocation.

(i)(1)(A) Except as provided in subdivision (i)(1)(B) of this section, a payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument affected by a divorce, annulment, or remarriage, or for having taken any other action in good faith reliance on the validity of the governing instrument, before the payor or other third party received written notice of or has knowledge of the divorce, annulment, or remarriage.

(B) Liability of a payor or other third party which is a financial institution making payment on a jointly owned account or to a beneficiary pursuant to the terms of a governing instrument on an account with a POD designation shall be governed by section 30-2732.

(C) A payor or other third party is liable for a payment made or other action taken after the payor or other third party received written notice of a claimed forfeiture, severance, or revocation under this section.

(2) Written notice of the divorce, annulment, or remarriage under subdivision (i)(1)(A) of this section must be mailed to the payor's or other third party's main office or home, be personally delivered to the payor or other third party, or, in the case of written notice to a person other than a financial institution, be delivered by such other means which establish that the person has knowledge of the divorce, annulment, or remarriage. Written notice to a financial institution with respect to a jointly owned account or an account with a POD designation shall be governed by section 30-2732.

(3) Upon receipt of written notice of the divorce, annulment, or remarriage, a payor or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court that has jurisdiction of the probate proceedings relating to the decedent's estate or, if no proceedings have been commenced, to or with the court that has jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence. The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement or transfer in accordance with the determination. Payments, transfers, or deposits made to or with the court discharge the payor or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.

(j)(1) A person who purchases property from a former spouse, a relative of a former spouse, or any other person for value and without notice, or who receives from a former spouse, a relative of a former spouse, or any other person a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment or the value of the item of property or benefit. But a former spouse, relative of a former spouse, or other person who, not for value, received a payment, an item of property, or any other benefit to which that person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section.

(2) If this section or any part of this section is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a former spouse, a relative of a former spouse, or any other person who, not for value, received a payment, an item of property, or any other benefit to which that person is not entitled under this section is obligated to return that payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted.

(k) If a former spouse has notice of the fact that he or she is a former spouse, then any receipt of property or money to which this section applies is received by the former spouse as a trustee for the person or persons who would be entitled to that property under this section.

Source:Laws 1974, LB 354, § 55, UPC § 2-508; Laws 2017, LB517, § 1.

30-2334. Revival of revoked will.

(a) If a second will which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by acts under section 30-2332, the first will is revoked in whole or in part unless it is evident from the circumstances of the revocation of the second will or from testator's contemporary or subsequent declarations that he intended the first will to take effect as executed.

(b) If a second will which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by a third will, the first will is revoked in whole or in part, except to the extent it appears from the terms of the third will that the testator intended the first will to take effect.

Source:Laws 1974, LB 354, § 56, UPC § 2-509.

30-2335. Incorporation by reference.

Any writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.

Source:Laws 1974, LB 354, § 57, UPC § 2-510.

30-2336. Property owned at death and acquired by estate.

A will may provide for the passage of all property the testator owns at death and all property acquired by the estate after the testator's death.

Source:Laws 2020, LB966, § 13.

30-2337. Events of independent significance.

A will may dispose of property by reference to acts and events which have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator's death. The execution or revocation of a will of another individual is such an event.

Source:Laws 1974, LB 354, § 59, UPC § 2-512.

30-2338. Separate writing identifying bequest of tangible property.

Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money, evidences of indebtedness, documents of title, and securities, and property used in trade or business. To be admissible under this section as evidence of the intended disposition, the writing must have an indication of the date of the writing or signing and, in the absence of such indication of date, be the only such writing or contain no inconsistency with any other like writing or permit determination of such date of writing or signing from the contents of such writing, from extrinsic circumstances, or from any other evidence, must either be in the handwriting of the testator or be signed by him or her, and must describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing which has no significance apart from its effect upon the disposition made by the will.

Source:Laws 1974, LB 354, § 60, UPC § 2-513; Laws 1980, LB 694, § 8.

30-2339. Requirement that devisee survive testator by one hundred twenty hours.

A devisee who does not survive the testator by one hundred twenty hours is treated as if he predeceased the testator, unless the will of the testator contains some language dealing explicitly with simultaneous deaths or deaths in a common disaster, or requiring that the devisee survive the testator or survive the testator for a stated period in order to take under the will.

Source:Laws 1974, LB 354, § 61, UPC § 2-601.

30-2340. Choice of law as to meaning and effect of wills.

The meaning and legal effect of a disposition in a will shall be determined by the local law of a particular state selected by the testator in his instrument unless the application of that law is contrary to the provisions relating to the elective share described in part 2 of this article, the provisions relating to exempt property and allowances described in part 4 of this article, or any other public policy of this state otherwise applicable to the disposition.

Source:Laws 1974, LB 354, § 62, UPC § 2-602.

30-2341. Rules of construction and intention.

The intention of a testator as expressed in his will controls the legal effect of his dispositions. The rules of construction expressed in the succeeding sections of this part apply unless a contrary intention is indicated by the will.

Source:Laws 1974, LB 354, § 63, UPC § 2-603.

Annotations

The intention of a testator as expressed in her will controls the legal effect of her dispositions. In re Estate of Akerson, 309 Neb. 470, 960 N.W.2d 719 (2021).

The cardinal rule in construing a will is to ascertain and effectuate the testator's intent if such intent is not contrary to the law. In re Estate of Barger, 303 Neb. 817, 931 N.W.2d 660 (2019).

30-2342. General residuary clause; construction that will passes all property; after-acquired property.

Except as provided in section 30-2348, a general residuary clause in a will or a will making general disposition of all of the property of the testator is construed to pass all property which the testator owns at his death including property acquired after the execution of the will.

Source:Laws 1974, LB 354, § 64, UPC § 2-604.

30-2342.01. Gift for benevolent purpose; validity; court; powers; notice to Attorney General.

(a) Except as otherwise provided in subsection (d) of this section, no gift, devise, or endowment for religious, educational, charitable, or benevolent purposes, which in other respects is valid under the laws of this state, shall be invalid or fail by reason of the indefiniteness or uncertainty of the recipient of the gift, devise, or endowment or by reason that it is or has become unlawful, impracticable, impossible to achieve, or wasteful.

(b) The court, on application of any interested person or the Attorney General may determine and order an administration or distribution of the gift, devise, or endowment in a manner as consistent as possible with the intent expressed in the document creating the gift, devise, or endowment. This section shall not be deemed to limit application of the common law doctrines of cy pres and deviation or of section 58-615.

(c) In an application for relief under this section which is not brought by the Attorney General, notice of the proceeding shall be given to the Attorney General as a representative for the charitable interests involved.

(d) Subsection (a) of this section shall not apply if the document creating the gift, devise, or endowment expressly provides for an alternate disposition of the gift, devise, or endowment in the event the gift, devise, or endowment has become unlawful, impracticable, impossible to achieve, or wasteful. A general residuary devise by will shall not be considered an express provision for an alternate disposition.

(e) Any gift, devise, or endowment to a trust with charitable purposes as described in section 30-3831 shall be governed by section 30-3839.

Source:Laws 2010, LB758, § 2.

Annotations

Pursuant to subsection (a) of this section, no gift or devise for charitable or benevolent purposes shall be invalid or fail by reason that it is impossible to achieve. In re Estate of Akerson, 309 Neb. 470, 960 N.W.2d 719 (2021).

Pursuant to subsection (b) of this section, the court may determine and order an administration or distribution of the gift or devise in a manner as consistent as possible with the intent expressed in the document. In re Estate of Akerson, 309 Neb. 470, 960 N.W.2d 719 (2021).

30-2342.02. Terms relating to federal estate and generation-skipping transfer taxes; how construed.

(1) A will or trust of a decedent who dies after December 31, 2009, and before January 1, 2011, that contains a formula referring to the "unified credit", "estate tax exemption", "applicable exemption amount", "applicable credit amount", "applicable exclusion amount", "generation-skipping transfer tax exemption", "GST exemption", "marital deduction", "maximum marital deduction", or "unlimited marital deduction", or that measures a share of an estate or trust based on the amount that can pass free of federal estate tax or the amount that can pass free of federal generation-skipping transfer tax, or that is otherwise based on a similar provision of federal estate or generation-skipping transfer tax law, shall be deemed to refer to the federal estate and generation-skipping transfer tax laws as they applied with respect to estates of decedents dying on December 31, 2009.

(2) This section does not apply:

(a) If the decedent dies on a date on which there is a then-applicable federal estate or generation-skipping transfer tax; or

(b) With respect to a will or trust that is executed or amended after December 31, 2009, or that manifests an intent that a contrary rule apply if the decedent dies on a date on which there is no then-applicable federal estate or generation-skipping transfer tax.

(3) The personal representative or any affected beneficiary under the will or trust may bring a proceeding to determine whether the decedent intended that the references under subsection (1) of this section be construed with respect to the law as it existed after December 31, 2009. Such a proceeding shall be commenced within twelve months after the death of the decedent.

Source:Laws 2010, LB1047, § 1.

30-2343. Anti-lapse; deceased devisee; class gifts.

If a devisee related to the testator in any degree of kinship is dead at the time of execution of the will, fails to survive the testator, or is treated as if he predeceased the testator, the issue of the deceased devisee who survive the testator by one hundred twenty hours take in place of the deceased devisee and if they are all of the same degree of kinship to the devisee they take equally, but if of unequal degree then those of more remote degree take by representation. One who would have been a devisee under a class gift if he had survived the testator is treated as a devisee for purposes of this section whether his death occurred before or after the execution of the will.

Source:Laws 1974, LB 354, § 65, UPC § 2-605.

Annotations

Nothing in this section or subsection (b) of section 30-2344 places any limitation upon the estate which passes to the issue of a deceased devisee by operation of this section. In re Estate of Eickmeyer, 262 Neb. 17, 628 N.W.2d 246 (2001).

30-2344. Failure of testamentary provision.

(a) Except as provided in section 30-2343, if a devise other than a residuary devise fails for any reason, it becomes a part of the residue.

(b) Except as provided in section 30-2343, if the residue is devised to two or more persons and the share of one of the residuary devisees fails for any reason, his share passes to the other residuary devisee, or to other residuary devisees in proportion to their interests in the residue.

Source:Laws 1974, LB 354, § 66, UPC § 2-606.

Annotations

The term "other residuary devisee" in subsection (b) of this section includes residuary devisees specifically named in the will and those who take in their place by operation of section 30-2343. Nothing in section 30-2343 or subsection (b) of this section places any limitation upon the estate which passes to the issue of a deceased devisee by operation of section 30-2343. In re Estate of Eickmeyer, 262 Neb. 17, 628 N.W.2d 246 (2001).

30-2345. Change in securities; accessions; nonademption.

(a) If the testator intended a specific devise of certain securities rather than the equivalent value thereof, the specific devisee is entitled only to:

(1) as much of the devised securities as is a part of the estate at the time of the testator's death;

(2) any additional or other securities of the same entity owned by the testator by reason of action entered into or initiated by the entity excluding any acquired by exercise of purchase options;

(3) securities of another entity owned by the testator as a result of a merger, consolidation, reorganization or other similar action entered into or initiated by the entity; and

(4) any additional securities of the entity owned by the testator as a result of a plan of reinvestment if it is a regulated investment company.

(b) Distributions prior to death with respect to a specifically devised security not provided for in subsection (a) are not part of the specific devise.

Source:Laws 1974, LB 354, § 67, UPC § 2-607.

30-2346. Nonademption of specific devises in certain cases; sale by conservator; unpaid proceeds of sale, condemnation, or insurance.

(a) If specifically devised property is sold by a conservator or guardian, or if a condemnation award or insurance proceeds are paid to a conservator or guardian as a result of condemnation, fire, or casualty, the specific devisee has the right to a general pecuniary devise equal to the net sale price, the condemnation award, or the insurance proceeds. This subsection does not apply if, subsequent to the sale, condemnation, or casualty, it is adjudicated that the disability of the testator has ceased and the testator survives the adjudication by one year. The right of the specific devisee under this subsection is reduced by any right he has under subsection (b).

(b) A specific devisee has the right to the remaining specifically devised property and:

(1) any balance of the purchase price (together with any security interest) owing from a purchaser to the testator at death by reason of sale of the property;

(2) any amount of a condemnation award for the taking of the property unpaid at death;

(3) any proceeds unpaid at death on fire or casualty insurance on the property; and

(4) property owned by testator at his death as a result of foreclosure, or obtained in lieu of foreclosure, of the security for a specifically devised obligation.

Source:Laws 1974, LB 354, § 68, UPC § 2-608.

Annotations

This section does not create an exception to the common-law rule of implied revocation when property is sold by an attorney in fact under a durable power of attorney. In re Estate of Bauer, 270 Neb. 91, 700 N.W.2d 572 (2005).

Where a testator has, during his lifetime, sold specifically devised property and, at his death, an unpaid balance remains owing to him from the sale, the beneficiary of the specific bequest is entitled to receive the unpaid balance. In re Estate of McClow, Reed v. McClow, 205 Neb. 739, 290 N.W.2d 186 (1980).

When a conservator or guardian, not the testator, sells specifically devised property during the testator's lifetime, no ademption occurs. The proceeds of the sale are not included in the testator's residuary estate, but, rather, are given to the specific devisee to honor the specific devise. In re Guardianship & Conservatorship of Mueller, 23 Neb. App. 430, 872 N.W.2d 906 (2015).

30-2347. Nonexoneration.

A specific devise passes subject to any security interest existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts.

Source:Laws 1974, LB 354, § 69, UPC § 2-609.

30-2348. Exercise of power of appointment.

A general residuary clause in a will, or a will making general disposition of all of the testator's property, does not exercise a power of appointment held by the testator unless specific reference is made to the power or there is some other indication of intention to include the property subject to the power.

Source:Laws 1974, LB 354, § 70, UPC § 2-610.

30-2349. Construction of generic terms to accord with relationships as defined for intestate succession.

Halfbloods, adopted individuals and individuals born out of wedlock are included in class gift terminology and terms of relationship in accordance with rules for determining relationships for purposes of intestate succession.

Source:Laws 1974, LB 354, § 71, UPC § 2-611.

30-2350. Ademption by satisfaction.

Property which a testator gave in his lifetime to a person is treated as a satisfaction of a devise to that person in whole or in part only if the will provides for deduction of the lifetime gift, or the testator declares in a writing contemporaneous with the gift that it is to be deducted from the devise or is in satisfaction of the devise, or the devisee acknowledges in a writing contemporaneous with the gift that it is in satisfaction. For purpose of partial satisfaction, property given during lifetime is valued as of the time the devisee came into possession or enjoyment of the property or as of the time of death of the testator, whichever occurs first.

Source:Laws 1974, LB 354, § 72, UPC § 2-612.

Annotations

Ademption by satisfaction is provided only for the devisees of a will, and if a devise is made by a will to a trust or trustee, the trust or trustee is the devisee and the beneficiaries of the trust are not devisees and ademption does not apply. In re Estate of Radford, 304 Neb. 205, 933 N.W.2d 595 (2019).

A donor may express in the gift that the gift is an advancement. In re Estate of McFayden, 235 Neb. 214, 454 N.W.2d 676 (1990).

This section does not permit the use of parol evidence to prove that a testator or testatrix intended an inter vivos gift to be an advancement toward, or ademptive of, a devise in the testator's or testatrix's will. In re Estate of McFayden, 235 Neb. 214, 454 N.W.2d 676 (1990).

This section eliminates as proof a written blanket declaration that future inter vivos gifts to a devisee are to be considered advancements. In re Estate of McFayden, 235 Neb. 214, 454 N.W.2d 676 (1990).

30-2351. Contracts concerning succession.

A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after January 1, 1977, can be established only by (1) provisions of a will stating material provisions of the contract; (2) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or (3) a writing signed by the decedent evidencing the contract. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.

Source:Laws 1974, LB 354, § 73, UPC § 2-701.

Annotations

The only way to prove the existence of a contract to make a will or not to revoke a will or devise is by producing a will or signed writing in satisfaction of one of the three subsections of this section. Johnson v. Anderson, 278 Neb. 500, 771 N.W.2d 565 (2009).

For the purposes of this section, an oral contract is "executed" at such time as the parties become bound to each other for the performance of the terms of the agreement. In re Estate of Nicholson, 211 Neb. 805, 320 N.W.2d 739 (1982).

30-2352. Renunciation of succession.

(a)(1) A person (or the representative of a deceased, incapacitated, or protected person) who is an heir, devisee, person succeeding to a renounced interest, donee, beneficiary under a testamentary or nontestamentary instrument, donee of a power of appointment, grantee, surviving joint owner or surviving joint tenant, beneficiary, or owner of an insurance contract or any incident of ownership therein, beneficiary or person designated to take pursuant to a power of appointment exercised by a testamentary or nontestamentary instrument, person who has a statutory entitlement to or election with respect to property pursuant to the Nebraska Probate Code, designated beneficiary of a transfer on death deed, or recipient of any beneficial interest under any testamentary or nontestamentary instrument, may renounce in whole or in part, or with reference to specific parts, fractional shares, undivided portions or assets thereof, by filing a written instrument of renunciation within the time and at the place hereinafter provided.

(2) The instrument shall (i) describe the property or part thereof or the interest therein renounced, (ii) be signed and acknowledged by the person renouncing in the manner provided for in the execution of deeds of real estate, (iii) declare the renunciation and the extent thereof, and (iv) declare that the renunciation is an irrevocable and unqualified refusal to accept the renounced interest.

(3) The appropriate court in a proceeding under section 30-3812, may direct or permit a trustee under a testamentary or nontestamentary instrument to renounce any restriction on or power of administration, management, or allocation of benefit upon finding that such restrictions on the exercise of such power may defeat or impair the accomplishment of the purposes of the trust whether by the imposition of tax or the allocation of beneficial interest inconsistent with such purposes or by other reason. Such authority shall be exercised after hearing and upon notice to qualified beneficiaries as defined in section 30-3803, in the manner directed by the court.

(b) The instrument specified in (a)(1) and (a)(2) must be received by the transferor of the interest, his or her legal representative, the personal representative of a deceased transferor, the trustee of any trust in which the interest being renounced exists, or the holder of the legal title to the property to which the interest relates. To be effective for purposes of determining inheritance and estate taxes under articles 20 and 21 of Chapter 77, the instrument must be received not later than the date which is nine months after the later of (i) the date on which the transfer creating the interest in such person is made, or (ii) the date on which such person attains age twenty-one. If the circumstances which establish the right of a person to renounce an interest arise as a result of the death of an individual, the instrument shall also be filed in the court of the county where proceedings concerning the decedent's estate are pending, or where they would be pending if commenced. If an interest in real estate is renounced, a copy of the instrument shall also be recorded in the office of the register of deeds in the county in which the real estate lies. No person entitled to a copy of the instrument shall be liable for any proper distribution or disposition made without actual notice of the renunciation and no such person making a proper distribution or disposition in reliance upon the renunciation shall be liable for any such distribution or disposition in the absence of actual notice that an action has been instituted contesting the validity of the renunciation.

(c) Unless the transferor of the interest has otherwise indicated in the instrument creating the interest, the interest renounced, and any future interest which is to take effect in possession or enjoyment at or after the termination of the interest renounced, passes as if the person renouncing had predeceased the decedent or had died prior to the date on which the transfer creating the interest in such person is made, as the case may be, if the renunciation is within the time periods set forth in subsection (b) and if not within such time periods the interest renounced, and any future interest which is to take effect in possession or enjoyment at or after the termination of the interest renounced, passes as if the person renouncing had died on the date the interest was renounced. The person renouncing shall have no power to direct how the interest being renounced shall pass, except that the renunciation of an interest for which the right to renounce was established by the death of an individual shall, in the case of the spouse of the decedent, relate only to that statutory provision or that provision of the instrument creating the interest being renounced and shall not preclude the spouse from receiving the benefits of the renounced interest which may be derived as a result of the renounced interest passing pursuant to other statutory provisions or pursuant to other provisions of the instrument creating the interest unless such further benefits are also renounced. In every case when the renunciation is within the time periods set forth in subsection (b) the renunciation relates back for all purposes to the date of death of the decedent or the date on which the transfer creating the interest in such person is made, as the case may be.

(d) Any (1) assignment, conveyance, encumbrance, pledge, or transfer of property therein or any contract therefor, (2) written waiver of the right to renounce or any acceptance of property or benefits therefrom or an interest therein by an heir, devisee, person succeeding to a renounced interest, donee, beneficiary under a testamentary or nontestamentary instrument, donee of a power of appointment, grantee, surviving joint owner or surviving joint tenant, beneficiary or owner of an insurance contract or any incident of ownership therein, beneficiary or person designated to take pursuant to a power of appointment exercised by a testamentary or nontestamentary instrument, person who has a statutory entitlement to or election with respect to property pursuant to the Nebraska Probate Code, or recipient of any beneficial interest under any testamentary or nontestamentary instrument, or (3) sale or other disposition of property pursuant to judicial process, made within the time periods set forth in subsection (b) shall not bar the right to renounce, but shall make a subsequent renunciation within the time period set forth in subsection (b) of this section ineffective for purposes of determination of inheritance taxes under article 20 of Chapter 77. Any renunciation made after any part of the property has been assigned, conveyed, encumbered, pledged, or transferred is ineffective for the portion of the property which has previously been assigned, conveyed, encumbered, pledged, or transferred.

(e) Within thirty days of receipt of a written instrument of renunciation by the transferor of the interest, his or her legal representative, the personal representative of the decedent, the trustee of any trust in which the interest being renounced exists, or the holder of the legal title to the property to which the interest relates, as the case may be, such person shall attempt to notify in writing those persons who are known or ascertainable with reasonable diligence who shall be recipients or potential recipients of the renounced interest of the renunciation and the interest or potential interest such recipient shall receive as a result of the renunciation.

(f) The right to renounce granted by this section exists irrespective of any limitation on the interest of the person renouncing in the nature of a spendthrift provision or similar restriction. A trust beneficiary whose interest is subject to any limitation in the nature of a spendthrift provision or similar restriction may assign, sell, or otherwise convey such interest or any part thereof upon a finding by a court in a proceeding under section 30-3812 that the rights of other beneficiaries would not be impaired and that such assignment, sale, or other conveyance would not result in any substantial benefit to nonbeneficiaries of the trust at the expense of the trust or trust beneficiaries. Such finding may be made after hearing and upon notice to all known persons beneficially interested in such trust, in the manner directed by the court.

(g) This section does not abridge the right of any person to assign, convey, release, or renounce any property arising under any other section of this code or other statute.

(h) Any interest in property which exists on July 19, 1980, may be renounced after July 19, 1980, as provided herein. An interest which has arisen prior to July 19, 1980, in any person other than the person renouncing is not destroyed or diminished by any action of the person renouncing taken under this section.

Source:Laws 1974, LB 354, § 74, UPC § 2-801; Laws 1978, LB 650, § 35; Laws 1980, LB 694, § 9; Laws 2003, LB 130, § 127; Laws 2012, LB536, § 24.

Annotations

A renunciation properly effected pursuant to this section and prior to distribution is not a transfer and therefore not a fraudulent transfer under the Uniform Fraudulent Transfer Act, sections 36-701 to 36-712. Essen v. Gilmore, 259 Neb. 55, 607 N.W.2d 829 (2000).

An exception to the general rule that a renunciation relates back "for all purposes" exists for individuals depriving themselves of any property whatsoever for purposes of qualifying for public assistance. Hoesly v. State, 243 Neb. 304, 498 N.W.2d 571 (1993).

There is nothing inconsistent in making claim to the whole of an estate and at the same time accepting something less than the whole under the will since property comprising a bequest of only a part of an estate would be included within a claim to the entire estate. Consequently, the claimant had no reason to renounce the will under the terms of this section. In re Estate of Nicholson, 211 Neb. 805, 320 N.W.2d 739 (1982).

30-2353. Effect of divorce, annulment, and decree of separation.

(a) An individual who is divorced from the decedent or whose marriage to the decedent has been dissolved or annulled by a decree that has become final is not a surviving spouse unless, by virtue of a subsequent marriage, he or she is married to the decedent at the time of death. A decree of separation which does not terminate the status of husband and wife is not a divorce for purposes of this section.

(b) For purposes of parts 1, 2, 3, and 4 of this article and of section 30-2412, a surviving spouse does not include:

(1) an individual who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment or dissolution of their marriage, which decree or judgment is not recognized as valid in this state, unless they subsequently participate in a marriage ceremony purporting to marry each to the other, or subsequently live together as man and wife;

(2) an individual who, following an invalid decree or judgment of divorce or annulment or dissolution of marriage obtained by the decedent, participates in a marriage ceremony with a third individual; or

(3) an individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights against the decedent.

Source:Laws 1974, LB 354, § 75, UPC § 2-802; Laws 2017, LB517, § 2.

Annotations

Pursuant to subsection (b)(3) of this section, a person is not a surviving spouse only if the order includes language purporting to terminate all marital property rights against the decedent. In re Estate of Pfeiffer, 265 Neb. 498, 658 N.W.2d 14 (2003).

Prior to the amendment of section 42-372 to provide that the decree is final upon the death of one of the parties to the dissolution, if one of the parties to a decree of dissolution of marriage died during the 6-month period before which the decree is final under section 42-372, then the dissolution decree was nonoperative and the other party was a surviving spouse under the Nebraska Probate Code. In re Estate of Watson, 217 Neb. 305, 348 N.W.2d 856 (1984).

Nebraska Probate Code did not govern definition of "lawful spouse" for purposes of federal statute governing servicemen's group life insurance policy. Under federal statute legal status of alleged spouse must be determined at a particular point in time, while section of probate code defining "surviving spouse" does not define status at time of a spouse's death, but instead limits rights of one lawfully married to decedent to share in decedent's estate after his death. Prudential Ins. Co. of America v. Dulek, 504 F.Supp. 1015 (D. Neb. 1980).

30-2354. Effect of homicide on intestate succession, wills, joint assets, life insurance, and beneficiary designations.

(a) A surviving spouse, heir or devisee who feloniously and intentionally kills or aids and abets the killing of the decedent is not entitled to any benefits under the will or under this article, and the estate of the decedent passes as if such spouse, heir, or devisee had predeceased the decedent. Property appointed by the will of the decedent to or for the benefit of such devisee passes as if the devisee had predeceased the decedent.

(b) Any joint tenant who feloniously and intentionally kills or aids and abets the killing of another joint tenant thereby effects a severance of the interest of the decedent so that the share of the decedent passes as his property and such joint tenant has no rights by survivorship. This provision applies to joint tenancies and tenancies by the entirety in real and personal property, joint accounts in banks, savings and loan associations, credit unions and other institutions, and any other form of co-ownership with survivorship incidents.

(c) A named beneficiary of a bond, life insurance policy, or other contractual arrangement who feloniously and intentionally kills or aids and abets the killing of the principal obligee or the individual upon whose life the policy is issued is not entitled to any benefit under the bond, policy or other contractual arrangement, and it becomes payable as though such beneficiary has predeceased the decedent.

(d) Real property specified for a designated beneficiary of a transfer on death deed who feloniously and intentionally kills or aids and abets the killing of the transferor who signed the transfer on death deed or any other owner of the real property shall pass as if the designated beneficiary had predeceased the transferor.

(e) Any other acquisition of property or interest by the killer or by one who aids and abets the killer is treated in accordance with the principles of this section.

(f) A final judgment of conviction of felonious and intentional killing or aiding and abetting therein is conclusive for purposes of this section. In the absence of a conviction of felonious and intentional killing or aiding and abetting therein, the court may determine by a preponderance of evidence whether the killing or aiding and abetting therein was felonious and intentional for purposes of this section.

(g) This section does not affect the rights of any person who, before rights under this section have been adjudicated, purchases, from the killer or aider and abettor for value and without notice, property which the killer or aider and abettor would have acquired except for this section, but the killer or aider and abettor is liable for the amount of the proceeds or the value of the property. Any insurance company, bank, or other obligor making payment according to the terms of its policy or obligation is not liable by reason of this section unless prior to payment it has received at its home office or principal address written notice of a claim under this section.

Source:Laws 1974, LB 354, § 76, UPC § 2-803; Laws 2012, LB536, § 25.

Annotations

An acquittal on a charge of murder is the absence of a conviction for purposes of this section. In re Estate of Krumwiede, 264 Neb. 378, 647 N.W.2d 625 (2002).

In probate proceedings which do not raise equitable matters, an appellate court reviews the decision of the county court for errors appearing on the record and does not conduct a de novo review of the facts. In re Estate of Krumwiede, 264 Neb. 378, 647 N.W.2d 625 (2002).

An action to vacate a decree of dissolution for fraud survives the death of a party whose death is the result of a homicide committed by the other party to the proceeding. Howsden v. Rolenc, 219 Neb. 16, 360 N.W.2d 680 (1985).

30-2355. Deposit of will with court in testator's lifetime.

A will may be deposited by the testator or his agent with the court having jurisdiction of the county of his residence for safekeeping, under rules of the court. The will shall be kept confidential. During the testator's lifetime a deposited will shall be delivered only to him or to a person authorized in writing signed by him to receive the will. A conservator or guardian may be allowed to examine a deposited will of a protected testator under procedures designed to maintain the confidential character of the will to the extent possible, and to assure that it will be resealed and left on deposit after the examination. Upon being informed of the testator's death, the court shall notify any person designated to receive the will and deliver it to him on request; or the court may deliver the will to some other appropriate court.

Source:Laws 1974, LB 354, § 77, UPC § 2-901.

30-2356. Duty of custodian of will; liability.

After the death of a testator and on request of an interested person, any person having custody of a will of the testator is required to deliver it with reasonable promptness to a person able to secure its probate and, if none is known, to an appropriate court. Any person who willfully fails to deliver a will is liable to any person aggrieved for the damages which may be sustained by the failure. Any person who willfully refuses or fails to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to penalty for contempt of court.

Source:Laws 1974, LB 354, § 78, UPC § 2-902.

30-2401. Devolution of estate at death; restrictions.

The power of a person to leave property by will, and the rights of creditors, devisees, and heirs to his property are subject to the restrictions and limitations contained in this code to facilitate the prompt settlement of estates. Upon the death of a person, his real and personal property devolves to the persons to whom it is devised by his last will or to those indicated as substitutes for them in cases involving lapse, renunciation, or other circumstances affecting the devolution of testate estate or, in the absence of testamentary disposition, to his heirs, or to those indicated as substitutes for them in cases involving renunciation or other circumstances affecting devolution of intestate estates, subject to homestead allowance, exempt property and family allowance, to rights of creditors, elective share of the surviving spouse, and to administration.

Source:Laws 1974, LB 354, § 79, UPC § 3-101.

Annotations

In Nebraska, title to both real and personal property passes immediately upon death to the decedent's devisees or heirs, subject to administration, allowances, and a surviving spouse's elective share. In re Estate of Akerson, 309 Neb. 470, 960 N.W.2d 719 (2021).

In Nebraska, title to both real and personal property passes immediately upon death to the decedent's devisees or heirs, subject to administration, allowances, and a surviving spouse's elective share. Wilson v. Fieldgrove, 280 Neb. 548, 787 N.W.2d 707 (2010).

This section does not create an absolute right in the heir of a deceased person whose estate is being administered to sue to recover property alleged to be a part of the estate, in derogation of those interests to which the potential rights of the heir are subordinate, including the rights of creditors and the orderly administration of the decedent's estate. Beachy v. Becerra, 259 Neb. 299, 609 N.W.2d 648 (2000).

30-2402. Necessity of order of probate for will; certified; evidence.

Except as provided in sections 30-24,125 and 30-24,129, to be effective to prove the transfer of any property or to nominate an executor, a will must be declared to be valid by an order of informal probate by the registrar or an adjudication of probate by the court, except that a duly executed and unrevoked will which has not been probated may be admitted as evidence of a devise if (1) no court proceeding concerning the succession or administration of the estate has occurred and (2) either the devisee or his or her successors and assigns possessed the property devised in accordance with the provisions of the will, or the property devised was not possessed or claimed by anyone by virtue of the decedent's title during the time period for testacy proceedings. Every will, when proved as provided in the Nebraska Probate Code, shall have a certificate of such proof endorsed thereon or annexed thereto, signed by the registrar, judge, or clerk magistrate of the county court and attested by the seal of the court. Every will so certified, and the record thereof, or a transcript of such record, certified by the judge or clerk magistrate of the county court and attested by the seal of the court, may be read in evidence in all courts of this state without further proof. An affidavit executed pursuant to section 30-24,129 prior to September 1, 2001, is valid and effective to prove such transfer.

Source:Laws 1974, LB 354, § 80, UPC § 3-102; Laws 1986, LB 529, § 47; Laws 2001, LB 489, § 10.

30-2403. Necessity of appointment for administration.

Except as otherwise provided in article 25, to acquire the powers and undertake the duties and liabilities of a personal representative of a decedent, a person must be appointed by order of the court or registrar, qualify and be issued letters. Administration of an estate is commenced by the issuance of letters.

Source:Laws 1974, LB 354, § 81, UPC § 3-103.

Annotations

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).

30-2404. Claims against decedent; necessity of administration.

No proceeding to enforce a claim against the estate of a decedent or his successors may be revived or commenced before the appointment of a personal representative. After the appointment and until distribution, all proceedings and actions to enforce a claim against the estate are governed by the procedure prescribed by this article. After distribution a creditor whose claim has not been barred may recover from the distributees as provided in section 30-24,118 or from a former personal representative individually liable as provided in section 30-24,119. This section has no application to a proceeding by a secured creditor of the decedent to enforce his right to his security except as to any deficiency judgment which might be sought therein.

Source:Laws 1974, LB 354, § 82, UPC § 3-104.

Annotations

An otherwise valid amended complaint, filed after a complaint filed prematurely under this section but after the appointment or reappointment of a personal representative, is sufficient to commence a proceeding within the meaning of section 30-2486(2). Sparks v. Mach, 314 Neb. 724, 993 N.W.2d 119 (2023).

Under this section, a claim against a decedent's estate cannot be commenced before the county court has appointed a personal representative. Sparks v. Mach, 314 Neb. 724, 993 N.W.2d 119 (2023).

The mere filing of a claim with a probate court does not constitute commencement of a proceeding to enforce a claim. Lenners v. St. Paul Fire & Marine Ins. Co., 18 Neb. App. 772, 793 N.W.2d 357 (2010).

30-2405. Proceedings affecting devolution and administration; jurisdiction of subject matter.

Persons interested in decedents' estates may apply to the registrar for determination in the informal proceedings provided in this article, and may petition the court for orders in formal proceedings within the court's jurisdiction including but not limited to those described in this article. The court has jurisdiction of all proceedings to determine how decedents' estates subject to the laws of this state are to be administered, expended and distributed.

Source:Laws 1974, LB 354, § 83, UPC § 3-105.

Annotations

This section was designed to give probate courts of limited jurisdiction broad concurrent jurisdiction with courts of general jurisdiction. Eagle Partners v. Rook, 301 Neb. 947, 921 N.W.2d 98 (2018).

During an estate proceeding, where the probate court is petitioned pursuant to this section to settle "demands or disputes regarding title of a decedent . . . to specific assets alleged to be included in the estate," as provided in section 30-2209(4), the probate court shall determine the relief sought only after providing notice and appropriate due process to other persons claiming, or having an interest in, such assets. In re Estate of Chaney, 232 Neb. 121, 439 N.W.2d 764 (1989).

30-2406. Proceedings within the exclusive jurisdiction of court; service; jurisdiction over persons.

In proceedings within the jurisdiction of the court where notice is required by this code or by rule, interested persons may be bound by the orders of the court in respect to property in or subject to the laws of this state by notice in conformity with section 30-2220. An order is binding as to all who are given notice of the proceeding though less than all interested persons are notified.

Source:Laws 1974, LB 354, § 84, UPC § 3-106.

30-2407. Scope of proceedings; proceedings independent; exception.

Unless supervised administration as described in part 5 is involved, (1) each proceeding before the court or registrar is independent of any other proceeding involving the same estate; (2) petitions for formal orders of the court may combine various requests for relief in a single proceeding if the orders sought may be finally granted without delay. Except as required for proceedings which are particularly described by other sections of this article, no petition is defective because it fails to embrace all matters which might then be the subject of a final order; (3) proceedings for probate of wills or adjudications of no will may be combined with proceedings for appointment of personal representatives; and (4) a proceeding for appointment of a personal representative is concluded by an order making or declining the appointment.

Source:Laws 1974, LB 354, § 85, UPC § 3-107.

30-2408. Probate, testacy, and appointment proceedings; ultimate time limit.

No informal probate or appointment proceeding or formal testacy or appointment proceeding, other than a proceeding to probate a will previously probated at the testator's domicile and appointment proceedings relating to an estate in which there has been a prior appointment, may be commenced more than three years after the decedent's death, except (1) if a previous proceeding was dismissed because of doubt about the fact of the decedent's death, appropriate probate, appointment, or testacy proceedings may be maintained at any time thereafter upon a finding that the decedent's death occurred prior to the initiation of the previous proceeding and the applicant or petitioner has not delayed unduly in initiating the subsequent proceeding; (2) appropriate probate, appointment, or testacy proceedings may be maintained in relation to the estate of an absent, disappeared, or missing person for whose estate a conservator has been appointed, at any time within three years after the conservator becomes able to establish the death of the protected person; (3) a proceeding to contest an informally probated will and to secure appointment of the person with legal priority for appointment in the event the contest is successful may be commenced within the later of twelve months from the informal probate or three years from the decedent's death; and (4) an informal probate or appointment or a formal testacy or appointment proceeding may be commenced thereafter if no formal or informal proceeding for probate or proceeding concerning the succession or administration has occurred within the three-year period, but claims other than expenses of administration may not be presented against the estate. These limitations do not apply to proceedings to construe probated wills or determine heirs of an intestate. In cases under (1) or (2) above, the date on which a testacy or appointment proceeding is properly commenced shall be deemed to be the date of the decedent's death for purposes of other limitations provisions of this code which relate to the date of death.

Source:Laws 1974, LB 354, § 86, UPC § 3-108; Laws 1984, LB 373, § 1.

Annotations

A proceeding to appoint a personal representative could be commenced more than 3 years after the decedent's death, because no formal or informal proceeding for probate or proceeding concerning the succession or administration had occurred within the 3-year period. In re Estate of Severson, 310 Neb. 982, 970 N.W.2d 94 (2022).

The exception to the 3-year statute of limitations in subsection (4) of this section is not applicable when any prior formal or informal proceeding for probate, whether completed or not, has occurred. In re Estate of Fuchs, 297 Neb. 667, 900 N.W.2d 896 (2017).

The statute of limitations in this section is self-executing and ordinarily begins to run upon the decedent's death. In re Estate of Fuchs, 297 Neb. 667, 900 N.W.2d 896 (2017).

This section permits an informal appointment proceeding to be commenced more than 3 years after the decedent's death if no formal or informal proceeding for probate or proceeding concerning the succession or administration has occurred within the 3-year period. In re Estate of Nemetz, 273 Neb. 918, 735 N.W.2d 363 (2007).

30-2409. Statutes of limitation on decedent's cause of action.

No statute of limitations running on a cause of action belonging to a decedent which had not been barred as of the date of his death shall apply to bar a cause of action surviving the decedent's death sooner than four months after death. A cause of action which, but for this section, would have been barred less than four months after death is barred after four months unless tolled.

Source:Laws 1974, LB 354, § 87, UPC § 3-109.

30-2409.01. Access to safe deposit box; custodian; duties; expenses; affidavit; contents; purported will; how treated; deed to burial plot or burial instructions.

(1) For purposes of this section:

(a) Custodian means a bank, savings and loan association, credit union, or other institution acting as a lessor of a safe deposit box; and

(b) Representative of a custodian means an authorized officer or employee of a custodian.

(2)(a) If a decedent at the time of his or her death was a sole or last surviving joint lessee of a safe deposit box, the custodian shall, prior to notice that a personal representative or special administrator has been appointed for such decedent's estate, allow access to the safe deposit box to determine whether the safe deposit box contains an instrument that appears to be an original will of the decedent, a deed to a burial plot, or burial instructions. The following persons may have such access:

(i) A person who presents an affidavit described in subsection (4) of this section that affiant reasonably believes that he or she is either (A) an heir at law of the decedent, (B) a devisee of the decedent or a person nominated as a personal representative as shown in a photocopy of a will which is attached to such affidavit, or (C) the agent or attorney specifically authorized in writing by a person described in subdivision (2)(a)(i)(A) or (B) of this section; or

(ii) A person who, under the terms of the safe deposit box lease or a power of attorney at the time of the decedent's death, was legally permitted to enter the safe deposit box, unless otherwise provided by the lease or the power of attorney.

(b) If a person described in subdivision (2)(a) of this section desires access to a safe deposit box but does not possess a key to the box, the custodian may open the safe deposit box by any means necessary at the person's request and expense or the custodian may require the person to obtain a court order for the custodian to open the safe deposit box at the requesting person's expense. The custodian shall retain, in a secure location at such person's expense, the contents of the box other than a purported will, deed to a burial plot, and burial instructions. A custodian shall deliver a purported will as described in subdivision (5)(b) of this section. A person described in subdivision (2)(a)(i) of this section may remove a deed to a burial plot and burial instructions that are not part of a purported will pursuant to subdivision (5)(d) of this section, and the custodian shall not prevent the removal. Expenses incurred by a custodian or by the person seeking the documents pursuant to this section shall be considered an estate administration expense.

(3) A representative of the custodian shall be present during the entry of a safe deposit box pursuant to this section.

(4) The affidavit referred to in subdivision (2)(a)(i) of this section shall state:

(a) That the sole or last surviving lessee of a safe deposit box has died and the date of his or her death, and a copy of the death certificate shall be attached;

(b) If the person submitting the affidavit is an attorney or agent of the affiant, that such appointment is for the purpose of accompanying the opening of the safe deposit box. In lieu of this statement, the appointment shall accompany the affidavit; and

(i)(A) Is an heir at law of the deceased lessee and a description of such person's relationship to the deceased lessee;

(B) Is reasonably thought to be a devisee of the decedent based on the provisions of a will, a photocopy of which is submitted with the affidavit; or

(C) Is reasonably thought to be nominated as personal representative pursuant to the terms of a will, a photocopy of which is submitted with the affidavit;

(ii) Swears or affirms that all statements in the affidavit are true and material and further acknowledges that any false statement may subject the person to penalties relating to perjury under section 28-915; and

(iii) Has no knowledge of an application or petition for the appointment of a personal representative pending or granted in any jurisdiction.

(5)(a) If an instrument purporting to be a will is found in a safe deposit box as the result of an entry pursuant to subsection (2) of this section, the representative of the custodian shall remove the purported will.

(b) The custodian shall mail the purported will by registered or certified mail or deliver the purported will in person to the clerk of the county court of the county in which the decedent was a resident. If the custodian is unable to determine the county of residence of the decedent, the custodian shall mail the purported will by registered or certified mail or deliver the purported will in person to the office of the clerk of the county court of the county in which the safe deposit box is located.

(c) At the request of the person or persons authorized to have access to the safe deposit box under subsection (2) of this section, the representative of the custodian shall copy each purported will of the decedent, at the expense of the requesting person, and shall deliver the copy of each purported will to the person, or if directed by the person, to the person's agent or attorney. In copying any purported will, the representative of the custodian shall not remove any staples or other fastening devices or disassemble the purported will in any way.

(d) If the safe deposit box contains a deed to a burial plot or burial instructions that are not a part of a purported will, the person or persons authorized to have access to the safe deposit box under subsection (2) of this section may remove these instruments or request that the representative of the custodian copy the deed to the burial plot or burial instructions at the expense of the requesting person.

(6) This section does not limit the right of a personal representative or a special administrator for the decedent, or a successor of the decedent pursuant to section 30-24,125, to have access to the safe deposit box as otherwise provided by law.

(7) Unless limited by the safe deposit box lease, a surviving co-lessee of the safe deposit box may continue to enter the safe deposit box notwithstanding the death of the decedent.

(8) A custodian shall not be liable to a person for an action taken pursuant to this section or for a failure to act in accordance with the requirements of this section unless the action or failure to act is shown to have resulted from the custodian's bad faith, gross negligence, or intentional misconduct.

Source:Laws 2014, LB788, § 9.

30-2410. Venue for first and subsequent estate proceedings; location of property.

(a) Venue for the first informal or formal testacy or appointment proceedings after a decedent's death is:

(1) in the county where the decedent had his domicile at the time of his death; or

(2) if the decedent was not domiciled in this state, in any county where property of the decedent was located at the time of his death.

(b) Venue for all subsequent proceedings within the jurisdiction of the court is in the place where the initial proceeding occurred, unless the initial proceeding has been transferred as provided in section 30-2212 or subsection (c) of this section.

(c) If the first proceeding was informal, on application of an interested person and after notice to the proponent in the first proceeding, the court, upon finding that venue is elsewhere, may transfer the proceeding and the file to the other court.

(d) For the purpose of aiding determinations concerning location of assets which may be relevant in cases involving nondomiciliaries, a debt, other than one evidenced by investment or commercial paper or other instrument in favor of a nondomiciliary, is located where the debtor resides or, if the debtor is a person other than an individual, at the place where it has its principal office. Commercial paper, investment paper and other instruments are located where the instrument is. An interest in property held in trust is located where the trustee may be sued. If the asset arises by reason of a tort claim against a nondomiciliary decedent, the asset is located in any county in this state where the nondomiciliary decedent could have been sued if not deceased.

Source:Laws 1974, LB 354, § 88, UPC § 3-201.

Annotations

Commencement of a probate case in Nebraska does not, in and of itself, preclude a decedent from having been domiciled in a different state, because venue is proper in any county in Nebraska where property of the decedent was located at the time of his or her death. In re Estate of Helms, 302 Neb. 357, 923 N.W.2d 423 (2019).

30-2411. Appointment or testacy proceedings; conflicting claim of domicile in another state.

If conflicting claims as to the domicile of a decedent are made in a formal testacy or appointment proceeding commenced in Nebraska and also in a testacy or appointment proceeding after notice pending at the same time in another state, with an applicable provision of law similar in reciprocal effect to this provision, the court in Nebraska is required to stay, dismiss, or permit suitable amendment in the proceeding here unless it is here determined that the local proceeding was commenced before the proceeding elsewhere, and the determination of domicile in the proceeding first commenced is determinative in the proceeding in Nebraska.

Source:Laws 1974, LB 354, § 89, UPC § 3-202.

30-2412. Priority among persons seeking appointment as personal representative.

(a) Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order:

(1) the person with priority as determined by a probated will including a person nominated by a power conferred in a will;

(2) the surviving spouse of the decedent who is a devisee of the decedent;

(3) other devisees of the decedent;

(4) the surviving spouse of the decedent;

(5) other heirs of the decedent;

(6) forty-five days after the death of the decedent, any creditor.

(b) An objection to an appointment can be made only in formal proceedings. In case of objection the priorities stated in (a) apply except that

(1) if the estate appears to be more than adequate to meet exemptions and costs of administration but inadequate to discharge anticipated unsecured claims, the court, on petition of a creditor, may appoint any qualified person;

(2) in case of objection to appointment of a person other than one whose priority is determined by will by an heir or devisee appearing to have a substantial interest in the estate, the court may appoint a person who is acceptable to heirs and devisees whose interests in the estate appear to be worth in total more than half of the probable distributable value or, in default of this accord, any suitable person.

(c) A person entitled to letters under (2) through (5) of (a) above, and a person aged eighteen and over who would be entitled to letters but for his age, may nominate a qualified person to act as personal representative. Any person aged eighteen and over may renounce his right to nominate or to an appointment by appropriate writing filed with the court. When two or more persons share a priority, those of them who do not renounce must concur in nominating another to act for them, or in applying for appointment.

(d) Conservators of the estates of protected persons, or if there is no conservator, any guardian except a guardian ad litem of a minor or incapacitated person, may exercise the same right to nominate, to object to another's appointment, or to participate in determining the preference of a majority in interest of the heirs and devisees that the protected person or ward would have if qualified for appointment.

(e) Appointment of one who does not have priority may be made only in formal proceedings except that appointment of one having priority resulting from renunciation or nomination may be made in informal proceedings. Before appointing one without priority, the court must determine that those having priority, although given notice of the proceedings, have failed to request appointment or to nominate another for appointment, and that administration is necessary.

(f) No person is qualified to serve as a personal representative who is:

(1) under the age of nineteen;

(2) a person whom the court finds unsuitable in formal proceedings.

(g) A personal representative appointed by a court of the decedent's domicile has priority over all other persons except where the decedent's will nominates different persons to be personal representative in this state and in the state of domicile. The domiciliary personal representative may nominate another, who shall have the same priority as the domiciliary personal representative.

(h) This section governs priority for appointment of a successor personal representative but does not apply to the selection of a special administrator.

Source:Laws 1974, LB 354, § 90, UPC § 3-203; Laws 1978, LB 650, § 8.

Annotations

Matters involving appointments of personal representatives, on appeal to the district court and the Supreme Court, are reviewed for error appearing on the record. In re Estate of Casselman, 219 Neb. 653, 365 N.W.2d 805 (1985).

Although it is not mandatory that the court appoint as personal representative of the estate the person or persons nominated in a will, it is required that the court adhere to all the applicable provisions of this section in making an appointment. Schissler v. Foote, 203 Neb. 598, 279 N.W.2d 614 (1979).

30-2413. Demand for notice of order or filing concerning decedent's estate.

Any person desiring notice of any order or filing pertaining to a decedent's estate in which he has a financial or property interest may file a demand for notice with the court at any time after the death of the decedent stating the name of the decedent, the nature of his interest in the estate, and the demandant's address or that of his attorney. The clerk shall mail a copy of the demand to the personal representative if one has been appointed. After filing of a demand, no order shall be made or filing acted upon to which the demand relates without notice as prescribed in section 30-2220 to the demandant or his attorney. The validity of an order which is issued without compliance with this requirement shall not be affected by the error, but the petitioner receiving the order or the person making the filing may be liable for any damage caused by the absence of notice. The requirement of notice arising from a demand under this provision may be waived in writing by the demandant and shall cease upon the termination of his interest in the estate.

Source:Laws 1974, LB 354, § 91, UPC § 3-204.

30-2414. Informal probate or appointment proceedings; application; contents.

Applications for informal probate or informal appointment shall be directed to the registrar and verified by the applicant to be accurate and complete to the best of the applicant's knowledge and belief as to the following information:

(1) Every application for informal probate of a will or for informal appointment of a personal representative, other than a special or successor representative, shall contain the following:

(i) a statement of the interest of the applicant;

(ii) the name and date of death of the decedent, the decedent's age, and the county and state of domicile at the time of death, and the names and addresses of the spouse, children, heirs and devisees and the ages of any who are minors so far as known or ascertainable with reasonable diligence by the applicant;

(iii) if the decedent was not domiciled in the state at the time of death, a statement showing venue;

(iv) a statement identifying and indicating the address of any personal representative of the decedent appointed in this state or elsewhere whose appointment has not been terminated;

(v) a statement indicating whether the applicant has received a demand for notice or is aware of any demand for notice of any probate or appointment proceeding concerning the decedent that may have been filed in this state or elsewhere.

(2) An application for informal probate of a will shall state the following in addition to the statements required by subdivision (1) of this section:

(i) that the original of the decedent's last will or an authenticated copy of a will probated in another jurisdiction:

(A) is in the possession of the court;

(B) accompanies the application; or

(C) is in the possession of the applicant, that the applicant will deliver such original or authenticated copy to the court within ten days after the filing of the application, and that a true and accurate copy of such original or authenticated copy accompanies the application;

(ii) that the applicant, to the best of the applicant's knowledge, believes the will to have been validly executed; and

(iii) that after the exercise of reasonable diligence the applicant is unaware of any instrument revoking the will, and that the applicant believes that the instrument which is the subject of the application is the decedent's last will.

(3) An application for informal appointment of a personal representative to administer an estate under a will shall describe the will by date of execution and state the time and place of probate or the pending application or petition for probate. The application for appointment shall adopt the statements in the application or petition for probate and state the name, address and priority for appointment of the person whose appointment is sought.

(4) An application for informal appointment of an administrator in intestacy shall state, in addition to the statements required by subdivision (1) of this section:

(i) that after the exercise of reasonable diligence the applicant is unaware of any unrevoked testamentary instrument relating to property having a situs in this state under section 30-2210, or a statement why any such instrument of which the applicant may be aware is not being probated;

(ii) the priority of the person whose appointment is sought and the names of any other persons having a prior or equal right to the appointment under section 30-2412.

(5) An application for appointment of a personal representative to succeed a personal representative appointed under a different testacy status shall refer to the order in the most recent testacy proceeding, state the name and address of the person whose appointment is sought and of the person whose appointment will be terminated if the application is granted, and describe the priority of the applicant.

(6) An application for appointment of a personal representative to succeed a personal representative who has tendered a resignation as provided in subsection (c) of section 30-2453, or whose appointment has been terminated by death or removal, shall adopt the statements in the application or petition which led to the appointment of the person being succeeded except as specifically changed or corrected, state the name and address of the person who seeks appointment as successor, and describe the priority of the applicant.

Source:Laws 1974, LB 354, § 92, UPC § 3-301; Laws 1978, LB 650, § 9; Laws 2020, LB966, § 14.

30-2415. Informal probate; duty of registrar; effect of informal probate.

(a) Upon receipt of an application requesting informal probate of a will, the registrar, upon making the findings required by section 30-2416, shall issue a written statement of informal probate if at least one hundred twenty hours have elapsed since the decedent's death. Informal probate is conclusive as to all persons until superseded by an order in a formal testacy proceeding. No defect in the application or procedure relating thereto which leads to informal probate of a will, or in connection with the notice required by subsection (b) of this section, renders the probate void.

(b) If a personal representative has not been appointed under section 30-2420 contemporaneously with the issuance of a written statement of informal probate, the clerk shall, within thirty days thereafter, publish notice once a week for three consecutive weeks in a newspaper having general circulation in the county where the written statement of informal probate has been issued. The first publication shall be made within thirty days after the statement is issued, shall be in a form prescribed by the Supreme Court, and shall give notice that a written statement of informal probate of a will of the decedent has been issued. The party instituting or maintaining the proceeding or his attorney is required to mail the published notice and give proof thereof in accordance with section 25-520.01.

Source:Laws 1974, LB 354, § 93, UPC § 3-302.

30-2416. Informal probate; proof and findings required.

(a) In an informal proceeding for original probate of a will, the registrar shall determine whether:

(1) the application is complete;

(2) the applicant has made oath or affirmation that the statements contained in the application are true to the best of the applicant's knowledge and belief;

(3) the applicant appears from the application to be an interested person as defined in subdivision (21) of section 30-2209;

(4) on the basis of the statements in the application, venue is proper;

(5) either:

(i) an original, duly executed, and apparently unrevoked will is in the registrar's possession; or

(ii) the applicant has represented that an original, duly executed, and apparently unrevoked will is in the applicant's possession, the applicant has provided a true and accurate copy of such original will with the application, and the applicant has represented that the original, duly executed, and apparently unrevoked will will be delivered to the court within ten days after the filing of the application; and

(6) any notice required by section 30-2413 has been given and that the application is not within section 30-2417.

(b) The application shall be denied if it indicates that a personal representative has been appointed in another county of this state or, except as provided in subsection (d) of this section, if it appears that this or another will of the decedent has been the subject of a previous probate order.

(c) A will which appears to have the required signatures and which contains an attestation clause showing that requirements of execution under section 30-2327, 30-2328, or 30-2331 have been met shall be probated without further proof. In other cases, the registrar may assume execution if the will appears to have been properly executed, or the registrar may accept a sworn statement or affidavit of any person having knowledge of the circumstances of execution, whether or not the person was a witness to the will.

(d) Informal probate of a will which has been previously probated elsewhere may be granted at any time upon written application by any interested person, together with deposit of an authenticated copy of the will and of the statement probating it from the office or court where it was first probated.

(e) A will from a place which does not provide for probate of a will after death and which is not eligible for probate under subsection (a) of this section may be probated in this state upon receipt by the registrar of a duly authenticated copy of the will and a duly authenticated certificate of its legal custodian that the copy filed is a true copy and that the will has become operative under the law of the other place.

Source:Laws 1974, LB 354, § 94, UPC § 3-303; Laws 1978, LB 650, § 10; Laws 2020, LB966, § 15.

30-2417. Informal probate; unavailable in certain cases.

An application for informal probate shall be declined if it relates to one or more of a known series of testamentary instruments the latest of which does not expressly revoke the earlier, except that a series consisting of a will with its codicils may be informally probated.

Source:Laws 1974, LB 354, § 95, UPC § 3-304.

30-2418. Informal probate; registrar not satisfied.

If the registrar is not satisfied that a will is entitled to be probated in informal proceedings because of failure to meet the requirements of sections 30-2416 and 30-2417 or any other reason, he may decline the application. A declination of informal probate is not an adjudication and does not preclude formal probate proceedings.

Source:Laws 1974, LB 354, § 96, UPC § 3-305.

30-2419. Informal probate; notice; requirements.

The moving party must give notice as described by section 30-2220 of his application for informal probate (1) to any person demanding it pursuant to section 30-2413; and (2) to any personal representative of the decedent whose appointment has not been terminated. No other notice of informal probate is required, except as provided in sections 30-2415(b) and 30-2420(c).

Source:Laws 1974, LB 354, § 97, UPC § 3-306.

30-2420. Informal appointment proceedings; delay in order; duty of registrar; effect of appointment.

(a) Upon receipt of an application for informal appointment of a personal representative other than a special administrator as provided in section 30-2457, if at least one hundred twenty hours have elapsed since the decedent's death, the registrar, after making the findings required by section 30-2421, shall appoint the applicant subject to qualification and acceptance; Provided, that if the decedent was a nonresident, the registrar shall delay the order of appointment until thirty days have elapsed since death unless the personal representative appointed at the decedent's domicile is the applicant, or unless the decedent's will directs that his estate be subject to the laws of this state.

(b) The status of personal representative and the powers and duties pertaining to the office are fully established by informal appointment. An appointment, and the office of personal representative created thereby, is subject to termination as provided in sections 30-2451 to 30-2455, but is not subject to retroactive vacation.

(c) In addition to the notices required by section 30-2413, after a personal representative is appointed pursuant to the provisions of this section, the clerk shall, within thirty days after the appointment, cause notice of the appointment to be published once a week for three consecutive weeks in a newspaper having general circulation in the county where the appointment has been made. The first publication shall be made within thirty days after appointment.

The published notice shall be in a form prescribed by the Supreme Court and shall contain the following: (1) notice of the appointment, and (2) notice that a written statement of informal probate of a will of decedent has been issued if such is the case. The party instituting or maintaining the proceeding or his attorney is required to mail the published notice and give proof thereof in accordance with section 25-520.01.

Source:Laws 1974, LB 354, § 98, UPC § 3-307.

Annotations

In the absence of qualification, the issuance of letters of personal representative as part of the appointment process is not authorized by this section. In re Estate of Severson, 310 Neb. 982, 970 N.W.2d 94 (2022).

30-2421. Informal appointment proceedings; proof and findings required.

(a) In informal appointment proceedings, the registrar must determine whether:

(1) the application for informal appointment of a personal representative is complete;

(2) the applicant has made oath or affirmation that the statements contained in the application are true to the best of his knowledge and belief;

(3) the applicant appears from the application to be an interested person as defined in section 30-2209(21);

(4) on the basis of the statements in the application, venue is proper;

(5) any will to which the requested appointment relates has been formally or informally probated; but this requirement does not apply to the appointment of a special administrator;

(6) any notice required by section 30-2413 has been given;

(7) from the statements in the application, the person whose appointment is sought has priority entitling him to the appointment.

(b) Unless section 30-2455 controls, the application must be denied if it indicates that a personal representative who has not filed a written statement of resignation as provided in section 30-2453(c) has been appointed in this or another county of this state, that (unless the applicant is the domiciliary personal representative or his nominee) the decedent was not domiciled in this state and that a personal representative whose appointment has not been terminated has been appointed by a court in the state of domicile, or that other requirements of this section have not been met.

Source:Laws 1974, LB 354, § 99, UPC § 3-308.

30-2422. Informal appointment proceedings; registrar not satisfied.

If the registrar is not satisfied that a requested informal appointment of a personal representative should be made because of failure to meet the requirements of sections 30-2420 and 30-2421, or for any other reason, he may decline the application. A declination of informal appointment is not an adjudication and does not preclude appointment in formal proceedings.

Source:Laws 1974, LB 354, § 100, UPC § 3-309.

30-2423. Informal appointment proceedings; notice requirements.

The moving party must give notice as described by section 30-2220 of his intention to seek an appointment informally: (1) to any person demanding it pursuant to section 30-2413; and (2) to any person having a prior or equal right to appointment not waived in writing and filed with the court. No other notice of an informal appointment proceeding is required, except as provided in section 30-2420(c) or in section 30-2483.

Source:Laws 1974, LB 354, § 101, UPC § 3-310.

30-2424. Informal appointment unavailable in certain cases.

If an application for informal appointment indicates the existence of a possible unrevoked testamentary instrument which may relate to property subject to the laws of this state, and which is not filed for probate in this court, the registrar shall decline the application.

Source:Laws 1974, LB 354, § 102, UPC § 3-311.

30-2425. Formal testacy proceedings; nature; when commenced.

A formal testacy proceeding is litigation to determine whether a decedent left a valid will. A formal testacy proceeding may be commenced by an interested person filing a petition as described in section 30-2426(a) in which he requests that the court, after notice and hearing, enter an order probating a will, or a petition to set aside an informal probate of a will or to prevent informal probate of a will which is the subject of a pending application, or a petition in accordance with section 30-2426(b) for an order that the decedent died intestate.

A petition may seek formal probate of a will without regard to whether the same or a conflicting will has been informally probated. A formal testacy proceeding may, but need not, involve a request for appointment of a personal representative.

During the pendency of a formal testacy proceeding, the registrar shall not act upon any application for informal probate of any will of the decedent or any application for informal appointment of a personal representative of the decedent.

Unless a petition in a formal testacy proceeding also requests confirmation of the previous informal appointment, a previously appointed personal representative, after receipt of notice of the commencement of a formal probate proceeding, must refrain from exercising his power to make any further distribution of the estate during the pendency of the formal proceeding. A petitioner who seeks the appointment of a different personal representative in a formal proceeding also may request an order restraining the acting personal representative from exercising any of the powers of his office and requesting the appointment of a special administrator. In the absence of a request, or if the request is denied, the commencement of a formal proceeding has no effect on the powers and duties of a previously appointed personal representative other than those relating to distribution.

Source:Laws 1974, LB 354, § 103, UPC § 3-401.

Annotations

Without additional facts indicating otherwise, an order appointing a special administrator pursuant to this section is not a final order. In re Estate of Abbott-Ochsner, 299 Neb. 596, 910 N.W.2d 504 (2018).

30-2426. Formal testacy or appointment proceedings; petition; contents.

(a) Petitions for formal probate of a will, or for adjudication of intestacy with or without request for appointment of a personal representative, must be directed to the court, request a judicial order after notice and hearing and contain further statements as indicated in this section. A petition for formal probate of a will

(1) requests an order as to the testacy of the decedent in relation to a particular instrument which may or may not have been informally probated and determining the heirs,

(2) contains the statements required for informal applications as stated in subdivisions (1)(i) through (v) of section 30-2414, the statements required by subdivisions (2)(ii) and (iii) of section 30-2414, and

(3) states whether the original of the last will of the decedent is in the possession of the court, accompanies the petition, or has been filed electronically and will be delivered to the court within ten days after the filing of the application.

The petition also must state the contents of the will and indicate that it is lost, destroyed, or otherwise unavailable if the original will or an authenticated copy of the will probated in another jurisdiction:

(i) is not in the possession of the court;

(ii) did not accompany the application; and

(iii) has not been filed electronically, subject to delivery within ten days after the filing of the application.

(b) A petition for adjudication of intestacy and appointment of an administrator in intestacy must request a judicial finding and order that the decedent left no will and determining the heirs, contain the statements required by subdivisions (1) and (4) of section 30-2414 and indicate whether supervised administration is sought. A petition may request an order determining intestacy and heirs without requesting the appointment of an administrator, in which case the statements required by subdivision (4)(ii) of section 30-2414 may be omitted.

Source:Laws 1974, LB 354, § 104, UPC § 3-402; Laws 2020, LB966, § 16.

30-2427. Formal testacy proceeding; notice of hearing on petition.

(a) Upon commencement of a formal testacy proceeding, the court shall fix a time and place of hearing. Notice shall be given in the manner prescribed by section 30-2220 by the petitioner under subdivision 30-2220(a)(1) to the persons herein enumerated and to any additional person who has filed a demand for notice under section 30-2413.

Notice shall be given to the following persons: The surviving spouse, children, and other heirs of the decedent, the devisees and executors named in any will that is being, or has been, probated, or offered for informal or formal probate in the county, or that is known by the petitioner to have been probated, or offered for informal or formal probate elsewhere, and any personal representative of the decedent whose appointment has not been terminated. Notice may be given to other persons. In addition, the clerk shall publish notice to all unknown persons and to all known persons whose addresses are unknown who have any interest in the matters being litigated in accordance with section 30-2220(a)(2). The party instituting or maintaining the proceeding or his or her attorney is required to mail the published notice and give proof thereof in accordance with section 25-520.01.

(b) If it appears by the petition or otherwise that the fact of the death of the alleged decedent may be in doubt, or on the written demand of any interested person, a copy of the notice of the hearing on the petition shall be sent by certified or registered mail to the alleged decedent at his or her last-known address. The court shall direct the petitioner to report the results of, or make and report back concerning, a reasonably diligent search for the alleged decedent in any manner that may seem advisable, including any or all of the following methods:

(1) By inserting in one or more suitable periodicals a notice requesting information from any person having knowledge of the whereabouts of the alleged decedent;

(2) By notifying law enforcement officials and public welfare agencies in appropriate locations of the disappearance of the alleged decedent;

(3) By engaging the services of an investigator. The costs of any search so directed shall be paid by the petitioner if there is no administration or by the estate of the decedent in case there is administration.

Source:Laws 1974, LB 354, § 105, UPC § 3-403; Laws 1987, LB 93, § 10.

Annotations

There is no statutory requirement that the interested parties be notified as to the content or date of execution of the document or documents offered for probate. The statutory requirement is for notice that there is a petition to probate the estate. In re Estate of Seidler, 241 Neb. 402, 490 N.W.2d 453 (1992).

30-2428. Formal testacy proceedings; written objections to probate.

Any party to a formal proceeding who opposes the probate of a will for any reason shall state in his pleadings his objections to probate of the will.

Source:Laws 1974, LB 354, § 106, UPC § 3-404.

30-2429. Formal testacy proceedings; uncontested cases; hearings and proof.

If a petition in a testacy proceeding is unopposed, the court may order probate or intestacy on the strength of the pleadings if satisfied that the conditions of section 30-2433 have been met, or conduct a hearing in open court and require proof of the matters necessary to support the order sought. If evidence concerning execution of the will is necessary, the affidavit or testimony of one of any attesting witnesses to the instrument is sufficient. If the affidavit or testimony of an attesting witness is not available, execution of the will may be proved by other evidence or affidavit.

Source:Laws 1974, LB 354, § 107, UPC § 3-405.

30-2429.01. Formal testacy proceedings; objection; informal probate; petition to set aside; transfer to district court; procedure; fees.

(1) If there is an objection to probate of a will or if a petition is filed to set aside an informal probate of a will or to prevent informal probate of a will which is the subject of a pending application, the county court shall continue the originally scheduled hearing for at least fourteen days from the date of the hearing. At any time prior to the continued hearing date any party may transfer the proceeding to determine whether the decedent left a valid will to the district court by filing with the county court a notice of transfer, depositing with the clerk of the county court a docket fee of the district court for cases originally commenced in district court, and paying to the clerk of the county court a fee of twenty dollars.

(2) Within ten days of the completion of the requirements of subsection (1) of this section, the clerk of the county court shall transmit to the clerk of the district court a certification of the case file and docket fee.

(3) Upon the filing of the certification as provided in subsection (2) of this section in the district court, such court shall have jurisdiction over the proceeding on the contest. Within thirty days of the filing of such certification, any party may file additional objections.

(4) The district court may order such additional pleadings as necessary and shall thereafter determine whether the decedent left a valid will. Trial shall be to a jury unless a jury is waived by all parties who have filed pleadings in the matter.

(5) The final decision and judgment in the matter transferred shall be certified to the county court, and proceedings shall be had thereon necessary to carry the final decision and judgment into execution.

Source:Laws 1981, LB 42, § 18; Laws 1985, LB 293, § 3; Laws 1992, LB 999, § 1; Laws 2018, LB193, § 64.

Annotations

The county court, and not the district court, has jurisdiction to determine whether a personal representative or nominated personal representative should be reimbursed by the estate for attorney fees incurred in a will contest that is initiated during probate proceedings in the county court but that is transferred to the district court. In re Estate of Koetter, 312 Neb. 549, 980 N.W.2d 376 (2022).

The fact that a district court has obtained, via the transfer of the will contest under subsection (3) of this section, "jurisdiction over the proceeding on the contest" does not divest the county court of its original jurisdiction in probate to protect the estate during the pendency of that will contest by considering the merits of a petition for a special administrator and request for a restraining order on the personal representative. In re Estate of Anderson, 311 Neb. 758, 974 N.W.2d 847 (2022).

A district court's jurisdiction to hear a will contest pursuant to this section is limited to determining validity. Bohling v. Bohling, 309 Neb. 625, 962 N.W.2d 224 (2021).

A request for transfer may be made at any time prior to the final scheduled continuance. In re Estate of Nuesch, 252 Neb. 610, 567 N.W.2d 113 (1997).

When a will contest is transferred pursuant to this section, the district court obtains jurisdiction over all proceedings related to the contest action. Jurisdiction remains with the district court until a final decision is reached and the case remanded to the county court. Once the contest is transferred to the district court, the county court has no authority over the matter other than to carry out the district court's final decision after remand. In re Estate of Miller, 231 Neb. 723, 437 N.W.2d 793 (1989).

An appeal from a will contest removed to a district court pursuant to this section must comply with the supersedeas bond requirement contained in section 30-1601. In re Estate of Sehi, 17 Neb. App. 697, 772 N.W.2d 103 (2009).

30-2430. Formal testacy proceedings; contested cases; testimony of attesting witnesses.

(a) If evidence concerning execution of an attested will which is not self-proved is necessary in contested cases, the testimony of at least one of the attesting witnesses, if within the state competent and able to testify, is required. Due execution of an attested or unattested will may be proved by other evidence.

(b) If the will is self-proved, compliance with signature requirements for execution is conclusively presumed and other requirements of execution are presumed subject to rebuttal without the testimony of any witness upon filing the will and the acknowledgment and affidavits annexed or attached thereto, unless there is proof of fraud or forgery affecting the acknowledgment or affidavit.

Source:Laws 1974, LB 354, § 108, UPC § 3-406.

Annotations

This is a procedural section defining evidence that may be used to prove an otherwise valid will; it does not create another category of valid wills. In re Estate of Flicker, 215 Neb. 495, 339 N.W.2d 914 (1983).

In a self-proved will, compliance with signature requirements is conclusively presumed and other requirements of execution are presumed, subject to rebuttal. The presumption of due execution arising from the acknowledgment of a self-proved will may be attacked by proof of fraud or forgery. In the absence of proof that the formalities required by the statute were not complied with, the presumption of due execution is conclusive. In re Estate of Flider, 213 Neb. 153, 328 N.W.2d 197 (1982).

The proponent of a self-proved will, as provided for under this statute, need not call any attesting witness to make a prima facie case of testamentary capacity. In re Estate of Camin, 212 Neb. 490, 323 N.W.2d 827 (1982).

30-2431. Formal testacy proceedings; burdens in contested cases.

In contested cases, petitioners who seek to establish intestacy have the burden of establishing prima facie proof of death, venue, and heirship. Proponents of a will have the burden of establishing prima facie proof of due execution, death, testamentary capacity, and venue. Contestants of a will have the burden of establishing undue influence, fraud, duress, mistake or revocation. Parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof. If a will is opposed by the petition for probate of a later will revoking the former, it shall be determined first whether the later will is entitled to probate, and if a will is opposed by a petition for a declaration of intestacy, it shall be determined first whether the will is entitled to probate.

Source:Laws 1974, LB 354, § 109, UPC § 3-407.

Annotations

Contestants of a will have the burden of establishing undue influence and carry the ultimate burden of persuasion. In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015).

This section did not change the rules concerning the effect of a presumption of undue influence established by case law existing prior to the adoption of the Uniform Probate Code. In re Estate of Novak, 235 Neb. 939, 458 N.W.2d 221 (1990).

While a nonexpert witness who is shown to have had intimate acquaintance with a deceased may be permitted to state an opinion concerning the mental condition of the deceased, the person testifying must give the facts and circumstances upon which the opinion is based. In re Estate of Thompson, 225 Neb. 643, 407 N.W.2d 738 (1987).

30-2432. Formal testacy proceedings; will construction; effect of final order in another jurisdiction.

A final order of a court of another state, which state has an applicable provision of law similar in reciprocal effect to this section, determining testacy, the validity or construction of a will, made in a proceeding involving notice to and an opportunity for contest by all interested persons must be accepted as determinative by the courts of this state if it includes, or is based upon, a finding that the decedent was domiciled at his death in the state where the order was made.

Source:Laws 1974, LB 354, § 110, UPC § 3-408.

Annotations

The clear directive of this section is that an order of another state shall be adopted by a Nebraska court only if the other state has a similar law for providing reciprocity of decisions made in Nebraska courts in probate proceedings. In re Estate of Hannan, 2 Neb. App. 636, 513 N.W.2d 339 (1994).

30-2433. Formal testacy proceedings; order; foreign will.

After the time required for any notice has expired, upon proof of notice, and after any hearing that may be necessary, if the court finds that the testator is dead and venue is proper, it shall determine the decedent's domicile at death, his heirs and his state of testacy. Any will found to be valid and unrevoked shall be formally probated. Termination of any previous informal appointment of a personal representative, which may be appropriate in view of the relief requested and findings, is governed by section 30-2455. The petition shall be dismissed or appropriate amendment allowed if the court is not satisfied that the alleged decedent is dead. A will from a place which does not provide for probate of a will after death may be proved for probate in this state by a duly authenticated certificate of its legal custodian that the copy introduced is a true copy and that the will has become effective under the law of the other place.

Source:Laws 1974, LB 354, § 111, UPC § 3-409; Laws 1978, LB 650, § 11.

30-2434. Formal testacy proceedings; probate of more than one instrument.

If two or more instruments are offered for probate before a final order is entered in a formal testacy proceeding, more than one instrument may be probated if neither expressly revokes the other or contains provisions which work a total revocation by implication. If more than one instrument is probated, the order shall indicate what provisions control in respect to the nomination of an executor, if any. The order may, but need not, indicate how any provisions of a particular instrument are affected by the other instrument. After a final order in a testacy proceeding has been entered, no petition for probate of any other instrument of the decedent may be entertained, except incident to a petition to vacate or modify a previous probate order and subject to the time limits of section 30-2436.

Source:Laws 1974, LB 354, § 112, UPC § 3-410.

30-2435. Formal testacy proceedings; partial intestacy.

If it becomes evident in the course of a formal testacy proceeding that, though one or more instruments are entitled to be probated, the decedent's estate is or may be partially intestate, the court shall enter an order to that effect.

Source:Laws 1974, LB 354, § 113, UPC § 3-411.

30-2436. Formal testacy proceedings; effect of order; vacation.

Subject to appeal and subject to vacation as provided herein and in section 30-2437, a formal testacy order under sections 30-2433 to 30-2435, including an order that the decedent left no valid will and determining heirs, is final as to all persons with respect to all issues concerning the decedent's estate that the court considered or might have considered incident to its rendition relevant to the question of whether the decedent left a valid will, and to the determination of heirs, except that:

(1) The court shall entertain a petition for modification or vacation of its order and probate of another will of the decedent if it is shown that the proponents of the later-offered will were unaware of its existence at the time of the earlier proceeding or were unaware of the earlier proceeding and were given no notice thereof, except by publication.

(2) If intestacy of all or part of the estate has been ordered, the determination of heirs of the decedent may be reconsidered if it is shown that one or more persons were omitted from the determination and it is also shown that the persons were unaware of their relationship to the decedent, were unaware of his or her death or were given no notice of any proceeding concerning his or her estate, except by publication.

(3) A petition for vacation under either (1) or (2) above must be filed prior to the earlier of the following time limits:

(i) If a personal representative has been appointed for the estate, the time of entry of any order approving final distribution of the estate, or, if the estate is closed by statement, six months after the filing of the closing statement.

(ii) Whether or not a personal representative has been appointed for the estate of the decedent, the time prescribed by subdivision (1), (2), or (3) of section 30-2408 when it is no longer possible to initiate an original proceeding to probate a will of the decedent.

(iii) Twelve months after the entry of the order sought to be vacated.

(4) The order originally rendered in the testacy proceeding may be modified or vacated, if appropriate under the circumstances, by the order of probate of the later-offered will or the order redetermining heirs.

(5) The finding of the fact of death is conclusive as to the alleged decedent only if notice of the hearing on the petition in the formal testacy proceeding was sent by registered or certified mail addressed to the alleged decedent at his or her last-known address and the court finds that a search under section 30-2427(b) was made.

If the alleged decedent is not dead, even if notice was sent and search was made, he or she may recover estate assets in the hands of the personal representative. In addition to any remedies available to the alleged decedent by reason of any fraud or intentional wrongdoing, the alleged decedent may recover any estate or its proceeds from distributees that is in their hands, or the value of distributions received by them, to the extent that any recovery from distributees is equitable in view of all of the circumstances.

(6) In a contested will case in which the district court heard a transferred proceeding and certified the results to the county court under section 30-2429.01, any petition for modification under subsection (1) of this section shall be filed in the county court from which the proceedings were transferred; any party may thereafter remove the proceedings for modification or vacation in accordance with section 30-2429.01.

Source:Laws 1974, LB 354, § 114, UPC § 3-412; Laws 1978, LB 650, § 12; Laws 1981, LB 42, § 19.

Annotations

A will that contains a “no contest” provision forecloses any partition action after a probate court enters its final order closing the estate. So a devisee’s partition action after the estate has been closed cannot be a will contest. Martin v. Ullsperger, 284 Neb. 526, 822 N.W.2d 382 (2012).

30-2437. Formal testacy proceedings; vacation of order for other cause.

For good cause shown, an order in a formal testacy proceeding may be modified or vacated within the time allowed for appeal.

Source:Laws 1974, LB 354, § 115, UPC § 3-413.

Annotations

A motion to vacate or modify which is filed within the time limitation contemplated by this section is similar in nature to a motion for a new trial in district court and the overruling of such motion is itself a final order which extends the thirty-day appeal time from the entry of the original order complained of to the date upon which the motion to vacate or modify is overruled. DeVries v. Rix, 203 Neb. 392, 279 N.W.2d 89 (1979).

To show "good cause", as used in this section, means to demonstrate a logical reason or legal ground, based on fact or law, why an otherwise final order of the county court should be vacated or modified. DeVries v. Rix, 203 Neb. 392, 279 N.W.2d 89 (1979).

Under this section, a movant must support a claim of meritorious objection or defense by good faith averment of facts, not simply legal conclusions. In re Estate of Rolenc, 7 Neb. App. 833, 585 N.W.2d 526 (1998).

30-2438. Formal proceedings concerning appointment of personal representative.

(a) A formal proceeding for adjudication regarding the priority or qualification of one who is an applicant for appointment as personal representative, or of one who previously has been appointed personal representative in informal proceedings, if an issue concerning the testacy of the decedent is or may be involved, is governed by section 30-2426, as well as by this section. In other cases, the petition shall contain or adopt the statements required by section 30-2414(1) and describe the question relating to priority or qualification of the personal representative which is to be resolved. If the proceeding precedes any appointment of a personal representative, it shall stay any pending informal appointment proceedings as well as any commenced thereafter. If the proceeding is commenced after appointment, the previously appointed personal representative, after receipt of notice thereof, shall refrain from exercising any power of administration except as necessary to preserve the estate or unless the court orders otherwise.

(b) After notice to interested persons, including all persons interested in the administration of the estate as successors under the applicable assumption concerning testacy, any previously appointed personal representative and any person having or claiming priority for appointment as personal representative, the court shall determine who is entitled to appointment under section 30-2412, make a proper appointment and, if appropriate, terminate any prior appointment found to have been improper as provided in cases of removal under section 30-2454.

Source:Laws 1974, LB 354, § 116, UPC § 3-414.

Annotations

Summary judgment is an incorrect procedure for making a priority determination that removes or replaces a personal representative when the hearing does not comply with the procedural requirements of a formal proceeding under this section. In re Estate of Sutherlin, 261 Neb. 297, 622 N.W.2d 657 (2001).

30-2439. Supervised administration; nature of proceeding.

Supervised administration is a single in rem proceeding to secure complete administration and settlement of a decedent's estate under the continuing authority of the court which extends until entry of an order approving distribution of the estate and discharging the personal representative or other order terminating the proceeding. A supervised personal representative is responsible to the court, as well as to the interested parties, and is subject to directions concerning the estate made by the court on its own motion or on the motion of any interested party. Except as otherwise provided in this part, or as otherwise ordered by the court, a supervised personal representative has the same duties and powers as a personal representative who is not supervised.

Source:Laws 1974, LB 354, § 117, UPC § 3-501.

30-2440. Supervised administration; petition; order.

A petition for supervised administration may be filed by any interested person or by a personal representative at any time or the prayer for supervised administration may be joined with a petition in a testacy or appointment proceeding. If the testacy of the decedent and the priority and qualification of any personal representative have not been adjudicated previously, the petition for supervised administration shall include the matters required of a petition in a formal testacy proceeding and the notice requirements and procedures applicable to a formal testacy proceeding apply. If not previously adjudicated, the court shall adjudicate the testacy of the decedent and questions relating to the priority and qualifications of the personal representative in any case involving a request for supervised administration, even though the request for supervised administration may be denied. After notice to interested persons, the court shall order supervised administration of a decedent's estate: (1) if the decedent's will directs supervised administration, it shall be ordered unless the court finds that circumstances bearing on the need for supervised administration have changed since the execution of the will and that there is no necessity for supervised administration; (2) if the decedent's will directs unsupervised administration, supervised administration shall be ordered only upon a finding that it is necessary for protection of persons interested in the estate; or (3) in other cases if the court finds that supervised administration is necessary under the circumstances.

Source:Laws 1974, LB 354, § 118, UPC § 3-502.

30-2441. Supervised administration; effect on other proceedings.

(a) The pendency of a proceeding for supervised administration of a decedent's estate stays action on any informal application then pending or thereafter filed.

(b) If a will has been previously probated in informal proceedings, the effect of the filing of a petition for supervised administration is as provided for formal testacy proceedings by section 30-2425.

(c) After he has received notice of the filing of a petition for supervised administration, a personal representative who has been appointed previously shall not exercise his power to distribute any estate. The filing of the petition does not affect his other powers and duties unless the court restricts the exercise of any of them pending full hearing on the petition.

Source:Laws 1974, LB 354, § 119, UPC § 3-503.

30-2442. Supervised administration; powers of personal representative.

Unless restricted by the court, a supervised personal representative has, without interim orders approving exercise of a power, all powers of personal representatives under this code, but he shall not exercise his power to make any distribution of the estate without prior order of the court. Any other restriction on the power of a personal representative which may be ordered by the court must be endorsed on his letters of appointment and, unless so endorsed, is ineffective as to persons dealing in good faith with the personal representative.

Source:Laws 1974, LB 354, § 120, UPC § 3-504.

Annotations

Pursuant to this section, failure to inform court of attorney fee payments did not violate this particular supervised administration because such fees were not "distributions." In re Estate of Snover, 233 Neb. 198, 443 N.W.2d 894 (1989).

30-2443. Supervised administration; interim orders; distribution and closing orders.

Unless otherwise ordered by the court, supervised administration is terminated by order in accordance with time restrictions, notices and contents of orders prescribed for proceedings under section 30-24,115. Interim orders approving or directing partial distributions or granting other relief may be issued by the court at any time during the pendency of a supervised administration on the application of the personal representative or any interested person.

Source:Laws 1974, LB 354, § 121, UPC § 3-505.

30-2444. Qualification.

Prior to receiving letters, a personal representative shall qualify by filing with the appointing court any required bond and a statement of acceptance of the duties of the office.

Source:Laws 1974, LB 354, § 122, UPC § 3-601.

Annotations

Without acceptance by one appointed personal representative, there can be no qualification. In re Estate of Severson, 310 Neb. 982, 970 N.W.2d 94 (2022).

30-2445. Acceptance of appointment; consent to jurisdiction.

By accepting appointment, a personal representative submits personally to the jurisdiction of the court in any proceeding relating to the estate that may be instituted by any interested person. Notice of any proceeding shall be delivered to the personal representative or mailed to him by ordinary first-class mail at his address as listed in the application or petition for appointment or as thereafter reported to the court and to his address as then known to the petitioner.

Source:Laws 1974, LB 354, § 123, UPC § 3-602.

30-2446. Bond required; exceptions; when court may require; required when value of estate will not permit summary procedures.

(1) A bond shall be required of a personal representative unless: (a) The will expressly waives the bond, expressly requests that there be no bond, or waives the requirement of a surety thereon other than the personal representative; (b) all of the heirs, if no will has been probated, or all of the devisees under a will which does not provide for relieving the personal representative of bond in accordance with subdivision (1)(a) of this section, file with the court a written waiver of the bond requirement; (c) a duly appointed guardian or conservator waives bond on behalf of a ward or protected person unless the guardian or conservator is the personal representative; (d) a person eighteen years of age or older waives bond on the person's own behalf; (e) the personal representative is a national banking association, a holder of a banking permit under the laws of this state, or a trust company holding a certificate to engage in trust business from the Department of Banking and Finance; or (f) the petition for formal or informal appointment alleges that the probable value of the entire estate will permit summary procedures under section 30-24,127.

(2) In any case when bond is not required under subsection (1) of this section, the court may, upon petition of any interested person and upon reasonable proof that the interest of the petitioning person is in danger of being lost because of the administration of the estate, require a bond in such amount as the court may direct in order to protect the interest of the petitioner or of the petitioner and others. An heir or devisee who initially waived bond may be a petitioner under this subsection.

(3) If a bond is not initially required because the petition for appointment alleges that the probable value of the entire estate will permit summary procedures under section 30-24,127, and it later appears from the inventory and appraisal that the value of the estate will not permit use of such procedures, then the personal representative shall promptly file a bond unless one is not required for some other reason under subsection (1) of this section.

Source:Laws 1974, LB 354, § 124, UPC § 3-603; Laws 1975, LB 500, § 1; Laws 2024, LB1195, § 3.
Effective Date: July 19, 2024

30-2447. Bond amount; security; procedure; reduction.

(a) In informal proceedings, if bond is required under section 30-2446 and the provisions of the will or court order do not specify the amount, unless stated in his application or petition, the person qualifying shall file a statement under oath with the registrar indicating his best estimate of the value of the personal estate of the decedent and of the income expected from the personal and real estate during the next year, and he shall execute and file a bond with the registrar in an amount not less than the estimate. The registrar shall determine that the bond is duly executed by a corporate surety or with such individual sureties as the court shall direct or approve.

(b) In formal and informal proceedings, on application or petition of the personal representative or another interested person, the court may excuse a requirement of bond, increase or reduce the amount of the bond, release sureties, or permit the substitution of another bond with the same or different sureties.

Source:Laws 1974, LB 354, § 125, UPC § 3-604.

30-2448. Demand for bond by interested person.

Any person apparently having an interest in the estate worth in excess of one thousand dollars, or any creditor having a claim in excess of one thousand dollars, may make a written demand that a personal representative give bond. The demand must be filed with the registrar and a copy mailed to the personal representative, if appointment and qualification have occurred. Thereupon, bond is required, but the requirement ceases if the person demanding bond ceases to be interested in the estate or if bond is excused as provided in section 30-2446 or 30-2447. After he has received notice and until the filing of the bond or cessation of the requirement of bond, the personal representative shall refrain from exercising any powers of his office except as necessary to preserve the estate. Failure of the personal representative to meet a requirement of bond by giving suitable bond within thirty days after receipt of notice is cause for his removal and appointment of a successor personal representative.

Source:Laws 1974, LB 354, § 126, UPC § 3-605.

30-2449. Terms and conditions of bonds.

(a) The following requirements and provisions apply to any bond required by this part:

(1) Bonds shall name the court as obligee for the benefit of the persons interested in the estate and shall be conditioned upon the faithful discharge by the fiduciary of all duties according to law and shall be approved by the registrar in informal proceedings and by the court in formal proceedings.

(2) Unless otherwise provided by the terms of the approved bond, sureties are jointly and severally liable with the personal representative and with each other. The address of sureties shall be stated in the bond.

(3) By executing an approved bond of a personal representative, the surety consents to the jurisdiction of the probate court which issued letters to the primary obligor in any proceedings pertaining to the fiduciary duties of the personal representative and naming the surety as a party. Notice of any proceeding shall be delivered to the surety or mailed to him by registered or certified mail at his address as listed with the court where the bond is filed and to his address as then known to the petitioner.

(4) On petition of a successor personal representative, any other personal representative of the same decedent, or any interested person, a proceeding in the court may be initiated against a surety for breach of the obligation of the bond of the personal representative.

(5) The bond of the personal representative is not void after the first recovery but may be proceeded against from time to time until the whole penalty is exhausted.

(b) No action or proceeding may be commenced against the surety on any matter as to which an action or proceeding against the primary obligor is barred by adjudication or limitation.

Source:Laws 1974, LB 354, § 127, UPC § 3-606.

30-2450. Order restraining personal representative; hearing.

(a) On petition of any person who appears to have an interest in the estate, the court by temporary order may restrain a personal representative from performing specified acts of administration, disbursement, or distribution, or exercise of any powers or discharge of any duties of his office, or make any other order to secure proper performance of his duty, if it appears to the court that the personal representative otherwise may take some action which would jeopardize unreasonably the interest of the applicant or of some other interested person. Persons with whom the personal representative may transact business may be made parties.

(b) The matter shall be set for hearing within ten days unless the parties otherwise agree. Notice as the court directs shall be given to the personal representative and his attorney of record, if any, and to any other parties named defendant in the petition.

Source:Laws 1974, LB 354, § 128, UPC § 3-607.

30-2451. Termination of appointment; general.

Termination of appointment of a personal representative occurs as indicated in sections 30-2452 to 30-2455. Termination ends the right and power pertaining to the office of personal representative as conferred by this code or any will, except that a personal representative, at any time prior to distribution or until restrained or enjoined by court order, may perform acts necessary to protect the estate and may deliver the assets to a successor representative. Termination does not discharge a personal representative from liability for transactions or omissions occurring before termination, or relieve him of the duty to preserve assets subject to his control, to account therefor and to deliver the assets. Termination does not affect the jurisdiction of the court over the personal representative, but terminates his authority to represent the estate in any pending or future proceeding.

Source:Laws 1974, LB 354, § 129, UPC § 3-608.

30-2452. Termination of appointment; death or disability.

The death of a personal representative or the appointment of a guardian or conservator for the estate of a personal representative terminates his appointment. Until appointment and qualification of a successor or special representative to replace the deceased or protected representative, the representative of the estate of the deceased or protected personal representative, if any, has the duty to protect the estate possessed and being administered by his decedent or ward at the time his appointment terminates, has the power to perform acts necessary for protection and shall account for and deliver the estate assets to a successor or special personal representative upon his appointment and qualification.

Source:Laws 1974, LB 354, § 130, UPC § 3-609.

30-2453. Termination of appointment; voluntary.

(a) An appointment of a personal representative terminates as provided in section 30-24,117 one year after the filing of a closing statement.

(b) An order closing an estate as provided in section 30-24,115 or 30-24,116 terminates an appointment of a personal representative at the time and on the conditions provided for in the order.

(c) A personal representative may resign his position by filing a written statement of resignation with the registrar after he has given at least fifteen days' written notice to the persons known to be interested in the estate. If no one applies or petitions for appointment of a successor representative within the time indicated in the notice, the filed statement of resignation is ineffective as a termination of appointment and in any event is effective only upon the appointment and qualification of a successor representative and delivery of the assets to him.

Source:Laws 1974, LB 354, § 131, UPC § 3-610; Laws 1978, LB 650, § 13.

30-2454. Termination of appointment by removal; cause; procedure.

(a) A person interested in the estate may petition for removal of a personal representative for cause at any time. Upon filing of the petition, the court shall fix a time and place for hearing. Notice shall be given by the petitioner to the personal representative, and to other persons as the court may order. Except as otherwise ordered as provided in section 30-2450, after receipt of notice of removal proceedings, the personal representative shall not act except to account, to correct maladministration or preserve the estate. If removal is ordered, the court also shall direct by order the disposition of the assets remaining in the name of, or under the control of, the personal representative being removed.

(b) Cause for removal exists when removal would be in the best interests of the estate, or if it is shown that a personal representative or the person seeking his appointment intentionally misrepresented material facts in the proceedings leading to his appointment, or that the personal representative has disregarded an order of the court, has become incapable of discharging the duties of his office, or has mismanaged the estate or failed to perform any duty pertaining to the office. Unless the decedent's will directs otherwise, a personal representative appointed at the decedent's domicile, incident to securing appointment of himself or his nominee as ancillary personal representative, may obtain removal of another who was appointed personal representative in this state to administer local assets.

Source:Laws 1974, LB 354, § 132, UPC § 3-611.

Annotations

Once a personal representative is prohibited from acting under this section, an interested party may thereafter move under section 30-2457 for the appointment of a special administrator, based on the facts that the personal representative has received notice under this section and cannot act and that the appointment of a special administrator would be appropriate to preserve the estate or to secure its proper administration. In re Estate of Cooper, 275 Neb. 322, 746 N.W.2d 663 (2008).

Taken together, this section and section 30-2457 set forth a procedure by which to suspend and remove a personal representative and appoint a special administrator. In re Estate of Cooper, 275 Neb. 322, 746 N.W.2d 663 (2008).

Under this section, once the personal representative receives notice of a petition seeking his or her removal, he or she "shall not act," except in limited circumstances. Thus, notice to the personal representative under this section effectively suspends the personal representative. In re Estate of Cooper, 275 Neb. 322, 746 N.W.2d 663 (2008).

A proceeding under this section to remove a personal representative for cause is a special proceeding within the meaning of section 25-1902. In re Estate of Nemetz, 273 Neb. 918, 735 N.W.2d 363 (2007).

A proceeding under this section to remove a personal representative for cause is a special proceeding within the meaning of section 25-1902 and therefore is a final order and is appealable, even though it may not terminate the action or constitute a final disposition of the case. Failure to pay claims within the time limited by the court is not cause for removal of a personal representative when there are no funds with which to pay the claims, unless it appears that absent neglect on the part of the personal representative funds would have been available. In re Estate of Seidler, 241 Neb. 402, 490 N.W.2d 453 (1992).

Order of county court dismissing motion to remove personal representative was appealable. In re Estate of Snover, 233 Neb. 198, 443 N.W.2d 894 (1989).

Under subsection (b) of this section, the county court erred in failing to remove a personal representative who failed to comply with a progression order with respect to the filing of a federal estate tax return. In re Estate of Snover, 233 Neb. 198, 443 N.W.2d 894 (1989).

In order to remove a personal representative for cause, an interested person must file a petition for removal; an oral request at a hearing is insufficient for removal. In re Estate of Evans, 20 Neb. App. 602, 827 N.W.2d 314 (2013).

In the absence of a petition for removal of the personal representative and notice and hearing thereupon, the court cannot remove a personal representative. In re Estate of Evans, 20 Neb. App. 602, 827 N.W.2d 314 (2013).

Under subsection (b) of this section, the county court did not err in removing a personal representative who did not file inventory within the time period described in this section, failed to keep the remaining heirs appraised of the status of the inventory despite several requests for information, may have had a conflict of interest with the estate, failed to obtain an appraisal for the home despite requests from other heirs to do so, and claimed ownership of joint bank accounts which may have contained comingled funds. In re Estate of Webb, 20 Neb. App. 12, 817 N.W.2d 304 (2012).

30-2455. Termination of appointment; change of testacy status.

Except as otherwise ordered in formal proceedings, the probate of a will subsequent to the appointment of a personal representative in intestacy or under a will which is superseded by formal probate of another will, or the vacation of an informal probate of a will subsequent to the appointment of the personal representative thereunder, does not terminate the appointment of the personal representative although his powers may be reduced as provided in section 30-2425. Termination occurs upon appointment in informal or formal appointment proceedings of a person entitled to appointment under the later assumption concerning testacy. If no request for new appointment is made within thirty days after expiration of time for appeal from the order in formal testacy proceedings, or from the informal probate, changing the assumption concerning testacy, the previously appointed personal representative upon request may be appointed personal representative under the subsequently probated will, or as in intestacy as the case may be.

Source:Laws 1974, LB 354, § 133, UPC § 3-612.

30-2456. Successor personal representative.

Parts 3 and 4 of this article govern proceedings for appointment of a personal representative to succeed one whose appointment has been terminated. After appointment and qualification, a successor personal representative may be substituted in all actions and proceedings to which the former personal representative was a party, and no notice, process or claim which was given or served upon the former personal representative need be given to or served upon the successor in order to preserve any position or right the person giving the notice or filing the claim may thereby have obtained or preserved with reference to the former personal representative. Except as otherwise ordered by the court, the successor personal representative has the powers and duties in respect to the continued administration which the former personal representative would have had if his appointment had not been terminated.

Source:Laws 1974, LB 354, § 134, UPC § 3-613.

Annotations

Under this section and section 3-309 of the Uniform Commercial Code, a successor personal representative may enforce a lost note made payable to his or her decedent if the successor proves by clear and convincing evidence that (1) the predecessor personal representative was in possession of the notes and entitled to enforce them when the loss of possession occurred; (2) the loss of possession was not the result of a voluntary transfer by predecessor or lawful seizure; and (3) possession of the notes cannot be obtained because they were either destroyed, their whereabouts cannot be determined, or they are in the wrongful possession of an unknown person or a person who cannot be found or is not amenable to service of process. Fales v. Norine, 263 Neb. 932, 644 N.W.2d 513 (2002).

30-2457. Special administrator; appointment.

A special administrator may be appointed:

(1) informally by the registrar on the application of any interested person when necessary to protect the estate of a decedent prior to the appointment of a general personal representative or if a prior appointment has been terminated as provided in section 30-2452.

(2) in a formal proceeding by order of the court on the petition of any interested person and finding, after notice and hearing, that appointment is necessary to preserve the estate or to secure its proper administration including its administration in circumstances where a general personal representative cannot or should not act. If it appears to the court that an emergency exists, appointment may be ordered without notice.

Source:Laws 1974, LB 354, § 135, UPC § 3-614.

Annotations

An order denying a petition for a special administrator under this section and a concurrent request under this section for an order restraining the personal representative of the decedent's estate is a final, appealable order. In re Estate of Anderson, 311 Neb. 758, 974 N.W.2d 847 (2022).

A probate court's denial of an application for the appointment of a special administrator, brought pursuant to subsection (2) of this section, is a final, appealable order within the meaning of section 25-1902. In re Estate of Muncillo, 280 Neb. 669, 789 N.W.2d 37 (2010).

A special administrator is necessary to preserve an estate or secure its proper administration only when the personal representative is not lawfully fulfilling his or her duties under the Nebraska Probate Code, and at a minimum, requires an allegation that the personal representative is perpetrating fraud, has colluded with another to deprive the estate of a potential asset, is conflicted to properly administer the estate, or cannot act to preserve the estate, or the existence of some other equitable circumstance, plus some evidence of the personal representative's alleged dereliction of duty. In re Estate of Muncillo, 280 Neb. 669, 789 N.W.2d 37 (2010).

When an estate lacks a personal representative, this section anticipates the problem by providing for the appointment of a special administrator to administer an estate when a personal representative cannot or should not act. Thus, devisees do not have standing to sue on behalf of an estate merely because the estate lacks a personal representative. In re Estate of Hedke, 278 Neb. 727, 775 N.W.2d 13 (2009).

In the absence of evidence, no emergency basis under this section can be established upon which a county court could base its suspension of a personal representative and the appointment of a temporary special administrator. In re Estate of Cooper, 275 Neb. 322, 746 N.W.2d 663 (2008).

Once a personal representative is prohibited from acting under section 30-2454, an interested party may thereafter move under this section for the appointment of a special administrator, based on the facts that the personal representative has received notice under section 30-2454 and cannot act and that the appointment of a special administrator would be appropriate to preserve the estate or to secure its proper administration. In re Estate of Cooper, 275 Neb 322, 746 N.W.2d 663 (2008).

Taken together, section 30-2454 and this section set forth a procedure by which to suspend and remove a personal representative and appoint a special administrator. In re Estate of Cooper, 275 Neb. 322, 746 N.W.2d 663 (2008).

This section permits a special administrator to be appointed after notice when a personal representative cannot or should not act and also permits the appointment of a special administrator without notice when an emergency exists. In re Estate of Cooper, 275 Neb. 322, 746 N.W.2d 663 (2008).

A special administrator may be appointed for the limited purpose of accepting a claim against an estate. The imminent running of the statute of limitations by creditors against a decedent's estate constitutes an emergency for purposes of this section. This section does not require subsequent notice after the emergency appointment of a special administrator without notice. In re Estate of Wilson, 8 Neb. App. 467, 594 N.W.2d 695 (1999).

30-2458. Special administrator; who may be appointed.

(a) If a special administrator is to be appointed pending the probate of a will which is the subject of a pending application or petition for probate, the person named personal representative in the will shall be appointed if available and qualified.

(b) In other cases, any proper person may be appointed special administrator.

Source:Laws 1974, LB 354, § 136, UPC § 3-615; Laws 1978, LB 650, § 36.

30-2459. Special administrator; appointed informally; powers and duties.

A special administrator appointed by the registrar in informal proceedings pursuant to section 30-2457(1) has the duty to collect and manage the assets of the estate, to preserve them, to account therefor and to deliver them to the personal representative upon his qualification, or to such other person as shall be legally entitled to receive the same. The special administrator has the power of a personal representative under this code necessary to perform his duties.

Source:Laws 1974, LB 354, § 137, UPC § 3-616; Laws 1978, LB 650, § 14.

Annotations

A special administrator has the power of a personal representative under the probate code, including the right to partition assets in estates being administered. Znamenacek v. Menke, 210 Neb. 671, 316 N.W.2d 605 (1982).

30-2460. Special administrator; formal proceedings; powers and duties.

A special administrator appointed by order of the court in any formal proceeding has the power of a personal representative except as limited in the appointment and duties as prescribed in the order. The appointment may be for a specified time, to perform particular acts or on other terms as the court may direct.

Source:Laws 1974, LB 354, § 138, UPC § 3-617; Laws 1978, LB 650, § 15.

30-2461. Termination of appointment; special administrator.

The appointment of a special administrator terminates in accordance with the provisions of the order of appointment, other order of the court, or on the appointment of a personal representative. In other cases, the appointment of a special administrator is subject to termination as provided in sections 30-2451 to 30-2454.

Source:Laws 1974, LB 354, § 139, UPC § 3-618; Laws 1978, LB 650, § 16.

30-2462. Time of accrual of duties and powers.

The duties and powers of a personal representative commence upon his appointment. The powers of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter. Prior to appointment, a person named executor in a will may carry out written instructions of the decedent relating to his body, funeral and burial arrangements. A personal representative may ratify and accept acts on behalf of the estate done by others where the acts would have been proper for a personal representative.

Source:Laws 1974, LB 354, § 140, UPC § 3-701.

30-2463. Priority among different letters.

A person to whom general letters are issued first has exclusive authority under the letters until his appointment is terminated or modified. If, through error, general letters are afterwards issued to another, the first appointed representative may recover any property of the estate in the hands of the representative subsequently appointed, but the acts of the latter done in good faith before notice of the first letters are not void for want of validity of appointment.

Source:Laws 1974, LB 354, § 141, UPC § 3-702.

30-2464. General duties; relation and liability to persons interested in estate; standing to sue.

(a) A personal representative is a fiduciary who shall comply with the prudent investor rule set forth in sections 30-3883 to 30-3889. A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of any probated and effective will and this code, and as expeditiously and efficiently as is consistent with the best interests of the estate. He or she shall use the authority conferred upon him or her by this code, the terms of the will, if any, and any order in proceedings to which he or she is party for the best interests of successors to the estate.

(b) A personal representative shall not be surcharged for acts of administration or distribution if the conduct in question was authorized at the time. Subject to other obligations of administration, an informally probated will is authority to administer and distribute the estate according to its terms. An order of appointment of a personal representative, whether issued in informal or formal proceedings, is authority to distribute apparently intestate assets to the heirs of the decedent if, at the time of distribution, the personal representative is not aware of a pending testacy proceeding, a proceeding to vacate an order entered in an earlier testacy proceeding, a formal proceeding questioning his or her appointment or fitness to continue, or a supervised administration proceeding. Nothing in this section affects the duty of the personal representative to administer and distribute the estate in accordance with the rights of claimants, the surviving spouse, any minor and dependent children and any pretermitted child of the decedent as described elsewhere in this code.

(c) Except as to proceedings which do not survive the death of the decedent, a personal representative of a decedent domiciled in this state at his or her death has the same standing to sue and be sued in the courts of this state and the courts of any other jurisdiction as his or her decedent had immediately prior to death.

Source:Laws 1974, LB 354, § 142, UPC § 3-703; Laws 1997, LB 54, § 14; Laws 2003, LB 130, § 128.

Annotations

The district court erred in granting summary judgment to the copersonal representatives on the claim they breached their fiduciary duties where the estate's payment of a promissory note was invalid and, as such, there was a genuine issue of material fact as to the breach claim. In re Estate of Lakin, 310 Neb. 271, 965 N.W.2d 365 (2021).

A trust beneficiary's estate can seek to enforce the beneficiary's interests in the trust to the same extent that the beneficiary could have enforced his or her interests immediately before death, consistent with the standard provided in the Restatement (Third) of Trusts section 50, comment d(5). (2003). In re Trust Created by Hansen, 274 Neb. 199, 739 N.W.2d 170 (2007).

When a claim presented in the manner described in section 30-2486 and within the time limit described in section 30-2485 is disallowed by the personal representative, the dissatisfied claimant may, within sixty days of the mailing of notice of the disallowance, commence a proceeding against the personal representative in the district court insofar as the claim relates to matters within the district court's chancery or common-law jurisdiction. Holdrege Co-op Assn. v. Wilson, 236 Neb. 541, 463 N.W.2d 312 (1990).

Under subsection (a) of this section, the county court erred in failing to remove a personal representative who failed to comply with a progression order with respect to the filing of a federal estate tax return. In re Estate of Snover, 233 Neb. 198, 443 N.W.2d 894 (1989).

Section 24-517(1) confers upon the county court exclusive original jurisdiction of all matters relating to the decedents' estates, including the probate of wills and the construction thereof, except as provided in subsection (c) of this section and section 30-2486. Lenners v. St. Paul Fire & Marine Ins. Co., 18 Neb. App. 772, 793 N.W.2d 357 (2010).

If a licensed attorney serves in the capacity of a personal representative, the attorney is considered a fiduciary with the special skills of an attorney and is held to the standard of care of personal representatives possessing special skills; the attorney's actions are to be reviewed as actions of a personal representative with special skills, not as a licensed attorney. In re Estate of Snover, 4 Neb. App. 533, 546 N.W.2d 341 (1996).

30-2465. Personal representative to proceed without court order; exception.

A personal representative shall proceed expeditiously with the settlement and distribution of a decedent's estate and, except as otherwise specified or ordered in regard to a supervised personal representative, do so without adjudication, order, or direction of the court, but he may invoke the jurisdiction of the court, in proceedings authorized by this code, to resolve questions concerning the estate or its administration.

Source:Laws 1974, LB 354, § 143, UPC § 3-704.

30-2466. Repealed. Laws 1980, LB 694, § 13.

30-2467. Duty of personal representative; inventory and appraisal.

Within three months after appointment, a personal representative, who is not a special administrator or a successor to another representative who has previously discharged this duty, shall prepare and file an inventory of property owned by the decedent at the time of death, listing it with reasonable detail and indicating as to each listed item its fair market value as of the date of the decedent's death and the type and amount of any encumbrance that may exist with reference to any item.

The personal representative shall send a copy of the inventory to interested persons who request it and shall file the original of the inventory with the court.

Source:Laws 1974, LB 354, § 145, UPC § 3-706; Laws 1992, LB 999, § 2; Laws 1997, LB 770, § 1; Laws 2000, LB 968, § 15.

30-2468. Employment of appraisers.

The personal representative may employ a qualified and disinterested appraiser to assist him in ascertaining the fair market value as of the date of the decedent's death of any asset the value of which may be subject to reasonable doubt. Different persons may be employed to appraise different kinds of assets included in the estate. The names and addresses of any appraiser shall be indicated on the inventory with the item or items he appraised.

Source:Laws 1974, LB 354, § 146, UPC § 3-707.

30-2469. Duty of personal representative; supplementary inventory.

If any property not included in the original inventory comes to the knowledge of a personal representative or if the personal representative learns that the value or description indicated in the original inventory for any item is erroneous or misleading, the personal representative shall make a supplementary inventory or appraisement showing the market value as of the date of the decedent's death of the new item or the revised market value or descriptions and the appraisers or other data relied upon, if any, and file it with the court and furnish copies thereof or information thereof to persons interested in the new information.

Source:Laws 1974, LB 354, § 147, UPC § 3-708; Laws 1997, LB 770, § 2; Laws 2000, LB 968, § 16.

30-2470. 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.

Annotations

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).

30-2471. Power to avoid transfers.

The property liable for the payment of unsecured debts of a decedent includes all property transferred by him by any means which is in law void or voidable as against his creditors, and, subject to prior liens, the right to recover this property, so far as necessary for the payment of unsecured debts of the decedent, is exclusively in the personal representative.

Source:Laws 1974, LB 354, § 149, UPC § 3-710.

30-2472. Powers of personal representatives; in general.

Until termination of his appointment a personal representative has the same power over the title to property of the estate that an absolute owner would have, in trust however, for the benefit of the creditors and others interested in the estate. Unless otherwise specifically ordered by the court, this power may be exercised without notice, hearing, or order of court.

Source:Laws 1974, LB 354, § 150, UPC § 3-711.

30-2473. Improper exercise of power; breach of fiduciary duty.

If the exercise of power concerning the estate is improper, the personal representative is liable to interested persons for damage or loss resulting from breach of his fiduciary duty to the same extent as a trustee of an express trust. The rights of purchasers and others dealing with a personal representative shall be determined as provided in sections 30-2474 and 30-2475.

Source:Laws 1974, LB 354, § 151, UPC § 3-712.

Annotations

A motion to surcharge a personal representative is properly brought within the probate proceeding, because the facts underlying such motions ultimately concern the probate of the decedent's will and the distribution of the decedent's property. In re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 (2018).

30-2474. Sale, encumbrance, or transaction involving conflict of interest; voidable; exceptions.

Any sale or encumbrance to the personal representative, his spouse, agent or attorney, or any corporation or trust in which he has a substantial beneficial interest, or any transaction which is affected by a substantial conflict of interest on the part of the personal representative, is voidable by any person interested in the estate except one who has consented after fair disclosure, unless

(1) the will or a contract entered into by the decedent expressly authorized the transaction; or

(2) the transaction is approved by the court after notice to interested persons.

Source:Laws 1974, LB 354, § 152, UPC § 3-713.

Annotations

Evidence presented before a county court as to the amount which should be allowed by the court to reimburse an administratrix for expenses incurred in maintaining the decedent's cattle operation as an asset of decedent's estate where the administratrix was dealing with herself as landowner on which land the cattle grazed was not a contract as prohibited under this section as no money changed hands until after the reimbursement was presented to the court for approval with notice given to all interested parties. In re Estate of Kennedy, 220 Neb. 212, 369 N.W.2d 63 (1985).

30-2475. Persons dealing with personal representative; protection.

A person who in good faith either assists a personal representative or deals with him for value is protected as if the personal representative properly exercised his power. The fact that a person knowingly deals with a personal representative does not alone require the person to inquire into the existence of a power or the propriety of its exercise. Except for restrictions on powers of supervised personal representatives which are endorsed on letters as provided in section 30-2442, no provision in any will or order of court purporting to limit the power of a personal representative is effective except as to persons with actual knowledge thereof. A person is not bound to see to the proper application of estate assets paid or delivered to a personal representative. The protection here expressed extends to instances in which some procedural irregularity or jurisdictional defect occurred in proceedings leading to the issuance of letters, including a case in which the alleged decedent is found to be alive. The protection here expressed is not by substitution for that provided by comparable provisions of the laws relating to commercial transactions and laws simplifying transfers of securities by fiduciaries.

Source:Laws 1974, LB 354, § 153, UPC § 3-714.

30-2476. Transactions authorized for personal representatives; exceptions.

Except as restricted or otherwise provided by the will or by an order in a formal proceeding, without limiting the authority conferred by section 30-2472, and subject to the priorities stated in section 30-24,100, a personal representative, acting reasonably for the benefit of the interested persons, may properly:

(1) retain assets owned by the decedent pending distribution or liquidation including those in which the representative is personally interested or which are otherwise improper for trust investment;

(2) receive assets from fiduciaries or other sources;

(3) perform, compromise, or refuse performance of the decedent's contracts that continue as obligations of the estate, as he or she may determine under the circumstances. In performing enforceable contracts by the decedent to convey or lease land, the personal representative, among other possible courses of action, may:

(i) execute and deliver a deed of conveyance for cash payment of all sums remaining due or the purchaser's note for the sum remaining due secured by a mortgage or deed of trust on the land; or

(ii) deliver a deed in escrow with directions that the proceeds, when paid in accordance with the escrow agreement, be paid to the successors of the decedent, as designated in the escrow agreement;

(4) satisfy written charitable pledges of the decedent irrespective of whether the pledges constituted binding obligations of the decedent or were properly presented as claims, if in the judgment of the personal representative the decedent would have wanted the pledges completed under the circumstances;

(5) if funds are not needed to meet debts and expenses currently payable and are not immediately distributable, deposit or invest liquid assets of the estate, including money received from the sale of other assets, in federally insured interest-bearing accounts, readily marketable secured loan arrangements, or other prudent investments which would be reasonable for use by trustees generally;

(6) acquire or dispose of an asset, including land in this or another state, for cash or on credit, at public or private sale; and manage, develop, improve, exchange, partition, change the character of, or abandon an estate asset;

(7) make ordinary or extraordinary repairs or alterations in buildings or other structures, demolish any improvements, and raze existing or erect new party walls or buildings;

(8) subdivide, develop, or dedicate land to public use; make or obtain the vacation of plats and adjust boundaries; or adjust differences in valuation on exchange or partition by giving or receiving considerations; or dedicate easements to public use without consideration;

(9) enter for any purpose into a lease as lessor or lessee, with or without option to purchase or renew, for a term within or extending beyond the period of administration;

(10) enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement;

(11) abandon property when, in the opinion of the personal representative, it is valueless, or is so encumbered, or is in condition that it is of no benefit to the estate;

(12) vote stocks or other securities in person or by general or limited proxy;

(13) pay calls, assessments, and other sums chargeable or accruing against or on account of securities, unless barred by the provisions relating to claims;

(14) hold a security in the name of a nominee or in other form without disclosure of the interest of the estate but the personal representative is liable for any act of the nominee in connection with the security so held;

(15) insure the assets of the estate against damage, loss, and liability and himself or herself against liability as to third persons;

(16) borrow money with or without security to be repaid from the estate assets or otherwise; and advance money for the protection of the estate;

(17) effect a fair and reasonable compromise with any debtor or obligor, or extend, renew, or in any manner modify the terms of any obligation owing to the estate. If the personal representative holds a mortgage, pledge, or other lien upon property of another person, he or she may, in lieu of foreclosure, accept a conveyance or transfer of encumbered assets from the owner thereof in satisfaction of the indebtedness secured by lien;

(18) pay taxes, assessments, compensation of the personal representative, and other expenses incident to the administration of the estate;

(19) sell or exercise stock subscription or conversion rights; consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise;

(20) allocate items of income or expense to either estate income or principal, as permitted or provided by law;

(21) employ persons, including attorneys, auditors, investment advisors, or agents, even if they are associated with the personal representative, to advise or assist the personal representative in the performance of his or her administrative duties; act without independent investigation upon their recommendations; and instead of acting personally, employ one or more agents to perform any act of administration, whether or not discretionary;

(22) prosecute or defend claims or proceedings in any jurisdiction for the protection of the estate and of the personal representative in the performance of his or her duties;

(23) sell, mortgage, or lease any real or personal property of the estate or any interest therein for cash, for credit, or for part cash and part credit, and with or without security for unpaid balances;

(24) continue any unincorporated business or venture in which the decedent was engaged at the time of death;

(25) form a business entity that has limited liability, including a limited partnership, limited liability partnership, limited liability company, or corporation, for any business or venture in which the decedent was engaged at the time of death;

(26) provide for exoneration of the personal representative from personal liability in any contract entered into on behalf of the estate;

(27) satisfy and settle claims and distribute the estate as provided in the Nebraska Probate Code.

Source:Laws 1974, LB 354, § 154, UPC § 3-715; Laws 1978, LB 650, § 17; Laws 1993, LB 315, § 1; Laws 2010, LB758, § 3.

Annotations

Pursuant to subsections (18) and (21) of this section, failure to inform court of attorney fee payments did not violate this particular supervised administration because such fees were not "distributions." In re Estate of Snover, 233 Neb. 198, 443 N.W.2d 894 (1989).

The covenant of a personal representative's deed of lawful power and authority to convey real property is not a warranty of title and contains no implication of a covenant warranting titles. Ihde v. Kempkes, 228 Neb. 433, 422 N.W.2d 788 (1988).

A personal representative, under both the old and new probate code, has the authority to settle claims in favor of the estate against third parties. Brown v. Sherwood, 203 Neb. 209, 278 N.W.2d 565 (1979).

Under prior law the personal representative of a deceased person acting reasonably for the benefit of the interested persons may sell any real property of the estate following a court order with notice given in the manner prescribed by section 30-2220. Booth v. Reisdorff, 202 Neb. 7, 272 N.W.2d 915 (1978).

Generally, a beneficiary has no standing to prosecute a claim for the protection of the estate under subsection (22) of this section. Hampshire v. Powell, 10 Neb. App. 148, 626 N.W.2d 620 (2001).

Unless restricted by the provisions of a will or by an order of court in a formal proceeding, a personal representative is authorized to employ persons, including attorneys, to advise or assist in the performance of administrative duties. When a personal representative employs an attorney to advise or assist in the performance of administrative duties, the attorney serves as an attorney for the personal representative, and the attorney owes no duty of care to the estate or to the beneficiaries; the personal representative, not the estate, is the attorney's client. In re Estate of Snover, 4 Neb. App. 533, 546 N.W.2d 341 (1996).

30-2477. Powers and duties of successor personal representative.

A successor personal representative has the same power and duty as the original personal representative to complete the administration and distribution of the estate, as expeditiously as possible, but he shall not exercise any power expressly made personal to the executor named in the will.

Source:Laws 1974, LB 354, § 155, UPC § 3-716.

30-2478. Corepresentatives; when joint action required.

If two or more persons are appointed corepresentatives and unless the will provides otherwise, the concurrence of all is required on all acts connected with the administration and distribution of the estate. This restriction does not apply when any corepresentative receives and receipts for property due the estate, when the concurrence of all cannot readily be obtained in the time reasonably available for emergency action necessary to preserve the estate, when a corepresentative has been delegated to act for the others, or as provided in section 30-901. Persons dealing with a corepresentative, if actually unaware that another has been appointed to serve with him or her or if advised by the personal representative with whom they deal that he or she has authority to act alone for any of the reasons mentioned herein, are as fully protected as if the person with whom they dealt had been the sole personal representative.

Source:Laws 1974, LB 354, § 156, UPC § 3-717; Laws 2019, LB55, § 1.

30-2479. Powers of surviving personal representative.

Unless the terms of the will otherwise provide, every power exercisable by personal corepresentatives may be exercised by the one or more remaining after the appointment of one or more is terminated, and if one of two or more nominated as coexecutors is not appointed, those appointed may exercise all the powers incident to the office.

Source:Laws 1974, LB 354, § 157, UPC § 3-718.

30-2480. Compensation of personal representative.

A personal representative is entitled to reasonable compensation for his services. If a will provides for compensation of the personal representative and there is no contract with the decedent regarding compensation, he may renounce the provision before qualifying and be entitled to reasonable compensation. A personal representative also may renounce his right to all or any part of the compensation. A written renunciation of fee may be filed with the court.

Source:Laws 1974, LB 354, § 158, UPC § 3-719.

Annotations

A personal representative’s right to reasonable compensation under this section exists independently of the rights of the estate. In re Estate of Gsantner, 288 Neb. 222, 846 N.W.2d 646 (2014).

It is within a trial court’s discretion to weigh the factors that are relevant to a determination of the reasonableness of a fee. In re Estate of Gsantner, 288 Neb. 222, 846 N.W.2d 646 (2014).

The factors in section 30-2482 provide an indication of what facts the Legislature intended to be considered when determining a reasonable fee. In re Estate of Gsantner, 288 Neb. 222, 846 N.W.2d 646 (2014).

30-2481. Expenses in estate litigation.

If any personal representative or person nominated as personal representative defends or prosecutes any proceeding in good faith, whether successful or not he is entitled to receive from the estate his necessary expenses and disbursements including reasonable attorneys' fees incurred.

Source:Laws 1974, LB 354, § 159, UPC § 3-720.

Annotations

The district court did not abuse its discretion in finding that the personal representative acted in good faith in incurring attorney fees where the record showed she defended the will against vexatious litigation pursued by the decedent's children and to preserve the decedent's wishes, and her defense of the will was not primarily to increase her compensation. In re Estate of Larson, 311 Neb. 352, 972 N.W.2d 891 (2022).

This section does not allow the county court to deny fees because it finds that the personal representative or nominated personal representative who prosecuted or defended a proceeding in good faith should have known that the litigation position it took lacked merit, but the objective merits of a legal position could be relevant to whether a person defended or prosecuted a proceeding in good faith. In re Estate of Giventer, 310 Neb. 39, 964 N.W.2d 234 (2021).

The Nebraska Probate Code does not authorize attorney fees for a surviving spouse. A surviving spouse also acting as the personal representative is not entitled to attorney fees for legal actions that she took while she was not the personal representative and that were directed at obtaining assets that did not benefit the estate or come under its administration. In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).

Good faith for the purpose of this section is honesty in fact concerning conduct or a transaction, and is distinguished from mere negligence or honest mistake. Whether successful or not, a personal representative or person nominated as personal representative is entitled to receive his necessary expenses, including attorney fees, when he prosecutes or defends any proceeding in good faith. In re Estate of Watkins, 243 Neb. 583, 501 N.W.2d 292 (1993).

Fees allowed in probate proceedings under this section to persons nominated as personal representatives under a will are administration expenses and need not be paid pursuant to the probate claim statutes. In re Estate of Reimer, 229 Neb. 406, 427 N.W.2d 293 (1988).

The good faith required in this section is an ultimate fact for the court's determination upon all of the evidence. There are no rules defining it, rather, it depends upon the peculiar facts and circumstances existing in each case. In re Estate of Odineal, 220 Neb. 168, 368 N.W.2d 800 (1985).

30-2482. Proceedings for review of employment of agents and compensation of personal representatives and employees of estate.

(1) After notice to all interested persons or on petition of an interested person or on appropriate motion if administration is supervised, the propriety of employment of any person by a personal representative including any attorney, auditor, investment advisor, or other specialized agent or assistant, the reasonableness of the compensation of any person so employed, or the reasonableness of the compensation determined by the personal representative for his or her own services, may be reviewed by the court. Any person who has received excessive compensation from an estate for services rendered may be ordered to make appropriate refunds.

(2) Factors to be considered as guides in determining the reasonableness of a fee include the following:

(a) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the service properly;

(b) The likelihood, if apparent to the personal representative, that the acceptance of the particular employment will preclude the person employed from other employment;

(d) The amount involved and the results obtained;

(e) The time limitations imposed by the personal representative or by the circumstances;

(f) The nature and length of the relationship between the personal representative and the person performing the services; and

(g) The experience, reputation, and ability of the person performing the services.

Source:Laws 1974, LB 354, § 160, UPC § 3-721; Laws 1980, LB 694, § 10.

Annotations

Under the Nebraska Probate Code, the Legislature has not expressly provided that a county is responsible for personal representative compensation. Therefore, a court lacks the authority to order a county to pay for a personal representative's fees and expenses. In re Estate of Hutton, 306 Neb. 579, 946 N.W.2d 669 (2020).

Section 30-2405 and this section are part of a scheme to give jurisdiction for the enforcement of probate claims to the county court, and that jurisdiction is concurrent with the jurisdiction of the district court to enforce such claims. Eagle Partners v. Rook, 301 Neb. 947, 921 N.W.2d 98 (2018).

The language of this section does not preclude using the probate claims procedure established in sections 30-2483 through 30-2498. Eagle Partners v. Rook, 301 Neb. 947, 921 N.W.2d 98 (2018).

The factors in this section provide an indication of what facts the Legislature intended to be considered when determining a reasonable fee. In re Estate of Gsantner, 288 Neb. 222, 846 N.W.2d 646 (2014).

If a claim for attorney fees in a probate matter is brought under this section, the burden is on the party challenging the reasonableness of the fee to show excessive compensation. From the date of this opinion forward, all claims for attorney fees in probate matters shall be filed pursuant to this section and not pursuant to section 30-2486. In re Estate of Wagner, 253 Neb. 498, 571 N.W.2d 76 (1997).

When challenging attorney fees awarded from an estate for services rendered, the burden is on the challenger to show excessive compensation. In reviewing the award of attorney fees in cases arising under this section, the standard of review in the district court and appellate courts is for error appearing on the record. In re Estate of Nicholson, 241 Neb. 447, 488 N.W.2d 554 (1992).

The standard of review in both the district court and in the Supreme Court in cases arising under this statute is for error appearing on the record. In re Estate of Snyder, 217 Neb. 356, 348 N.W.2d 136 (1984).

30-2483. Notice to creditors.

(a) Unless notice has already been given under this article and except when an appointment of a personal representative is made pursuant to subdivision (4) of section 30-2408, the clerk of the court upon the appointment of a personal representative shall publish a notice once a week for three successive weeks in a newspaper of general circulation in the county announcing the appointment and the address of the personal representative, and notifying creditors of the estate to present their claims within two months after the date of the first publication of the notice or be forever barred. The first publication shall be made within thirty days after the appointment. The party instituting or maintaining the proceeding or his or her attorney is required to mail the published notice and give proof thereof in accordance with section 25-520.01.

(b) If the decedent was fifty-five years of age or older or resided in a medical institution as defined in subsection (1) of section 68-919, the notice shall also be provided to the Department of Health and Human Services with the decedent's social security number and, if the decedent was predeceased by a spouse, the name and social security number of such spouse. The notice shall be provided to the department in a delivery manner and at an address designated by the department, which manner may include email. The department shall post the acceptable manner of delivering notice on its website. Any notice that fails to conform with such manner is void.

Source:Laws 1974, LB 354, § 161, UPC § 3-801; Laws 1978, LB 650, § 18; Laws 2008, LB928, § 1; Laws 2017, LB268, § 3; Laws 2019, LB593, § 1.

Annotations

Where the debt was for deferred wages earned by the claimant during the decedent's life, rather than wages earned after the decedent's death or an administrative expense of the estate, a claim must be filed pursuant to this section in order for the debt to be a valid debt of the estate. In re Estate of Lakin, 310 Neb. 271, 965 N.W.2d 365 (2021).

The 3-year limitations period of section 30-2485(a)(2) applied to the Department of Health and Human Services' Medicaid estate recovery claim because the personal representative failed to send notice to the department within 5 days of the date on which notice to creditors was first published, as required by this section and section 25-520.01. In re Estate of Cushing, 283 Neb. 571, 810 N.W.2d 741 (2012).

This section requires notice to be sent to the Department of Health and Human Services under certain circumstances. To comply with this requirement, notice must be sent in accordance with section 25-520.01. In re Estate of Cushing, 283 Neb. 571, 810 N.W.2d 741 (2012).

30-2484. Statutes of limitations.

Unless an estate is insolvent the personal representative, with the consent of all successors, may waive any defense of limitations available to the estate. If the defense is not waived, no claim which was barred by any statute of limitations at the time of the decedent's death shall be allowed or paid. The running of any statute of limitations measured from some other event than death and advertisement for claims against a decedent is suspended during the two months following the decedent's death but resumes thereafter as to claims not barred pursuant to the sections which follow. For purposes of any statute of limitations, the proper presentation of a claim under section 30-2486 is equivalent to commencement of a proceeding on the claim.

Source:Laws 1974, LB 354, § 162, UPC § 3-802.

Annotations

The two month suspension in this section means that by reason of a debtor's death, two months is added to the normal period of limitations before a debt is barred. Sparks v. Mach, 314 Neb. 724, 993 N.W.2d 119 (2023).

Under the Nebraska Probate Code, the first statute of limitations to apply will accomplish a bar. Sparks v. Mach, 314 Neb. 724, 993 N.W.2d 119 (2023).

Under this section, the running of any statute of limitations, measured from some event other than the death of and subsequent advertisement for claims against a decedent, is suspended during the two months following the decedent's death but resumes thereafter as to claims not barred pursuant to any applicable statute of limitations. Sparks v. Mach, 314 Neb. 724, 993 N.W.2d 119 (2023).

Filing a claim against an estate with the clerk of the court is equivalent to the commencement of a proceeding on the claim. Mulinix v. Roberts, 261 Neb. 800, 626 N.W.2d 220 (2001).

30-2485. Limitations on presentation of claims.

(a) All claims against a decedent's estate which arose before the death of the decedent, including claims of the state and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, if not barred earlier by other statute of limitations, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented as follows:

(1) Within two months after the date of the first publication of notice to creditors if notice is given in compliance with sections 25-520.01 and 30-2483, except that claims barred by the nonclaim statute at the decedent's domicile before the first publication for claims in this state are also barred in this state. If any creditor has a claim against a decedent's estate which arose before the death of the decedent and which was not presented within the time allowed by this subdivision, including any creditor who did not receive notice, such creditor may apply to the court within sixty days after the expiration date provided in this subdivision for additional time and the court, upon good cause shown, may allow further time not to exceed thirty days;

(2) Within three years after the decedent's death if notice to creditors has not been given in compliance with sections 25-520.01 and 30-2483.

(b) All claims, other than for costs and expenses of administration as defined in section 30-2487, against a decedent's estate which arise at or after the death of the decedent, including claims of the state and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented as follows:

(1) A claim based on a contract with the personal representative, within four months after performance by the personal representative is due;

(2) Any other claim, within four months after it arises.

(1) Any proceeding to enforce any mortgage, pledge, or other lien upon property of the estate; or

(2) To the limits of the insurance protection only, any proceeding to establish liability of the decedent or the personal representative for which he or she is protected by liability insurance.

Source:Laws 1974, LB 354, § 163, UPC § 3-803; Laws 1991, LB 95, § 1; Laws 2009, LB35, § 20.

Annotations

1. Scope

2. Miscellaneous

1. Scope

Under the Nebraska Probate Code, the first statute of limitations to apply will accomplish a bar. Sparks v. Mach, 314 Neb. 724, 993 N.W.2d 119 (2023).

For purposes of this section, a demand against the trust assets is not a claim against the decedent's estate. In re Estate of Giventer, 310 Neb. 39, 964 N.W.2d 234 (2021).

Because the Nebraska Probate Code requires that all claims, whether absolute or contingent, be presented within certain time periods or be barred against the estate, a contingency's unfulfilled status does not automatically defeat a claim. In re Estate of Ryan, 302 Neb. 821, 925 N.W.2d 336 (2019).

A court cannot extend the time for filing a claim that arose after death. In re Estate of Karmazin, 299 Neb. 315, 908 N.W.2d 381 (2018).

The 3-year limitations period of subsection (a)(2) of this section applied to the Department of Health and Human Services' Medicaid estate recovery claim because the personal representative failed to send notice to the department within 5 days of the date on which notice to creditors was first published, as required by sections 30-2483 and 25-520.01. In re Estate of Cushing, 283 Neb. 571, 810 N.W.2d 741 (2012).

Time limitations set forth in subsection (a) of this section applied to the Department of Health and Human Services' Medicaid estate recovery claim, because under the section, under which the claim was made, section 68-919, the indebtedness to the department arose during the lifetime of the recipient. In re Estate of Cushing, 283 Neb. 571, 810 N.W.2d 741 (2012).

A claim against a decedent's estate which is excepted from the time limitations of this section remains subject to the statute of limitations governing the underlying claim. Babbitt v. Hronik, 261 Neb. 513, 623 N.W.2d 700 (2001).

Claims for reimbursement of medical expenses made pursuant to section 68-1036.02 arise at or after death and, therefore, are subject to the limitations period imposed by subsection (b)(2) of this section. In re Estate of Tvrz, 260 Neb. 991, 620 N.W.2d 757 (2001).

Pursuant to subsection (c)(1) of this section, a judgment lien on the proceeds from a sale is not a claim subject to the provisions of the Nebraska Probate Code. A judgment lien is not a claim and is not subject to the provisions of the Nebraska Probate Code. McCook Nat. Bank v. Bennett, 248 Neb. 567, 537 N.W.2d 353 (1995).

The purpose of the nonclaim statute is facilitation and expedition of proceedings for distribution of a decedent's estate, including an early appraisal of the respective rights of interested persons and prompt settlement of demands against the estate. In re Estate of Masopust, 232 Neb. 936, 443 N.W.2d 274 (1989).

The requirements of this section are mandatory, and where a claim is not filed within the time provided in the statute, it is barred. In re Estate of Masopust, 232 Neb. 936, 443 N.W.2d 274 (1989).

The defense of recoupment is not barred by this section. In re Estate of Massie, 218 Neb. 103, 353 N.W.2d 735 (1984).

The time limits under this section for presentation of claims are not applicable when the recovery sought is solely limited to the extent of insurance protection. Estate of Hansen v. Bergmeier, 20 Neb. App. 458, 825 N.W.2d 224 (2013).

This section does not allow the institution of proceedings against a discharged personal representative while the estate is closed. Estate of Hansen v. Bergmeier, 20 Neb. App. 458, 825 N.W.2d 224 (2013).

2. Miscellaneous

Although identifying the amount of a claim is not statutorily required, doing so advances the purpose of this section. In re Estate of Karmazin, 299 Neb. 315, 908 N.W.2d 381 (2018).

An award of interest commencing approximately 7 months after the decedent's death was improper because under subsection (a)(2) of this section, the time for the original presentation of the Department of Health and Human Services' claim expired 3 years after the decedent's death, and interest would not commence until 60 days thereafter, pursuant to section 30-2488(e). In re Estate of Cushing, 283 Neb. 571, 810 N.W.2d 741 (2012).

Subsection (a)(1) of this section applies to all creditors who may ask the county court for an extension of time to file a claim, but subsection (a)(2) of this section applies only to creditors who do not receive notice. Therefore, both subsections (a)(1) and (2) of this section apply to creditors who do not receive notice. In re Estate of Emery, 258 Neb. 789, 606 N.W.2d 750 (2000).

The creditor bears the burden of proving that it filed a claim within the required period. Katskee v. Nevada Bob's Golf of Neb., 238 Neb. 654, 472 N.W.2d 372 (1991).

Good cause within the meaning of subsection (a)(1) of this section envisions a claimant proceeding diligently toward presenting a claim against the decedent's estate, but the presentation of the claim is prevented by fraud, accident, mistake, unavoidable misfortune, or excusable neglect. In re Estate of Feuerhelm, 215 Neb. 872, 341 N.W.2d 342 (1983).

A claimant who has a claim for the proceeds of a decedent's liability insurance under subsection (c)(2) of this section is entitled to have the estate reopened for the limited purpose of service of process in the civil action filed to establish liability and liability insurance coverage. Estate of Hansen v. Bergmeier, 20 Neb. App. 458, 825 N.W.2d 224 (2013).

Before suit can be filed, a closed estate, with a discharged personal representative, must be reopened and a personal representative appointed (or reappointed) even when seeking only liability insurance proceeds. Estate of Hansen v. Bergmeier, 20 Neb. App. 458, 825 N.W.2d 224 (2013).

A claim by the Department of Health and Human Services Finance and Support for reimbursement of medical assistance benefits pursuant to section 68-1036.02 is one that necessarily falls within the provisions of subsection (b) of this section as arising "at or after" the death of the decedent who is a recipient of those benefits. In re Estate of Tvrz, 9 Neb. App. 98, 608 N.W.2d 226 (2000).

Subsection (c) of this section does not provide for a direct action against an insurer, but, rather, an action against the estate of an alleged tort-feasor with the award being limited to the amount of available liability insurance. Robertson v. Motor Club Ins. Assn., 8 Neb. App. 758, 602 N.W.2d 27 (1999).

Administration expenses, including attorney fees, are only excepted from the time-bar provisions for bringing claims. Administration expenses may be brought under the probate claims procedure. Kerrigan & Line v. Foote, 5 Neb. App. 397, 558 N.W.2d 837 (1997).

Subsection (c)(2) of this section provides an exception to the general time-bar provisions of the probate code, and establishes a potential creditor's right to have an estate reopened for the limited purpose of service of process in a civil action to establish liability and liability insurance coverage, but this section does not authorize a suit against a former personal representative who has already been discharged for the purpose of establishing liability and insurance coverage. Mach v. Schmer, 4 Neb. App. 819, 550 N.W.2d 385 (1996).

30-2486. Manner of presentation of claims.

Claims against a decedent's estate may be presented as follows:

(1) The claimant may file a written statement of the claim, in the form prescribed by rule, with the clerk of the court. The claim is deemed presented on the filing of the claim with the court. If a claim is not yet due, the date when it will become due shall be stated. If the claim is contingent or unliquidated, the nature of the uncertainty shall be stated. If the claim is secured, the security shall be described. Failure to describe correctly the security, the nature of any uncertainty, and the due date of a claim not yet due does not invalidate the presentation made.

(2) The claimant may commence a proceeding against the personal representative in any court which has subject matter jurisdiction and the personal representative may be subjected to jurisdiction, to obtain payment of his or her claim against the estate, but the commencement of the proceeding must occur within the time limited for presenting the claim. No presentation of claim is required in regard to matters claimed in proceedings against the decedent which were pending at the time of his or her death.

(3) If a claim is presented under subsection (1), no proceeding thereon may be commenced more than sixty days after the personal representative has mailed a notice of disallowance; but, in the case of a claim which is not presently due or which is contingent or unliquidated, the personal representative may consent to an extension of the sixty-day period, or to avoid injustice the court, on petition, may order an extension of the sixty-day period, but in no event shall the extension run beyond the applicable statute of limitations.

Source:Laws 1974, LB 354, § 164, UPC § 3-804; Laws 1981, LB 42, § 20.

Annotations

1. Presenting or filing claim

2. Miscellaneous

1. Presenting or filing claim

An otherwise valid amended complaint, filed after a complaint filed prematurely under section 30-2404 but after the appointment or reappointment of a personal representative, is sufficient to commence a proceeding within the meaning of subsection (2) of this section. Sparks v. Mach, 314 Neb. 724, 993 N.W.2d 119 (2023).

Under subsection (2) of this section, an action against a decedent's estate is not commenced unless a claimant files a lawsuit against the personal representative of the estate. Sparks v. Mach, 314 Neb. 724, 993 N.W.2d 119 (2023).

The claimant failed to properly file or present a claim against the decedent's estate when he discussed a promissory note with the copersonal representative and the attorney for the personal representatives approximately 29 days after the decedent's death and mailed a copy of the note, a letter, and his calculation of interest to them the next day. In re Estate of Lakin, 310 Neb. 271, 965 N.W.2d 365 (2021).

For purposes of this section, a demand against the trust assets is not a claim against the decedent's estate. In re Estate of Giventer, 310 Neb. 39, 964 N.W.2d 234 (2021).

Mere notice to a representative of an estate regarding a possible demand or claim against the estate does not constitute presenting or filing a claim under this section. J.R. Simplot Co. v. Jelinek, 275 Neb. 548, 748 N.W.2d 17 (2008); In re Estate of Feuerhelm, 215 Neb. 872, 341 N.W.2d 342 (1983).

Giving the language in this section a consistent, harmonious, and sensible construction, it is apparent that the filing of a claim is a separate and distinct act from the initiation of a legal proceeding to pursue payment of the claim. Therefore, the filing of a claim does not commence an action and does not in and of itself require the services of an attorney. In re Estate of Cooper, 275 Neb. 297, 746 N.W.2d 653 (2008).

The filing of a statement of claim is an administrative step by which the personal representative is advised, in accordance with the probate statutes, of the identities of the creditors and the amounts of their claims. In re Estate of Cooper, 275 Neb. 297, 746 N.W.2d 653 (2008).

When a claim presented in the manner described in this section and within the time limit described in section 30-2485 is disallowed by the personal representative, the dissatisfied claimant may, within 60 days of the mailing of notice of the disallowance, commence a proceeding against the personal representative in the district court insofar as the claim relates to matters within the district court's chancery or common-law jurisdiction. Holdrege Co-op Assn. v. Wilson, 236 Neb. 541, 463 N.W.2d 312 (1990).

Implicit in the language "the claimant may file a written statement of the claim . . . ." is the requirement that the creditor to whom the decedent is obligated is the claimant who can present a demand against the estate. J.J. Schaefer Livestock Hauling v. Gretna St. Bank, 229 Neb. 580, 428 N.W.2d 185 (1988); In re Estate of Feuerhelm, 215 Neb. 872, 341 N.W.2d 342 (1983).

The Nebraska Probate Code provides two methods of presenting a claim against a decedent's estate: A claim can be presented by filing a written statement thereof with the clerk of the probate court or by commencing a proceeding against the personal representative in any court which has jurisdiction. Estate of Hansen v. Bergmeier, 20 Neb. App. 458, 825 N.W.2d 224 (2013).

For purposes of any statute of limitations, the proper presentation of a claim is equivalent to commencement of a proceeding on the claim. Lenners v. St. Paul Fire & Marine Ins. Co., 18 Neb. App. 772, 793 N.W.2d 357 (2010).

2. Miscellaneous

Under the Nebraska Probate Code, the first statute of limitations to apply will accomplish a bar. Sparks v. Mach, 314 Neb. 724, 993 N.W.2d 119 (2023).

Although identifying the amount of a claim is not statutorily required, doing so advances the purpose of section 30-2485. In re Estate of Karmazin, 299 Neb. 315, 908 N.W.2d 381 (2018).

If a claim is brought pursuant to the probate claims procedure, the burden is on the claimant seeking compensation to prove that he or she rendered services and the reasonable value thereof. In re Estate of Wagner, 253 Neb. 498, 571 N.W.2d 76 (1997).

While the plaintiffs did voluntarily dismiss a county court action after the nonclaim statute had run and were thus barred from pursuing a claim against the estate, they remained free to proceed against the decedent's insurer to the extent of insurance coverage available. Tank v. Peterson, 214 Neb. 34, 332 N.W.2d 669 (1983).

Section 24-517(1) confers upon the county court exclusive original jurisdiction of all matters relating to the decedents' estates, including the probate of wills and the construction thereof, except as provided in section 30-2464(c) and this section. Lenners v. St. Paul Fire & Marine Ins. Co., 18 Neb. App. 772, 793 N.W.2d 357 (2010).

Although this section provides authority for a claimant to present a claim against the estate by commencing an action against the personal representative, this section does not provide authority for a claimant to commence an action against a former personal representative who has already been discharged and whose appointment has already been terminated. Mach v. Schmer, 4 Neb. App. 819, 550 N.W.2d 385 (1996).

30-2487. Payment of claims; order.

(a) If the applicable assets of the estate are insufficient to pay all claims in full, the personal representative shall make payment in the following order:

(1) Costs and expenses of administration;

(2) Reasonable funeral expenses;

(3) Debts and taxes with preference under federal law;

(4) Reasonable and necessary medical and hospital expenses of the last illness of the decedent, including compensation of persons attending the decedent and claims filed by the Department of Health and Human Services pursuant to section 68-919;

(5) Debts and taxes with preference under other laws of this state;

(6) All other claims.

(b) No preference shall be given in the payment of any claim over any other claim of the same class, and a claim due and payable shall not be entitled to a preference over claims not due.

(c) For purposes of this section and section 30-2485, costs and expenses of administration includes expenses incurred in taking possession or control of estate assets and the management, protection, and preservation of the estate assets, expenses related to the sale of estate assets, and expenses in the day-to-day operation and continuation of business interests for the benefit of the estate.

Source:Laws 1974, LB 354, § 165, UPC § 3-805; Laws 1975, LB 481, § 17; Laws 1994, LB 1224, § 40; Laws 1996, LB 1044, § 90; Laws 2006, LB 1248, § 53; Laws 2007, LB296, § 49; Laws 2009, LB35, § 21.

30-2488. Allowance of claims; transfer of certain claims; procedures.

(a) As to claims presented in the manner described in section 30-2486 within the time limit prescribed in section 30-2485, the personal representative may mail a notice to any claimant stating that the claim has been disallowed. If, after allowing or disallowing a claim, the personal representative changes his or her decision concerning the claim, he or she shall notify the claimant. The personal representative may not change a disallowance of a claim after the time for the claimant to file a petition for allowance or to commence a proceeding on the claim has run and the claim has been barred. Every claim which is disallowed in whole or in part by the personal representative is barred so far as not allowed unless the claimant files a petition for allowance in the court or commences a proceeding against the personal representative not later than sixty days after the mailing of the notice of disallowance or partial allowance if the notice warns the claimant of the impending bar. Failure of the personal representative to mail notice to a claimant of action on his or her claim for sixty days after the time for original presentation of the claim has expired has the effect of a notice of allowance.

(b) At any time within fourteen days of the filing of a petition for allowance of a claim, the personal representative may transfer the claim to the regular docket of the county court by filing with the court a notice of transfer. The county court shall hear and determine the claim in the same manner as actions originally filed in the county court on the regular docket. The county court may order such additional pleadings as are necessary. If the claim is greater than the jurisdictional amount in subdivision (5) of section 24-517 and the personal representative requests transfer of the claim to the district court, upon payment by the personal representative to the clerk of the district court of a docket fee of the district court, the county court shall transfer the claim to the district court as provided in section 25-2706. If the claim is transferred to the district court, a jury trial is allowed unless waived by the parties as provided under section 25-1104.

(c) Upon the petition of the personal representative or of a claimant in a proceeding for the purpose, the court may allow in whole or in part any claim or claims filed with the clerk of the court in due time and not barred by subsection (a) of this section. Notice in this proceeding shall be given to the claimant, the personal representative, and those other persons interested in the estate as the court may direct by order entered at the time the proceeding is commenced.

(d) A final judgment in a proceeding in any court against a personal representative to enforce a claim against a decedent's estate is an allowance of the claim.

(e) Unless otherwise provided in any final judgment in any court entered against the personal representative, allowed claims bear interest at the legal rate for the period commencing sixty days after the time for original presentation of the claim has expired unless based on a contract making a provision for interest, in which case they bear interest in accordance with that provision.

Source:Laws 1974, LB 354, § 166, UPC § 3-806; Laws 1981, LB 42, § 21; Laws 1983, LB 137, § 4; Laws 1991, LB 422, § 4; Laws 2001, LB 269, § 3; Laws 2018, LB193, § 65.

Annotations

Under the Nebraska Probate Code, the first statute of limitations to apply will accomplish a bar. Sparks v. Mach, 314 Neb. 724, 993 N.W.2d 119 (2023).

An award of interest commencing approximately 7 months after the decedent's death was improper because under section 30-2485(a)(2), the time for the original presentation of the Department of Health and Human Services' claim expired 3 years after the decedent's death, and interest would not commence until 60 days thereafter, pursuant to subsection (e) of this section. In re Estate of Cushing, 283 Neb. 571, 810 N.W.2d 741 (2012).

The 60-day period set forth in subsection (a) of this section is a jurisdictional requirement. If, after being given notice of this time period, the claimant fails to act, the claim is barred. In re Estate of Hockemeier, 280 Neb. 420, 786 N.W.2d 680 (2010).

A personal representative may disallow a claim that has been allowed by the failure to object. In re Estate of Dickie, 261 Neb. 533, 623 N.W.2d 666 (2001).

There is no constitutional right to trial by jury in appeals to the district court from the county court in probate matters. In re Estate of Massie, 218 Neb. 103, 353 N.W.2d 735 (1984).

Subsection (a) of this section imposes a time limitation on a decision changing disallowance of a claim to allowance but does not impose a time limit on changing an allowance to a disallowance. Lenners v. St. Paul Fire & Marine Ins. Co., 18 Neb. App. 772, 793 N.W.2d 357 (2010).

Subsection (a) of this section treats a failure to disallow a claim as an allowance of the claim, but also authorizes a personal representative to change his or her decision regarding allowance or disallowance of a claim. Lenners v. St. Paul Fire & Marine Ins. Co., 18 Neb. App. 772, 793 N.W.2d 357 (2010).

A personal representative may disallow a claim that has been allowed by the failure to object. In re Estate of Krichau, 1 Neb. App. 398, 501 N.W.2d 722 (1992).

30-2489. Payment of claims.

(a) Upon the expiration of two months from the date of the first publication of the notice to creditors, the personal representative shall proceed to pay the claims allowed against the estate in the order of priority prescribed, after making allowance for costs and expenses of administration and after making provision for homestead, family and support allowances, for claims already presented which have not yet been allowed or whose allowance has been appealed, and for unbarred claims which may yet be presented. By petition to the court in a proceeding for the purpose, or by appropriate motion if the administration is supervised, a claimant whose claim has been allowed but not paid as provided herein may secure an order directing the personal representative to pay the claim to the extent that funds of the estate are available for the payment.

(b) The personal representative at any time may pay any enforceable claim which has not been barred, with or without formal presentation, but he is personally liable to any other claimant whose claim is allowed and who is injured by such payment if

(1) the payment was made before the expiration of the time limit stated in subsection (a) and the personal representative failed to require the payee to give adequate security for the refund of any of the payment necessary to pay other claimants; or

(2) the payment was made, due to the negligence or willful fault of the personal representative, in such manner as to deprive the injured claimant of his priority.

Source:Laws 1974, LB 354, § 167, UPC § 3-807; Laws 1978, LB 650, § 19.

Annotations

A petition requesting an order to direct the personal representative to pay a claim that has been allowed but not paid may only be brought in the county court. Kerrigan & Line v. Foote, 5 Neb. App. 397, 558 N.W.2d 837 (1997).

30-2490. Individual liability of personal representative.

(a) Unless otherwise provided in the contract, a personal representative is not individually liable on a contract properly entered into in his fiduciary capacity in the course of administration of the estate unless he fails to reveal his representative capacity and identify the estate in the contract.

(b) A personal representative is individually liable for obligations arising from ownership or control of the estate or for torts committed in the course of administration of the estate only if he is personally at fault.

(c) Claims based on contracts entered into by a personal representative in his fiduciary capacity, on obligations arising from ownership or control of the estate or on torts committed in the course of estate administration, may be asserted against the estate by proceeding against the personal representative in his fiduciary capacity, whether or not the personal representative is individually liable therefor.

(d) Issues of liability as between the estate and the personal representative individually may be determined in a proceeding for accounting, surcharge or indemnification or other appropriate proceeding.

Source:Laws 1974, LB 354, § 168, UPC § 3-808.

Annotations

Under subsection (a) of this section, it is the personal representative's duty to disclose his or her representative capacity in order to avoid personal liability in contract, and the personal representative bears the burden of proof on this issue. Purbaugh v. Jurgensmeier, 240 Neb. 679, 483 N.W.2d 757 (1992).

30-2491. Secured claims.

Payment of a secured claim is upon the basis of the amount allowed if the creditor surrenders his security; otherwise payment is upon the basis of one of the following:

(1) if the creditor exhausts his security before receiving payment, upon the amount of the claim allowed less the fair value of the security; or

(2) if the creditor does not have the right to exhaust his security or has not done so, upon the amount of the claim allowed less the value of the security determined by converting it into money according to the terms of the agreement pursuant to which the security was delivered to the creditor, or by the creditor and personal representative by agreement, arbitration, compromise or litigation.

Source:Laws 1974, LB 354, § 169, UPC § 3-809.

30-2492. Claims not due and contingent or unliquidated claims.

(a) If a claim which will become due at a future time or a contingent or unliquidated claim becomes due or certain before the distribution of the estate, and if the claim has been allowed or established by a proceeding, it is paid in the same manner as presently due and absolute claims of the same class.

(b) In other cases the personal representative or, on petition of the personal representative or the claimant in a special proceeding for the purpose, the court may provide for payment as follows:

(1) if the claimant consents, he may be paid the present or agreed value of the claim, taking any uncertainty into account;

(2) arrangement for future payment, or possible payment, on the happening of the contingency or on liquidation may be made by creating a trust, giving a mortgage, obtaining a bond or security from a distributee, or otherwise.

Source:Laws 1974, LB 354, § 170, UPC § 3-810.

30-2493. Counterclaims.

In allowing a claim the personal representative may deduct any counterclaim which the estate has against the claimant. In determining a claim against an estate a court shall reduce the amount allowed by the amount of any counterclaims and, if the counterclaims exceed the claim, render a judgment against the claimant in the amount of the excess. A counterclaim, liquidated or unliquidated, may arise from a transaction other than that upon which the claim is based. A counterclaim may give rise to relief exceeding in amount or different in kind from that sought in the claim.

Source:Laws 1974, LB 354, § 171, UPC § 3-811.

30-2494. Execution and levies prohibited.

No execution may issue upon nor may any levy be made against any property of the estate under any judgment against a decedent or a personal representative, but this section shall not be construed to prevent the enforcement of mortgages, pledges or other liens existing at the time of death upon real or personal property in an appropriate proceeding.

Source:Laws 1974, LB 354, § 172, UPC § 3-812.

Annotations

A judgment lien on the proceeds from a sale is not a claim subject to the provisions of the Nebraska Probate Code. A judgment lien against decedent in existence prior to the death of decedent falls within this exclusion of the Nebraska Probate Code. McCook Nat. Bank v. Bennett, 248 Neb. 567, 537 N.W.2d 353 (1995).

This section allows for the enforcement of judgment liens existing at the time of death in other proceedings outside the probate proceedings. In re Estate of Stretesky, 29 Neb. App. 338, 955 N.W.2d 1 (2021).

30-2495. Compromise of claims.

When a claim against the estate has been presented, the personal representative may, if it appears for the best interest of the estate, compromise the claim, whether due or not due, absolute or contingent, liquidated or unliquidated.

Source:Laws 1974, LB 354, § 173, UPC § 3-813.

30-2496. Encumbered assets.

If any assets of the estate are encumbered by mortgage, pledge, lien, or other security interest, the personal representative may pay the encumbrance or any part thereof, renew or extend any obligation secured by the encumbrance or convey or transfer the assets to the creditor in satisfaction of his lien, in whole or in part, whether or not the holder of the encumbrance has filed a claim, if it appears to be for the best interest of the estate. Payment of an encumbrance does not increase the share of the distributee entitled to the encumbered assets unless the distributee is entitled to exoneration.

Source:Laws 1974, LB 354, § 174, UPC § 3-814.

Annotations

Personal representative has discretion to satisfy an encumbrance immediately if it is in the best interests of the estate. McCook Nat. Bank v. Bennett, 248 Neb. 567, 537 N.W.2d 353 (1995).

30-2497. Administration in more than one state; duty of personal representative.

(a) All assets of estates being administered in this state are subject to all claims, allowances and charges existing or established against the personal representative wherever appointed.

(b) If the estate either in this state or as a whole is insufficient to cover all family exemptions and allowances determined by the law of the decedent's domicile, prior charges and claims, after satisfaction of the exemptions, allowances and charges, each claimant whose claim has been allowed either in this state or elsewhere in administrations of which the personal representative is aware is entitled to receive payment of an equal proportion of his claim. If a preference or security in regard to a claim is allowed in another jurisdiction but not in this state, the creditor so benefited is to receive dividends from local assets only upon the balance of his claim after deducting the amount of the benefit.

(c) In case the family exemptions and allowances, prior charges and claims of the entire estate exceed the total value of the portions of the estate being administered separately and this state is not the state of the decedent's last domicile, the claims allowed in this state shall be paid their proportion if local assets are adequate for the purpose, and the balance of local assets shall be transferred to the domiciliary personal representative. If local assets are not sufficient to pay all claims allowed in this state the amount to which they are entitled, local assets shall be marshaled so that each claim allowed in this state is paid its proportion as far as possible, after taking into account all dividends on claims allowed in this state from assets in other jurisdictions.

Source:Laws 1974, LB 354, § 175, UPC § 3-815.

30-2498. Final distribution to domiciliary representative.

The estate of a nonresident decedent being administered by a personal representative appointed in this state shall, if there is a personal representative of the decedent's domicile willing to receive it, be distributed to the domiciliary personal representative for the benefit of the successors of the decedent unless (1) by virtue of the decedent's will, if any, and applicable choice of law rules, the successors are identified pursuant to the local law of this state without reference to the local law of the decedent's domicile; (2) the personal representative of this state, after reasonable inquiry, is unaware of the existence or identity of a domiciliary personal representative; or (3) the court orders otherwise in a proceeding for a closing order under section 30-24,115 or incident to the closing of a supervised administration. In other cases, distribution of the estate of a decedent shall be made in accordance with the other parts of this article.

Source:Laws 1974, LB 354, § 176, UPC § 3-816.

30-2499. Successors' rights if no administration.

In the absence of administration, the heirs and devisees are entitled to the estate in accordance with the terms of a probated will or the laws of intestate succession. Devisees may establish title by the probated will to devised property. Persons entitled to property by homestead allowance, exemption or intestacy may establish title thereto by proof of the decedent's ownership, his death, and their relationship to the decedent. Successors take subject to all charges incident to administration, including the claims of creditors and allowances of surviving spouse and dependent children, and subject to the rights of others resulting from abatement, retainer, advancement, and ademption.

Source:Laws 1974, LB 354, § 177, UPC § 3-901; Laws 1975, LB 481, § 18.

30-24,100. Distribution; order in which assets appropriated; abatement.

(a) Except as provided in subsection (b) and except as provided in connection with the share of the surviving spouse who elects to take an elective share, shares of distributees abate, without any preference or priority as between real and personal property, in the following order: (1) property not disposed of by the will; (2) residuary devises; (3) general devises; (4) specific devises. For purposes of abatement, a general devise charged on any specific property or fund is a specific devise to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.

(b) If the will expresses an order of abatement, or if the testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement stated in subsection (a), the shares of the distributees abate as may be found necessary to give effect to the intention of the testator.

(c) If the subject of a preferred devise is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.

Source:Laws 1974, LB 354, § 178, UPC § 3-902.

Annotations

The district court did not misapply the rules of abatement where one party was devised 50.6 percent of the property specifically devised by the will and the other party was devised 49.4 percent, and the debts and funeral and administrative expenses were apportioned 50 percent to each. In re Estate of Larson, 311 Neb. 352, 972 N.W.2d 891 (2022).

30-24,101. Right of retainer.

Unless a different intention is indicated by the will, the amount of a noncontingent indebtedness of a successor to the estate if due, or its present value if not due, shall be offset against the successor's interest; but the successor has the benefit of any defense which would be available to him in a direct proceeding for recovery of the debt.

Source:Laws 1974, LB 354, § 179, UPC § 3-903.

30-24,102. Interest on general pecuniary devise.

General pecuniary devises bear interest at the legal rate beginning one year after the first appointment of a personal representative until payment, unless a contrary intent is indicated by the will.

Source:Laws 1974, LB 354, § 180, UPC § 3-904.

Annotations

A will is an instrument in writing. Therefore, when interest is required to be paid on a pecuniary devise pursuant to this section, the legal rate of interest called for is 12 percent per annum, as required by section 45-104. In re Estate of Peterson, 230 Neb. 744, 433 N.W.2d 500 (1988).

30-24,103. Penalty clause for contest.

A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.

Source:Laws 1974, LB 354, § 181, UPC § 3-905.

Annotations

A no contest clause is unenforceable if probable cause exists for instituting proceedings. In re Estate of Barger, 303 Neb. 817, 931 N.W.2d 660 (2019).

30-24,104. Distribution in kind; valuation; method.

(a) Unless a contrary intention is indicated by the will, the distributable assets of a decedent's estate shall be distributed in kind to the extent possible through application of the following provisions:

(1) A specific devisee is entitled to distribution of the thing devised to him, and a spouse or child who has selected particular assets of an estate as provided in section 30-2323 shall receive the items selected.

(2) Any homestead or family allowance or devise payable in money may be satisfied by value in kind provided

(i) the person entitled to the payment has not demanded payment in cash;

(ii) the property distributed in kind is valued at fair market value as of the date of its distribution, and

(iii) no residuary devisee has requested that the asset in question remain a part of the residue of the estate.

(3) For the purpose of valuation under paragraph (2), securities regularly traded on recognized exchanges, if distributed in kind, are valued at the price for the last sale of like securities traded on the business day prior to distribution or, if there was no sale on that day, at the median between amounts bid and offered at the close of that day. Assets consisting of sums owed the decedent or the estate by solvent debtors as to which there is no known dispute or defense are valued at the sum due with accrued interest or discounted to the date of distribution. For assets which do not have readily ascertainable values, a valuation as of a date not more than thirty days prior to the date of distribution, if otherwise reasonable, controls. For purposes of facilitating distribution, the personal representative may ascertain the value of the assets as of the time of the proposed distribution in any reasonable way, including the employment of qualified appraisers, even if the assets may have been previously appraised.

(4) The residuary estate shall be distributed in kind if there is no objection to the proposed distribution and it is practicable to distribute undivided interests. In other cases, residuary property may be converted into cash for distribution.

(b) After the probable charges against the estate are known, the personal representative may mail or deliver a proposal for distribution to all persons who have a right to object to the proposed distribution. The right of any distributee to object to the proposed distribution on the basis of the kind or value of asset he is to receive, if not waived earlier in writing, terminates if he fails to object in writing received by the personal representative within thirty days after mailing or delivery of the proposal.

Source:Laws 1974, LB 354, § 182, UPC § 3-906.

Annotations

The time limitation on objections found in subsection (b) of this section is not limited in its application to distribution under a will. In re Estate of Marsh, 247 Neb. 17, 524 N.W.2d 571 (1994).

Once a settlement agreement is entered into, the distribution of the property is pursuant to the agreement and cannot be affected by a section concerning the distribution of property in kind. In re Estate of Marsh, 2 Neb. App. 649, 513 N.W.2d 35 (1994).

30-24,105. Distribution in kind; evidence.

If distribution in kind is made, the personal representative shall execute an instrument or deed of distribution assigning, transferring, or releasing the assets to the distributee as evidence of the distributee's title to the property. If the distribution is of real property, the deed of distribution shall be recorded with the register of deeds in each county in which such real property is situated and shall indicate the court in which probate proceedings were conducted.

Source:Laws 1974, LB 354, § 183, UPC § 3-907; Laws 1984, LB 405, § 1; Laws 2001, LB 105, § 1.

30-24,106. Distribution; right or title of distributee.

Proof that a distributee has received an instrument or deed of distribution of assets in kind, or payment in distribution, from a personal representative is conclusive evidence that the distributee has succeeded to the interest of the estate in the distributed assets, as against all persons interested in the estate, except that the personal representative may recover the assets or their value if the distribution was improper.

Source:Laws 1974, LB 354, § 184, UPC § 3-908.

30-24,107. Improper distribution; liability of distributee.

Unless the distribution or payment no longer can be questioned because of adjudication, estoppel, or limitation, a distributee of property improperly distributed or paid, or a claimant who was improperly paid, is liable to return the property improperly received and its income since distribution if he has the property. If he does not have the property, then he is liable to return the value as of the date of disposition of the property improperly received and its income and gain received by him.

Source:Laws 1974, LB 354, § 185, UPC § 3-909.

Annotations

Under this section, intervenors in a probate action do not have standing to maintain an action against a distributee to recoup property claimed to have been wrongfully distributed or retained. In re Estate of Schurman, 30 Neb. App. 259, 967 N.W.2d 734 (2021).

30-24,108. Purchases from distributees protected.

If property distributed in kind or a security interest therein is acquired by a purchaser or lender for value from a distributee who has received an instrument or deed of distribution from the personal representative, the purchaser or lender takes title free of any claims of the estate and incurs no personal liability to the estate, whether or not the distribution was proper. To be protected under this provision, a purchaser or lender need not inquire whether a personal representative acted properly in making the distribution in kind.

Source:Laws 1974, LB 354, § 186, UPC § 3-910.

30-24,109. Partition for purpose of distribution.

When two or more heirs or devisees are entitled to distribution of undivided interests in any real or personal property of the estate, the personal representative or one or more of the heirs or devisees may petition the court, prior to the formal or informal closing of the estate, to make partition. After notice to the interested heirs or devisees, the court shall partition the property in the same manner as provided by the law for civil actions of partition. The court may direct the personal representative to sell any property which cannot be partitioned without prejudice to the owners and which cannot conveniently be allotted to any one party.

Source:Laws 1974, LB 354, § 187, UPC § 3-911.

Annotations

Pursuant to this section, the words “partition” and “partitioned” mean partition in kind. In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012).

The last sentence of this section addresses the sale of property that cannot be partitioned in kind. In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012).

The Nebraska Supreme Court has long expressed a preference for partition in kind. In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012).

Under this section, the court is to follow the procedures for partition in civil actions. In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012).

If a county court finds that certain property is subject to partition, it may direct the personal representative to sell the property. The personal representative is to perform the duties and responsibilities otherwise incumbent upon a referee. In re Estate of Failla, 278 Neb. 770, 773 N.W.2d 793 (2009).

If the court finds that the real estate in question cannot be partitioned without prejudice or conveniently allotted to one person, it shall direct the personal representative to sell the property and perform the other duties that would otherwise be those of a referee. In re Estate of Kentopp v. Kentopp, 206 Neb. 776, 295 N.W.2d 275 (1980).

This section gives the county court exclusive original jurisdiction over actions to partition or sell real estate in a decedent's estate during the pendency of estate proceedings. In re Estate of Kentopp v. Kentopp, 206 Neb. 776, 295 N.W.2d 275 (1980).

30-24,110. Private agreements among successors to decedent binding on personal representative.

Subject to the rights of creditors and taxing authorities, competent successors may agree among themselves to alter the interests, shares, or amounts to which they are entitled under the will of the decedent, or under the laws of intestacy, in any way that they provide in a written contract executed by all who are affected by its provisions. The personal representative shall abide by the terms of the agreement subject to his obligation to administer the estate for the benefit of creditors, to pay all taxes and costs of administration, and to carry out the responsibilities of his office for the benefit of any successors of the decedent who are not parties. Personal representatives of decedents' estates are not required to see to the performance of trusts if the trustee thereof is another person who is willing to accept the trust. Accordingly, trustees of a testamentary trust are successors for the purposes of this section. Nothing herein relieves trustees of any duties owed to beneficiaries of trusts.

Source:Laws 1974, LB 354, § 188, UPC § 3-912.

30-24,111. Distributions to trustee.

(a) Before distributing to a trustee, the personal representative may require that the trust be registered if the state in which it is to be administered requires registration and that the trustee inform the beneficiaries as provided in section 30-3878.

(b) If the trust instrument does not excuse the trustee from giving bond, the personal representative may petition the appropriate court to require that the trustee post bond if he or she apprehends that distribution might jeopardize the interests of persons who are not able to protect themselves, and he or she may withhold distribution until the court has acted.

(c) No inference of negligence on the part of the personal representative shall be drawn from his or her failure to exercise the authority conferred by subsections (a) and (b).

Source:Laws 1974, LB 354, § 189, UPC § 3-913; Laws 2003, LB 130, § 129.

30-24,112. Disposition of unclaimed assets.

Disposition of unclaimed assets, fees, legacies, devises, and distributive shares shall be subject to the provisions of sections 25-2714 to 25-2717.

Source:Laws 1974, LB 354, § 190.

30-24,113. Distribution to persons under disability.

A personal representative may discharge his obligation to distribute to any person under legal disability by distributing to his conservator, or any other person authorized by this code or otherwise to give a valid receipt and discharge for the distribution.

Source:Laws 1974, LB 354, § 191, UPC § 3-915.

30-24,114. Apportionment of estate taxes.

Estate taxes shall be apportioned as provided in section 77-2108.

Source:Laws 1974, LB 354, § 192.

30-24,115. Formal proceedings terminating administration, testate or intestate; order of general protection.

(a) A personal representative or any interested person may petition for an order of complete settlement of the estate. The personal representative may petition at any time, and any other interested person may petition after one year from the appointment of the original personal representative except that no petition under this section may be entertained until the time for presenting claims which arose prior to the death of the decedent has expired. The petition may request the court to determine testacy, if not previously determined, to consider the final account or compel or approve an accounting and distribution, to construe any will or determine heirs and adjudicate the final settlement and distribution of the estate. After notice to all interested persons and hearing, the court may enter an order or orders, on appropriate conditions, determining the persons entitled to distribution of the estate and, as circumstances require, approving settlement and directing or approving distribution of the estate and discharging the personal representative from further claim or demand of any interested person.

(b) If one or more heirs or devisees were omitted as parties in, or were not given notice of, a previous formal testacy proceeding, the court, on proper petition for an order of complete settlement of the estate under this section, and after notice to the omitted or unnotified persons and other interested parties determined to be interested on the assumption that the previous order concerning testacy is conclusive as to those given notice of the earlier proceeding, may determine testacy as it affects the omitted persons and confirm or alter the previous order of testacy as it affects all interested persons as appropriate in the light of the new proofs. In the absence of objection by an omitted or unnotified person, evidence received in the original testacy proceeding shall constitute prima facie proof of due execution of any will previously admitted to probate, or of the fact that the decedent left no valid will if the prior proceedings determined this fact.

Source:Laws 1974, LB 354, § 193, UPC § 3-1001.

30-24,116. Formal proceedings terminating testate administration; order construing will without adjudicating testacy.

A personal representative administering an estate under an informally probated will or any devisee under an informally probated will may petition for an order of settlement of the estate which will not adjudicate the testacy status of the decedent. The personal representative may petition at any time, and a devisee may petition after one year, from the appointment of the original personal representative, except that no petition under this section may be entertained until the time for presenting claims which arose prior to the death of the decedent has expired. The petition may request the court to consider the final account or compel or approve an accounting and distribution, to construe the will and adjudicate final settlement and distribution of the estate. After notice to all devisees and the personal representative and hearing, the court may enter an order or orders, on appropriate conditions, determining the persons entitled to distribution of the estate under the will and, as circumstances require, approving settlement and directing or approving distribution of the estate and discharging the personal representative from further claim or demand of any devisee who is a party to the proceeding and those he represents. If it appears that a part of the estate is intestate, the proceedings shall be dismissed or amendments made to meet the provisions of section 30-24,115.

Source:Laws 1974, LB 354, § 194, UPC § 3-1002.

30-24,117. Closing estates; by sworn statement of personal representative.

(a) Unless prohibited by order of the court and except for estates being administered in supervised administration proceedings, a personal representative may close an estate by filing with the court no earlier than five months after the date of original appointment of a general personal representative for the estate, a verified statement stating that he, or a prior personal representative whom he has succeeded, has:

(1) published notice to creditors as provided by section 30-2483 and that the first publication occurred more than four months prior to the date of the statement;

(2) fully administered the estate of the decedent by making payment, settlement or other disposition of all claims which were presented, expenses of administration and estate, inheritance and other death taxes, except as specified in the statement, and that the assets of the estate have been distributed to the persons entitled. If any claims remain undischarged, the statement shall state whether the personal representative has distributed the estate subject to possible liability with the agreement of the distributees or it shall state in detail other arrangements which have been made to accommodate outstanding liabilities; and

(3) sent a copy thereof to all distributees of the estate and to all creditors or other claimants of whom he is aware whose claims are neither paid nor barred and has furnished a full account in writing of his administration to the distributees whose interests are affected thereby.

(b) If no proceedings involving the personal representative are pending in the court one year after the closing statement is filed, the appointment of the personal representative terminates.

Source:Laws 1974, LB 354, § 195, UPC § 3-1003.

30-24,118. Liability of distributees to claimants.

After assets of an estate have been distributed and subject to section 30-24,120, an undischarged claim not barred may be prosecuted in a proceeding against one or more distributees. No distributee shall be liable to claimants for amounts in excess of the value of his distribution as of the time of distribution. As between distributees, each shall bear the cost of satisfaction of unbarred claims as if the claim had been satisfied in the course of administration. Any distributee who shall have failed to notify other distributees of the demand made upon him by the claimant in sufficient time to permit them to join in any proceeding in which the claim was asserted against him loses his right of contribution against other distributees.

Source:Laws 1974, LB 354, § 196, UPC § 3-1004.

30-24,119. Limitations on proceedings against personal representative.

Unless previously barred by adjudication and except as provided in the closing statement, the rights of successors and of creditors whose claims have not otherwise been barred against the personal representative for breach of fiduciary duty are barred unless a proceeding to assert the same is commenced within six months after the filing of the closing statement. The rights barred by reason of the filing of the closing statement do not include rights to recover from a personal representative for fraud, misrepresentation, or inadequate disclosure related to the settlement of the decedent's estate.

Source:Laws 1974, LB 354, § 197, UPC § 3-1005; Laws 1978, LB 650, § 37.

Annotations

This section provides claimants with a limited right to proceed against a personal representative after the personal representative has already been discharged, where the personal representative has committed a breach of fiduciary duty. Mach v. Schmer, 4 Neb. App. 819, 550 N.W.2d 385 (1996).

30-24,120. Limitations on actions and proceedings against distributees.

Unless previously adjudicated in a formal testacy proceeding or in a proceeding settling the accounts of a personal representative or otherwise barred, the claim of any claimant to recover from a distributee who is liable to pay the claim, and the right of any heir or devisee, or of a successor personal representative acting in their behalf, to recover property improperly distributed or the value thereof from any distributee is forever barred at the later of (1) three years after the decedent's death; or (2) one year after the time of distribution thereof. This section does not bar an action to recover property or value received as the result of fraud.

Source:Laws 1974, LB 354, § 198, UPC § 3-1006.

30-24,121. Certificate discharging liens securing fiduciary performance.

After his appointment has terminated, the personal representative, his sureties, or any successor of either, upon the filing of a verified application showing, so far as is known by the applicant, that no action concerning the estate is pending in any court, is entitled to receive a certificate from the registrar that the personal representative appears to have fully administered the estate in question. The certificate evidences discharge of any lien on any property given to secure the obligation of the personal representative in lieu of bond or any surety, but does not preclude action against the personal representative or the surety.

Source:Laws 1974, LB 354, § 199, UPC § 3-1007.

30-24,122. Subsequent administration.

If other property of the estate is discovered after an estate has been settled and the personal representative discharged or his appointment terminated, the court upon petition of any interested person and upon notice may appoint the same or a successor personal representative to administer the subsequently discovered estate. If a new appointment is made, unless the court orders otherwise, the provisions of this code apply as appropriate; but no claim previously barred may be asserted in the subsequent administration.

Source:Laws 1974, LB 354, § 200, UPC § 3-1008.

30-24,123. Effect of approval of agreements involving trusts, inalienable interests, or interests of third persons.

A compromise of any controversy as to admission to probate of any instrument offered for formal probate as the will of a decedent, the construction, validity, or effect of any probated will, the rights or interests in the estate of the decedent of any successor, or the administration of the estate, if approved in a formal proceeding in the court for that purpose, is binding on all the parties thereto including those unborn, unascertained or who could not be located. An approved compromise is binding even though it may affect a trust or an inalienable interest. A compromise does not impair the rights of creditors or of taxing authorities who are not parties to it.

Source:Laws 1974, LB 354, § 201, UPC § 3-1101.

Annotations

Sections 30-24,123 and 30-24,124 allow competent parties having beneficial interests in an estate pursuant to a will clouded by a good faith contest or controversy to reach a settlement agreement, which will be approved by a court if the agreement is just and reasonable. In re Estate of Marsh, 2 Neb. App. 649, 513 N.W.2d 35 (1994).

30-24,124. Procedure for securing court approval of compromise.

The procedure for securing court approval of a compromise is as follows:

(1) The terms of the compromise shall be set forth in an agreement in writing which shall be executed by all competent persons and parents acting for any minor child having beneficial interests or having claims which will or may be affected by the compromise. Execution is not required by any person whose identity cannot be ascertained or whose whereabouts is unknown and cannot reasonably be ascertained.

(2) Any interested person, including the personal representative or a trustee, then may submit the agreement to the court for its approval and for execution by the personal representative, the trustee of every affected testamentary trust, and other fiduciaries and representatives.

(3) After notice to all interested persons or their representatives, including the personal representative of the estate and all affected trustees of trusts, the court, if it finds that the contest or controversy is in good faith and that the effect of the agreement upon the interests of persons represented by fiduciaries or other representatives is just and reasonable, shall make an order approving the agreement and directing all fiduciaries under its supervision to execute the agreement. Minor children represented only by their parents may be bound only if their parents join with other competent persons in execution of the compromise. Upon the making of the order and the execution of the agreement, all further disposition of the estate is in accordance with the terms of the agreement.

Source:Laws 1974, LB 354, § 202, UPC § 3-1102.

Annotations

To approve a compromise of any controversy as to admission to probate of any instrument offered for formal probate as the will of a decedent, the construction, validity, or effect of any probated will, the rights or interests in the estate of the decedent of any successor, or the administration of the estate, the court must follow statutory procedures of this section and find both that (1) the contest or controversy is in good faith and (2) the effect of the agreement upon the interests of persons represented by fiduciaries or other representatives is just and reasonable. In re Estate of Ryan, 313 Neb. 970, 987 N.W.2d 634 (2023).

Under subdivision (1) of this section, a settlement agreement made in open court on the record, agreed to by all of the parties to the litigation, and approved by the court is enforceable. In re Estate of Mithofer, 243 Neb. 722, 502 N.W.2d 454 (1993).

Under subdivision (3) of this section, once a compromise agreement is entered into and approved by the court, the disposition of the property in the estate is in accordance with the terms of the agreement. In re Estate of Marsh, 2 Neb. App. 649, 513 N.W.2d 35 (1994).

30-24,125. Collection of personal property by affidavit.

(a) Thirty days after the death of a decedent, any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action belonging to the decedent shall make payment of the indebtedness or deliver the tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action to a person claiming to be the successor of the decedent upon being presented an affidavit made by or on behalf of the successor stating:

(1) the value of all of the personal property in the decedent's estate, wherever located, less liens and encumbrances, does not exceed one hundred thousand dollars;

(2) thirty days have elapsed since the death of the decedent as shown in a certified or authenticated copy of the decedent's death certificate attached to the affidavit;

(3) the claiming successor's relationship to the decedent or, if there is no relationship, the basis of the successor's claim to the personal property;

(4) the person or persons claiming as successors under the affidavit swear or affirm that all statements in the affidavit are true and material and further acknowledge that any false statement may subject the person or persons to penalties relating to perjury under section 28-915;

(5) no application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction; and

(6) the claiming successor is entitled to payment or delivery of the property.

(b) A transfer agent of any security shall change the registered ownership on the books of a corporation from the decedent to the successor or successors upon the presentation of an affidavit as provided in subsection (a).

(c) Upon the presentation of an affidavit as provided in subsection (a), the claiming successor may endorse or negotiate any instrument evidencing a debt belonging to the decedent that is a check, draft, or other negotiable instrument that is payable to the decedent or the decedent's estate. Notwithstanding the provisions of section 3-403, 3-417, or 3-420, Uniform Commercial Code, a financial institution accepting such a check, draft, or other negotiable instrument presented for deposit in such manner is discharged from all claims for the amount accepted.

(d)(1) Except as provided in subdivision (d)(2), in addition to compliance with the requirements of subsection (a), a person seeking a transfer of a certificate of title to a motor vehicle, motorboat, all-terrain vehicle, utility-type vehicle, or minibike shall be required to furnish to the Department of Motor Vehicles an affidavit showing applicability of this section and compliance with the requirements of this section to authorize the department to issue a new certificate of title.

(2) After ten years have elapsed since the estate has closed, the Department of Motor Vehicles shall waive the requirements of subdivision (a)(5) if the person seeking a transfer of a certificate of title provides evidence that the estate has closed and a certified authenticated copy of the decedent's death certificate.

Source:Laws 1974, LB 354, § 203, UPC § 3-1201; Laws 1996, LB 909, § 1; Laws 1999, LB 100, § 4; Laws 1999, LB 141, § 6; Laws 2004, LB 560, § 2; Laws 2009, LB35, § 22; Laws 2010, LB650, § 2; Laws 2022, LB1124, § 1; Laws 2023, LB157, § 8; Laws 2024, LB1200, § 2.
Operative Date: April 16, 2024

30-24,126. Effect of affidavit.

The person paying, delivering, transferring, or issuing personal property or the evidence thereof pursuant to affidavit is discharged and released to the same extent as if he dealt with a personal representative of the decedent. He is not required to see to the application of the personal property or evidence thereof or to inquire into the truth of any statement in the affidavit. If any person to whom an affidavit is delivered refuses to pay, deliver, transfer, or issue any personal property or evidence thereof, it may be recovered or its payment, delivery, transfer, or issuance compelled upon proof of their right in a proceeding brought for the purpose by or on behalf of the persons entitled thereto. Any person to whom payment, delivery, transfer or issuance is made is answerable and accountable therefor to any personal representative of the estate or to any other person having a superior right.

Source:Laws 1974, LB 354, § 204, UPC § 3-1202.

30-24,127. Small estates; summary administrative procedure.

If it appears from the inventory and appraisal that the value of the entire estate, less liens and encumbrances, does not exceed homestead allowance, exempt property, family allowance, costs and expenses of administration, reasonable funeral expenses, and reasonable and necessary medical and hospital expenses of the last illness of the decedent, the personal representative, without giving notice to creditors, may immediately disburse and distribute the estate to the persons entitled thereto and file a closing statement as provided in section 30-24,128.

Source:Laws 1974, LB 354, § 205, UPC § 3-1203.

30-24,128. Small estates; closing by sworn statement of personal representative.

(a) Unless prohibited by order of the court and except for estates being administered by supervised personal representatives, a personal representative may close an estate administered under the summary procedures of section 30-24,127 by filing with the court, at any time after disbursement and distribution of the estate, a verified statement stating that:

(1) to the best knowledge of the personal representative, the value of the entire estate, less liens and encumbrances, did not exceed homestead allowance, exempt property, family allowance, costs and expenses of administration, reasonable funeral expenses, and reasonable and necessary medical and hospital expenses of the last illness of the decedent;

(2) the personal representative has fully administered the estate by disbursing and distributing it to the persons entitled thereto; and

(3) the personal representative has sent a copy of the closing statement to all distributees of the estate and to all creditors or other claimants of whom he is aware whose claims are neither paid nor barred and has furnished a full account in writing of his administration to the distributees whose interests are affected.

(b) If no actions or proceedings involving the personal representative are pending in the court one year after the closing statement is filed, the appointment of the personal representative terminates.

Source:Laws 1974, LB 354, § 206, UPC § 3-1204.

30-24,129. Succession to real property by affidavit.

(a) Thirty days after the death of a decedent, any person claiming as successor to the decedent's interest in real property in this state may file or cause to be filed on his or her behalf, with the register of deeds office of a county in which the real property of the decedent that is the subject of the affidavit is located, an affidavit describing the real property owned by the decedent and the interest of the decedent in the property. The affidavit shall be signed by all persons claiming as successors or by parties legally acting on their behalf and shall be prima facie evidence of the facts stated in the affidavit. The affidavit shall state:

(1) the value of the decedent's interest in all real property in the decedent's estate located in this state does not exceed one hundred thousand dollars. The value of the decedent's interest shall be determined from the value of the property shown on the assessment rolls for the year in which the decedent died less real estate taxes and interest thereon if any is due at the time of death;

(2) thirty days have elapsed since the death of the decedent as shown in a certified or authenticated copy of the decedent's death certificate attached to the affidavit;

(3) no application or petition for the appointment of a personal representative is pending or has been granted in the State of Nebraska;

(4) the claiming successor is entitled to the real property either by reason of the homestead allowance, exempt property allowance, or family allowance, by intestate succession, or by devise under the will of the decedent. If claiming by devise under the will of the decedent, a copy of such will shall be attached to the affidavit;

(5) the claiming successor has made an investigation and has been unable to determine any subsequent will;

(6) no other person has a right to the interest of the decedent in the described property;

(7) the claiming successor's relationship to the decedent and the value of the entire estate of the decedent subject to probate; and

(8) the person or persons claiming as successors under the affidavit swear or affirm that all statements in the affidavit are true and material and further acknowledge that any false statement may subject the person or persons to penalties relating to perjury under section 28-915.

(b) The recorded affidavit and certified or authenticated copy of the decedent's death certificate shall also be recorded by the claiming successor in any other county in this state in which the real property of the decedent that is the subject of the affidavit is located.

Source:Laws 1999, LB 100, § 2; Laws 2009, LB35, § 23; Laws 2014, LB693, § 1; Laws 2021, LB501, § 62; Laws 2024, LB1195, § 4.
Effective Date: July 19, 2024

30-24,130. Effect of affidavit.

(a) A successor named in an affidavit under section 30-24,129 shall have the same protection as a distributee who has received a deed of distribution from a personal representative as provided in section 30-24,106.

(b) A purchaser of real property from or lender to a person named as a successor in an affidavit under section 30-24,129 shall have the same protection as a person purchasing from or lending to a distributee who has received a deed of distribution from a personal representative as provided in section 30-24,108.

(c) Nothing in this section affects or prevents any proceeding to enforce any mortgage, pledge, or other lien upon the real property described in the affidavit.

Source:Laws 1999, LB 100, § 3.

30-2501. Definitions.

In this article

(1) Local administration means administration by a personal representative appointed in this state pursuant to appointment proceedings described in Article 24.

(2) Local personal representative includes any personal representative appointed in this state pursuant to appointment proceedings described in Article 24 and excludes foreign personal representatives who acquire the power of a local personal representative pursuant to section 30-2506.

(3) Resident creditor means a person domiciled in, or doing business in this state, who is, or could be, a claimant against an estate of a nonresident decedent.

Source:Laws 1974, LB 354, § 207, UPC § 4-101.

30-2502. Payment of debt and delivery of property to domiciliary foreign personal representative without local administration.

At any time after the expiration of sixty days from the death of a nonresident decedent, any person indebted to the estate of the nonresident decedent or having possession or control of personal property, or of an instrument evidencing a debt, obligation, stock or chose in action belonging to the estate of the nonresident decedent may pay the debt, deliver the personal property, or the instrument evidencing the debt, obligation, stock or chose in action, to the domiciliary foreign personal representative of the nonresident decedent upon being presented with proof of his appointment and an affidavit made by or on behalf of the representative stating:

(1) the date of the death of the nonresident decedent,

(2) that no local administration, or application or petition therefor, is pending in this state,

(3) that the domiciliary foreign personal representative is entitled to payment or delivery.

Source:Laws 1974, LB 354, § 208, UPC § 4-201.

30-2503. Payment or delivery discharges.

Payment or delivery made in good faith on the basis of the proof of authority and affidavit releases the debtor or person having possession of the personal property to the same extent as if payment or delivery had been made to a local personal representative.

Source:Laws 1974, LB 354, § 209, UPC § 4-202.

30-2504. Resident creditor notice.

Payment or delivery under section 30-2503 may not be made if a resident creditor of the nonresident decedent has notified the debtor of the nonresident decedent or the person having possession of the personal property belonging to the nonresident decedent that the debt should not be paid nor the property delivered to the domiciliary foreign personal representative.

Source:Laws 1974, LB 354, § 210, UPC § 4-203.

30-2505. Proof of authority; bond.

If no local administration or application or petition therefor is pending in this state, a domiciliary foreign personal representative may file with a court in this state in a county in which property belonging to the decedent is located, authenticated copies of his appointment and of any official bond he has given.

Source:Laws 1974, LB 354, § 211, UPC § 4-204.

30-2506. Powers.

A domiciliary foreign personal representative who has complied with section 30-2505 may exercise as to assets in this state all powers of a local personal representative and may maintain actions and proceedings in this state subject to any conditions imposed upon nonresident parties generally.

Source:Laws 1974, LB 354, § 212, UPC § 4-205.

30-2507. Power of representatives in transition.

The power of a domiciliary foreign personal representative under section 30-2502 or 30-2506 shall be exercised only if there is no administration or application therefor pending in this state. An application or petition for local administration of the estate terminates the power of the foreign personal representative to act under section 30-2506, but the local court may allow the foreign personal representative to exercise limited powers to preserve the estate. No person who, before receiving actual notice of a pending local administration, has changed his position in reliance upon the powers of a foreign personal representative shall be prejudiced by reason of the application or petition for, or grant of, local administration. The local personal representative is subject to all duties and obligations which have accrued by virtue of the exercise of the powers by the foreign personal representative and may be substituted for him in any action or proceedings in this state.

Source:Laws 1974, LB 354, § 213, UPC § 4-206.

30-2508. Ancillary and other local administrations; provisions governing.

In respect to a nonresident decedent, the provisions of Article 24 of this code govern (1) proceedings, if any, in a court of this state for probate of the will, appointment, removal, supervision, and discharge of the local personal representative, and any other order concerning the estate; and (2) the status, powers, duties and liabilities of any local personal representative and the rights of claimants, purchasers, distributees and others in regard to a local administration.

Source:Laws 1974, LB 354, § 214, UPC § 4-207.

30-2509. Jurisdiction by act of foreign personal representative.

A foreign personal representative submits himself personally to the jurisdiction of the courts of this state in any proceeding relating to the estate by (1) filing authenticated copies of his appointment as provided in section 30-2505, (2) receiving payment of money or taking delivery of personal property under section 30-2502, or (3) doing any act as a personal representative in this state which would have given the state jurisdiction over him as an individual. Jurisdiction under (2) is limited to the money or value of personal property collected.

Source:Laws 1974, LB 354, § 215, UPC § 4-301.

30-2510. Jurisdiction by act of decedent.

In addition to jurisdiction conferred by section 30-2509, a foreign personal representative is subject to the jurisdiction of the courts of this state to the same extent that his decedent was subject to jurisdiction immediately prior to death.

Source:Laws 1974, LB 354, § 216, UPC § 4-302.

30-2511. Service on foreign personal representative.

Service of process may be made upon the foreign personal representative who has submitted himself or herself to the jurisdiction of the court under section 30-2509 or is subject to jurisdiction under section 30-2510 in the manner provided for service of a summons in a civil action.

Source:Laws 1974, LB 354, § 217, UPC § 4-303; Laws 1983, LB 447, § 45.

30-2512. Effect of adjudication for or against personal representative.

An adjudication rendered in any jurisdiction, which has an applicable provision of law similar in reciprocal effect to this provision, in favor of or against any personal representative of the estate is as binding on the local personal representative as if he were a party to the adjudication.

Source:Laws 1974, LB 354, § 218, UPC § 4-401.

30-2601. Definitions and use of terms.

Unless otherwise apparent from the context, in the Nebraska Probate Code:

(1) Incapacitated person means any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent that the person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning himself or herself;

(2) A protective proceeding is a proceeding under the provisions of section 30-2630 to determine that a person cannot effectively manage or apply his or her estate to necessary ends, either because the person lacks the ability or is otherwise inconvenienced, or because the person is a minor, and to secure administration of the person's estate by a conservator or other appropriate relief;

(3) A protected person is a minor or other person for whom a conservator has been appointed or other protective order has been made;

(4) A ward is a person for whom a guardian has been appointed. A minor ward is a minor for whom a guardian has been appointed solely because of minority;

(5) Full guardianship means the guardian has been granted all powers which may be conferred upon a guardian by law;

(6) Guardian means any person appointed to protect a ward and may include the Public Guardian;

(7) Public Guardian is as defined in section 30-4103;

(8) Limited guardianship means any guardianship which is not a full guardianship;

(9) Conservator means any person appointed to protect a protected person and may include the Public Guardian;

(10) For purposes of article 26 of the Nebraska Probate Code, interested person means children, spouses, those persons who would be the heirs if the ward or person alleged to be incapacitated died without leaving a valid will who are adults and any trustee of any trust executed by the ward or person alleged to be incapacitated. After the death of a ward, interested person also includes the personal representative of a deceased ward's estate, the deceased ward's heirs in an intestate estate, and the deceased ward's devisees in a testate estate. The meaning of interested person as it relates to particular persons may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding. If there are no persons identified as interested persons above, then interested person shall also include any person or entity named as a devisee in the most recently executed will of the ward or person alleged to be incapacitated; and

(11) Guardian ad litem means an attorney appointed by the court in a guardianship, conservatorship, or other protective proceeding pursuant to sections 30-4201 to 30-4210 to represent the interests of a person who has been alleged to be incapacitated, ward, person to be protected, or minor.

Source:Laws 1974, LB 354, § 219, UPC § 5-101; Laws 1997, LB 466, § 5; Laws 2011, LB157, § 32; Laws 2013, LB172, § 1; Laws 2014, LB920, § 20; Laws 2016, LB934, § 25.

Cross References

Public Guardianship Act, see section 30-4101.

30-2601.01. Guardians and conservators; training curricula.

The Public Guardian shall approve training curricula for persons appointed as guardians and conservators. Such training curricula shall include, but not be limited to:

(1) The rights of wards under sections 30-2601 to 30-2661 and the Public Guardianship Act specifically and under the laws of the United States generally;

(2) The duties and responsibilities of guardians;

(3) Reporting requirements;

(4) Least restrictive options in the areas of housing, medical care, and psychiatric care; and

(5) Resources to assist guardians in fulfilling their duties.

Source:Laws 1993, LB 782, § 4; Laws 2014, LB920, § 21.

Cross References

Public Guardianship Act, see section 30-4101.

30-2601.02. Legislative intent.

The Legislature recognizes the need for providing mechanisms for intervening in the lives of certain persons who are impaired by reason of disability. It is the intent of the Legislature to authorize the use of guardianships and conservatorships for such intervention. It is also the intent of the Legislature to encourage the least restrictive alternative possible on the impaired person's exercise of personal and civil rights consistent with the impaired person's need for services by encouraging judges to utilize limited guardianships if appropriate.

Source:Laws 1997, LB 466, § 4.

30-2602. Jurisdiction of subject matter; consolidation of proceedings.

(a) The court has jurisdiction over protective proceedings and guardianship proceedings.

(b) When both guardianship and protective proceedings as to the same person are commenced or pending in the same court, the proceedings may be consolidated.

Source:Laws 1974, LB 354, § 220, UPC § 5-102.

30-2602.01. Ex parte orders; authorized; violation; penalty.

During the pendency of any proceeding under sections 30-2601 to 30-2661 after a guardian or conservator is appointed, upon application by any interested person and if the accompanying affidavit of such person or his or her agent shows to the court that the ward's or protected person's safety, health, or financial welfare is at issue, the court may issue ex parte orders to address the situation. Ex parte orders issued under this section shall remain in full force and effect for no more than ten days or until a hearing is held thereon, whichever is earlier. Anyone who violates such order after service shall be guilty of a Class II misdemeanor. Any interested person that submits an affidavit under this section in bad faith, or submits an affidavit under this section that lacks a factual basis as determined by the court, shall be ordered to pay the opposing party reasonable attorney's fees and costs.

Source:Laws 2011, LB157, § 33.

30-2602.02. Guardian or conservator; national criminal history record check; report; waiver by court.

(1) A person, except for a financial institution as that term is defined in section 8-101.03 or its officers, directors, employees, or agents or a trust company, who has been nominated for appointment as a guardian or conservator shall obtain a national criminal history record check through a process approved by the State Court Administrator and a report of the results and file such report with the court at least ten days prior to the appointment hearing date, unless waived or modified by the court (a) for good cause shown by affidavit filed simultaneously with the petition for appointment or (b) in the event the protected person requests an expedited hearing under section 30-2630.01.

(2) An order appointing a guardian or conservator shall not be signed by the judge until such report has been filed with the court and reviewed by the judge. Such report, or the lack thereof, shall be certified either by affidavit or by obtaining a certified copy of the report. No report or national criminal history record check shall be required by the court upon the application of a petitioner for an emergency temporary guardianship or emergency temporary conservatorship. The court may waive the requirements of this section for good cause shown.

Source:Laws 2011, LB157, § 34; Laws 2017, LB140, § 151.

30-2603. Payment or delivery to minor.

Any person under a duty to pay or deliver money or personal property to a minor may perform this duty, in amounts not exceeding forty thousand dollars per annum, by paying or delivering the money or property to:

(1) The minor, if he or she has attained the age of eighteen years or is married;

(2) Any person having the care and custody of the minor with whom the minor resides;

(3) A guardian of the minor; or

(4) A financial institution incident to a deposit in a federally insured savings account in the sole name of the minor and giving notice of the deposit to the minor.

This section does not apply if the person making payment or delivery has actual knowledge that a conservator has been appointed or proceedings for appointment of a conservator of the estate of the minor are pending. The persons, other than the minor or any financial institution under subdivision (4) of this section, receiving money or property for a minor are obligated to apply the money to the support and education of the minor but may not pay themselves except by way of reimbursement for out-of-pocket expenses for goods and services necessary for the minor's support. Any excess sums shall be preserved for future support of the minor, and any balance not so used and any property received for the minor must be turned over to the minor when he or she attains majority. Persons who pay or deliver in accordance with provisions of this section are not responsible for the proper application thereof.

Source:Laws 1974, LB 354, § 221, UPC § 5-103; Laws 1992, LB 1000, § 1; Laws 2006, LB 1115, § 27; Laws 2024, LB1195, § 5.
Effective Date: July 19, 2024

30-2604. Delegation of powers by parent or guardian.

A parent or a guardian of a minor or incapacitated person, by a properly executed power of attorney, may delegate to another person, for a period not exceeding six months, any of his or her powers regarding care, custody, or property of the minor child or ward, except his or her power to consent to marriage or adoption of a minor ward. A parent or guardian of a minor who is at least eighteen years of age and who is not a ward of the state, by a properly executed power of attorney, may delegate to such minor, for a period not exceeding one year, the parent's or guardian's power to consent to such minor's own health care and medical treatment.

Source:Laws 1974, LB 354, § 222, UPC § 5-104; Laws 2010, LB226, § 1.

30-2605. Status of guardian of minor; general.

A person becomes a guardian of a minor by acceptance of a testamentary appointment or upon appointment by the court. The guardianship status continues until terminated, without regard to the location from time to time of the guardian and minor ward.

Source:Laws 1974, LB 354, § 223, UPC § 5-201.

Cross References

Guardian ad litem, appointment, see section 43-272.01.

30-2606. Testamentary appointment of guardian of minor; notice.

The parent of a minor may appoint by will a guardian of an unmarried minor. Subject to the right of the minor under section 30-2607, a testamentary appointment becomes effective upon filing the guardian's acceptance in the court in which the will is probated if, before acceptance, both parents are dead or the surviving parent is adjudged incapacitated. If both parents are dead, an effective appointment by the parent who died later has priority. This state recognizes a testamentary appointment effected by filing the guardian's acceptance under a will probated in another state which is the testator's domicile. Upon acceptance of appointment, written notice of acceptance must be given by the guardian to the minor and to the person having his care, or to his nearest adult relation.

Source:Laws 1974, LB 354, § 224, UPC § 5-202.

30-2607. Objection by minor of fourteen or older to testamentary appointment.

A minor of fourteen or more years may prevent an appointment of his testamentary guardian from becoming effective, or may cause a previously accepted appointment to terminate, by filing with the court in which the will is probated a written objection to the appointment before it is accepted or within thirty days after notice of its acceptance. An objection may be withdrawn. An objection does not preclude appointment by the court in a proper proceeding of the testamentary nominee, or any other suitable person.

Source:Laws 1974, LB 354, § 225, UPC § 5-203.

30-2608. Natural guardians; court appointment of guardian of minor; standby guardian; conditions for appointment; child born out of wedlock; additional considerations; filings.

(a) The father and mother are the natural guardians of their minor children and are duly entitled to their custody and to direct their education, being themselves competent to transact their own business and not otherwise unsuitable. If either dies or is disqualified for acting, or has abandoned his or her family, the guardianship devolves upon the other except as otherwise provided in this section.

(b) In the appointment of a parent as a guardian when the other parent has died and the child was born out of wedlock, the court shall consider the wishes of the deceased parent as expressed in a valid will executed by the deceased parent. If in such valid will the deceased parent designates someone other than the other natural parent as guardian for the minor children, the court shall take into consideration the designation by the deceased parent. In determining whether or not the natural parent should be given priority in awarding custody, the court shall also consider the natural parent's acknowledgment of paternity, payment of child support, and whether the natural parent is a fit, proper, and suitable custodial parent for the child.

(c) The court may appoint a standby guardian for a minor whose parent is chronically ill or near death. The appointment of a guardian under this subsection does not suspend or terminate the parent's parental rights of custody to the minor. The standby guardian's authority would take effect, if the minor is left without a remaining parent, upon (1) the death of the parent, (2) the mental incapacity of the parent, or (3) the physical debilitation and consent of the parent.

(d) The court may appoint a guardian for a minor if all parental rights of custody have been terminated or suspended by prior or current circumstances or prior court order. The juvenile court may appoint a guardian for a child adjudicated to be under subdivision (3)(a) of section 43-247 as provided in section 43-1312.01. A guardian appointed by will as provided in section 30-2606 whose appointment has not been prevented or nullified under section 30-2607 has priority over any guardian who may be appointed by the court, but the court may proceed with an appointment upon a finding that the testamentary guardian has failed to accept the testamentary appointment within thirty days after notice of the guardianship proceeding.

(e) The petition and all other court filings for a guardianship proceeding shall be filed with the clerk of the county court. The party shall state in the petition whether such party requests that the proceeding be heard by the county court or, in cases in which a separate juvenile court already has jurisdiction over the child in need of a guardian under the Nebraska Juvenile Code, such separate juvenile court. Such proceeding is considered a county court proceeding even if heard by a separate juvenile court judge, and an order of the separate juvenile court in such guardianship proceeding has the force and effect of a county court order. The testimony in a guardianship proceeding heard before a separate juvenile court judge shall be preserved as in any other separate juvenile court proceeding.

Source:Laws 1974, LB 354, § 226, UPC § 5-204; Laws 1995, LB 712, § 18; Laws 1998, LB 1041, § 4; Laws 1999, LB 375, § 1; Laws 2014, LB908, § 1; Laws 2018, LB193, § 66.

Cross References

Nebraska Juvenile Code, see section 43-2,129.

Annotations

The priority provision of subsection (d) of this section is intended to address circumstances in which a court-appointed guardian comes into existence before a parental nomination is discovered or accepted, so that the authority of the court-appointed guardian will be terminated in favor of the parental nomination. In re Estate of Jeffrey B., 268 Neb. 761, 688 N.W.2d 135 (2004).

Pursuant to subsection (3) of section 43-285, when a separate juvenile court or county court sitting as a juvenile court awards custody of a minor to the Department of Health and Human Services, the court has authority to award custody to a family the department has designated as suitable guardians without resorting to a proceeding under this section. In re Guardianship of Rebecca B. et al., 260 Neb. 922, 621 N.W.2d 289 (2000).

Trial court's ruling that parental rights had been suspended because of the then current circumstances was not erroneous. In re Guardianship of Zyla, 251 Neb. 163, 555 N.W.2d 768 (1996).

In a parent's habeas corpus proceeding directed at child custody, a court may not deprive a parent of a minor's custody unless it is affirmatively shown that the parent seeking habeas corpus relief is unfit to perform the parental duties imposed by the parent-child relationship or has legally lost parental rights in the child. Uhing v. Uhing, 241 Neb. 368, 488 N.W.2d 366 (1992).

A party seeking to establish guardianship must file a petition in county court. In re Interest of Brianna B., 21 Neb. App. 657, 842 N.W.2d 191 (2014).

Appeals of matters arising under the Nebraska Probate Code are reviewed for error on the record. In re Guardianship of Elizabeth H., 17 Neb. App. 752, 771 N.W.2d 185 (2009).

The "fitness" standard applied in a guardianship appointment pursuant to this section is analogous to a juvenile court's finding that it would be contrary to a juvenile's welfare to return home. In re Guardianship of Elizabeth H., 17 Neb. App. 752, 771 N.W.2d 185 (2009); In re Guardianship of Brenda B. et al., 13 Neb. App. 618, 698 N.W.2d 228 (2005).

The parental preference principle applies to proceedings to initially determine whether to appoint a guardian over a parent's objection. In re Guardianship of Elizabeth H., 17 Neb. App. 752, 771 N.W.2d 185 (2009).

Under subsection (d) of this section, the determination of who shall be guardian and conservator is ultimately dependent upon the best interests of the children, although a testamentary nomination of a guardian or conservator may have statutory priority. In re Guardianship & Conservatorship of McDowell, 17 Neb. App. 340, 762 N.W.2d 615 (2009).

Pursuant to subsection (e) of this section and section 43-247(10), guardianship was properly docketed in the county court and heard by a separate juvenile court judge. In re Guardianship of Brenda B. et al., 13 Neb. App. 618, 698 N.W.2d 228 (2005).

30-2609. Court appointment of guardian of minor; venue.

The venue for guardianship proceedings for a minor is in the place where the minor resides or is present or where property is located if he is a nonresident of this state.

Source:Laws 1974, LB 354, § 227, UPC § 5-205.

30-2610. Court appointment of guardian of minor; qualification; priority of minor's nominee.

The court may appoint as guardian any person whose appointment would be in the best interests of the minor. The court shall appoint a person nominated by the minor, if the minor is fourteen years of age or older, unless the court finds the appointment contrary to the best interests of the minor.

Source:Laws 1974, LB 354, § 228, UPC § 5-206.

30-2611. Court appointment of guardian of minor; procedure.

(a) Notice of the time and place of hearing of a petition for the appointment of a guardian of a minor is to be given by the petitioner in the manner prescribed by section 30-2220 to:

(1) the minor, if he is fourteen or more years of age;

(2) the person who has had the principal care and custody of the minor during the sixty days preceding the date of the petition; and

(3) any living parent of the minor.

(b) Upon hearing, if the court finds that a qualified person seeks appointment, venue is proper, the required notices have been given, the requirements of section 30-2608 have been met, and the welfare and best interests of the minor will be served by the requested appointment, it shall make the appointment. In other cases the court may dismiss the proceedings, or make any other disposition of the matter that will best serve the interest of the minor.

(c) If necessary, the court may appoint a temporary guardian, with the status of an ordinary guardian of a minor, but the authority of a temporary guardian shall not last longer than six months. In an emergency, the court may appoint a temporary guardian of a minor without notice, pending notice and hearing.

(d) If, at any time in the proceeding, the court determines that the interests of the minor are or may be inadequately represented, it may appoint an attorney to represent the minor, giving consideration to the preference of the minor if the minor is fourteen years of age or older.

Source:Laws 1974, LB 354, § 229, UPC § 5-207; Laws 1978, LB 650, § 20.

30-2612. Consent to service by acceptance of appointment; notice.

By accepting a testamentary or court appointment as guardian, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be instituted by any interested person. Notice of any proceeding shall be delivered to the guardian, or mailed to him by ordinary mail at his address as listed in the court records and to his address as then known to the petitioner. Letters of guardianship must indicate whether the guardian was appointed by will or by court order.

Source:Laws 1974, LB 354, § 230, UPC § 5-208.

30-2613. Powers and duties of guardian of minor.

(1) A guardian of a minor has the powers and responsibilities of a parent who has not been deprived of custody of his or her minor and unemancipated child, except that a guardian is not legally obligated to provide from his or her own funds for the ward and is not liable to third persons by reason of the parental relationship for acts of the ward. In particular, and without qualifying the foregoing, a guardian has the following powers and duties:

(a) He or she must take reasonable care of his or her ward's personal effects and commence protective proceedings if necessary to protect other property of the ward.

(b) He or she may receive money payable for the support of the ward to the ward's parent, guardian or custodian under the terms of any statutory benefit or insurance system, or any private contract, devise, trust, conservatorship or custodianship. He or she also may receive money or property of the ward paid or delivered by virtue of section 30-2603. Any sums so received shall be applied to the ward's current needs for support, care and education, except as provided in subsections (2) and (3) of this section. He or she must exercise due care to conserve any excess for the ward's future needs unless a conservator has been appointed for the estate of the ward, in which case such excess shall be paid over at least annually to the conservator. Sums so received by the guardian are not to be used for compensation for his or her services except as approved by order of court. A guardian may institute proceedings to compel the performance by any person of a duty to support the ward or to pay sums for the welfare of the ward.

(c) The guardian is empowered to facilitate the ward's education, social, or other activities and to authorize medical or other professional care, treatment, or advice. A guardian is not liable by reason of this consent for injury to the ward resulting from the negligence or acts of third persons unless it would have been illegal for a parent to have consented. A guardian may consent to the marriage or adoption of his or her ward.

(d) A guardian must report the condition of his or her ward and of the ward's estate which has been subject to his or her possession or control, as ordered by court on petition of any person interested in the minor's welfare or as required by court rule, and upon termination of the guardianship settle his or her accounts with the ward or his or her legal representatives and pay over and deliver all of the estate and effects remaining in his or her hands or due from him or her on settlement to the person or persons who shall be lawfully entitled thereto.

(2) The appointment of a guardian for a minor shall not relieve his or her parent or parents, liable for the support of such minor, from their obligation to provide for such minor. For the purposes of guardianship of minors, the application of guardianship income and principal after payment of debts and charges of managing the estate, in relationship to the respective obligations owed by fathers, mothers, and others, for the support, maintenance and education of the minor shall be:

(a) The income and property of the father and mother of the minor in such manner as they can reasonably afford, regard being had to the situation of the family and to all the circumstances of the case;

(b) The guardianship income, in whole or in part, as shall be judged reasonable considering the extent of the guardianship income and the parents' financial ability;

(c) The income and property of any other person having a legal obligation to support the minor, in such manner as the person can reasonably afford, regard being had to the situation of the person's family and to all the circumstances of the case; and

(d) The guardianship principal, either personal or real estate, in whole or in part, as shall be judged for the best interest of the minor, considering all the circumstances of the minor and those liable for his or her support.

(3) Notwithstanding the provisions of subsection (2) of this section, the court may from time to time authorize the guardian to use so much of the guardianship income or principal, whether personal or real estate, as it may deem proper, considering all the circumstances of the minor and those liable for his or her support, if it is shown that (a) an emergency exists which justifies an expenditure, or (b) a fund has been given to the minor for a special purpose and the court can, with reasonable certainty, ascertain such purpose.

(4) The court may require a guardian to furnish a bond in an amount and conditioned in accordance with the provisions of section 30-2640.

(5) A guardian shall not change a ward's place of abode to a location outside of the State of Nebraska without court permission.

Source:Laws 1974, LB 354, § 231, UPC § 5-209; Laws 2011, LB157, § 35.

Annotations

In deciding whether to assess all or any part of a successful petitioner's costs and fees against a minor ward's estate, a court should consider the usual factors for determining reasonable attorney fees, as set out in In re Guardianship & Conservatorship of Donley, 262 Neb. 282, 631 N.W.2d 839 (2001). In addition, under subdivision (1)(b) of this section, the court must consider whether an assessment of costs against the ward's estate would be detrimental to his or her long term interests. In re Guardianship of Brydon P., 286 Neb. 661, 838 N.W.2d 262 (2013).

When a court determines that a petitioner seeks a guardianship appointment for a minor in good faith and that the guardianship is in the minor's best interests, subdivision (1)(b) of this section authorizes the court to assess a successful petitioner's reasonable costs, including attorney fees, against the minor's estate, if an estate exists. A court may also assess the minor's attorney fees and guardian ad litem fees against his or her estate when the court has determined that these appointments are necessary to ensure that the minor's interests are adequately represented. But this section does not authorize a court to assess a successful petitioner's costs against another party. In re Guardianship of Brydon P., 286 Neb. 661, 838 N.W.2d 262 (2013).

30-2614. Termination of appointment of guardian; general.

A guardian's authority and responsibility terminates upon the death, resignation or removal of the guardian or upon the minor's death, adoption, marriage or attainment of majority, but termination does not affect his liability for prior acts, nor his obligation to account for funds and assets of his ward. Resignation of a guardian does not terminate the guardianship until it has been approved by the court. A testamentary appointment under an informally probated will terminates if the will is later denied probate in a formal proceeding.

Source:Laws 1974, LB 354, § 232, UPC § 5-210.

30-2615. Proceedings subsequent to appointment; venue.

(a) The court where the ward resides has concurrent jurisdiction with the court which appointed the guardian, or in which acceptance of a testamentary appointment was filed, over resignation, removal, accounting and other proceedings relating to the guardianship.

(b) If the court located where the ward resides is not the court in which acceptance of appointment is filed, the court in which proceedings subsequent to appointment are commenced shall in all appropriate cases notify the other court, in this or another state, and after consultation with that court determine whether to retain jurisdiction or transfer the proceedings to the other court, whichever is in the best interest of the ward. A copy of any order accepting a resignation or removing a guardian shall be sent to the court in which acceptance of appointment is filed.

Source:Laws 1974, LB 354, § 233, UPC § 5-211.

30-2616. Resignation or removal proceedings.

(a) Any person interested in the welfare of a ward, or the ward, if fourteen or more years of age, may petition for removal of a guardian on the ground that removal would be in the best interest of the ward. A guardian may petition for permission to resign. A petition for removal or for permission to resign may, but need not, include a request for appointment of a successor guardian.

(b) After notice and hearing on a petition for removal or for permission to resign, the court may terminate the guardianship and make any further order that may be appropriate.

(c) If, at any time in the proceeding, the court determines that the interests of the ward are, or may be, inadequately represented, it may appoint an attorney to represent the minor, giving consideration to the preference of the minor if the minor is fourteen or more years of age.

Source:Laws 1974, LB 354, § 234, UPC § 5-212.

Annotations

A biological mother's failure to accept responsibility for her past misconduct indicated present unfitness. In re Guardianship of K.R., 304 Neb. 1, 932 N.W.2d 737 (2019).

An attorney appointed under subsection (c) of this section is an advocate for the minor child and is not a guardian ad litem. In re Guardianship of Robert D., 269 Neb. 820, 696 N.W.2d 461 (2005).

Whether to appoint an attorney to represent a minor child pursuant to subsection (c) of this section is a matter entrusted to the discretion of the trial court. In re Guardianship of Robert D., 269 Neb. 820, 696 N.W.2d 461 (2005).

This section does not distinguish between guardians appointed by will or by the court; consequently, whether appointed by will or by the court, the standard for removal of the guardian of a minor pursuant to this section is the same: the best interests of the ward. In re Estate of Jeffrey B., 268 Neb. 761, 688 N.W.2d 135 (2004).

In guardianship termination proceedings involving a biological or adoptive parent, the parental preference principle serves to establish a rebuttable presumption that the best interests of a child are served by reuniting the child with his or her parent. In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 238 (2004).

Where the rights of a biological or adoptive parent are not at issue, the standard for removal of a guardian of a minor under this section is the best interests of the ward, and the burden of proof is on the moving party to establish that terminating the guardianship is in the best interests of the ward. In re Guardianship of Issaabela R., 27 Neb. App. 353, 932 N.W.2d 749 (2019).

This section governs resignation or removal proceedings in cases involving guardians of minors. In re Guardianship of Aimee S., 26 Neb. App. 380, 920 N.W.2d 18 (2018).

This section provides that a person may petition for removal of a guardian on the ground that removal would be in the best interests of the ward. In re Guardianship of Aimee S., 26 Neb. App. 380, 920 N.W.2d 18 (2018).

This section relates to the removal of a guardian when the protected person is a juvenile. In re Guardianship of Aimee S., 26 Neb. App. 380, 920 N.W.2d 18 (2018).

30-2617. Testamentary appointment of guardian for incapacitated person.

(a) The parent of an incapacitated person may by will appoint a guardian of the incapacitated person. A testamentary appointment by a parent becomes effective when, after having given seven days' prior written notice of his intention to do so to the incapacitated person and to the person having his care or to his nearest adult relative, the guardian files acceptance of appointment in the court in which the will is informally or formally probated if, prior thereto, both parents are dead or the surviving parent is adjudged incapacitated. If both parents are dead, an effective appointment by the parent who died later has priority unless it is terminated by the denial of probate in formal proceedings.

(b) The spouse of a married incapacitated person may by will appoint a guardian of the incapacitated person. The appointment becomes effective when, after having given seven days' prior written notice of his intention to do so to the incapacitated person and to the person having his care or to his nearest adult relative, the guardian files acceptance of appointment in the court in which the will is informally or formally probated. An effective appointment by a spouse has priority over an appointment by a parent unless it is terminated by the denial of probate in formal proceedings.

(c) This state shall recognize a testamentary appointment effected by filing acceptance under a will probated at the testator's domicile in another state.

(d) On the filing with the court in which the will was probated of written objection to the appointment by the person for whom a testamentary appointment of guardian has been made, the appointment is terminated. An objection does not prevent appointment by the court in a proper proceeding of the testamentary nominee or any other suitable person upon an adjudication of incapacity in proceedings under the succeeding sections of this part.

Source:Laws 1974, LB 354, § 235, UPC § 5-301.

Cross References

Vulnerable adult, appointment of guardian ad litem, see section 28-387.

30-2618. Venue.

Unless otherwise provided in the Nebraska Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, the venue for guardianship proceedings for an incapacitated person is in the place where the incapacitated person resides or is present, or where property is located if he or she is a nonresident. If the incapacitated person is admitted to an institution pursuant to order of a court of competent jurisdiction, venue is also in the county in which that court sits.

Source:Laws 1974, LB 354, § 236, UPC § 5-302; Laws 2011, LB157, § 36.

Cross References

Nebraska Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, see section 30-3901.

30-2619. Procedure for court appointment of a guardian or standby guardian of a person alleged to be incapacitated.

(a) The person alleged to be incapacitated or any person interested in his or her welfare may petition for a finding of incapacity and appointment of a guardian or a standby guardian. The petition shall be verified and shall contain specific allegations with regard to each of the areas as provided under section 30-2619.01 in which the petitioner claims that the person alleged to be incapacitated lacks sufficient understanding to make or communicate responsible decisions concerning his or her own person. An interested person may file a motion to make more definite and certain requesting a specific description of the functional limitations and physical and mental condition of the person alleged to be incapacitated with the specific reasons prompting the request for guardianship.

(b) Upon the filing of a petition, the court shall set a date for hearing on the issues of incapacity and unless the person alleged to be incapacitated has retained counsel of his or her own choice or has otherwise indicated a desire for an attorney of his or her own choice, the court may appoint an attorney to represent him or her in the proceeding. The court may appoint a guardian ad litem as provided in sections 30-4201 to 30-4210 to advocate for the best interests of the person alleged to be incapacitated.

(c) The person alleged to be incapacitated may be examined by a physician appointed by the court. The physician shall submit his or her report in writing to the court and may be interviewed by a visitor, if so appointed pursuant to sections 30-2619.01 and 30-2624, sent by the court.

(d) The person alleged to be incapacitated is entitled to be present at the hearing in person and to see and hear all evidence bearing upon his or her condition. He or she is entitled to be present by counsel, to compel the attendance of witnesses, to present evidence, to cross-examine witnesses, including the court-appointed physician and the visitor appointed by the court pursuant to sections 30-2619.01 and 30-2624, and to appeal any final orders or judgments. The issue may be determined at a closed hearing only if the person alleged to be incapacitated or his or her counsel so requests.

(e) At any hearing conducted under this section, the court may designate one or more standby guardians of the person whose appointment will become effective immediately upon the death, unwillingness or inability to act, resignation, or removal by the court of the initially appointed guardian and upon compliance with any rules promulgated by the Supreme Court. The standby guardian shall have the same powers and duties as the initially appointed guardian. The standby guardian shall receive a copy of the order establishing or modifying the initial guardianship and the order designating the standby guardian. Upon assuming office, the standby guardian shall so notify the court in writing. Upon notification and upon compliance with any rules promulgated by the Supreme Court, the court shall issue new letters of guardianship that specify that the standby guardianship appointment is permanent. A standby guardian shall complete the training required by section 30-2601.01 at the time or times required by rules promulgated by the Supreme Court or as otherwise provided by order of the county court.

(f) The Public Guardian shall not be appointed as a standby guardian.

Source:Laws 1974, LB 354, § 237, UPC § 5-303; Laws 1978, LB 650, § 21; Laws 1982, LB 428, § 1; Laws 1993, LB 782, § 5; Laws 1997, LB 466, § 6; Laws 2015, LB43, § 2; Laws 2016, LB934, § 26.

Annotations

In a guardianship proceeding, where an objector has no concerns for the ward's welfare but only concerns of its own potential financial expectancy, such concerns do not give the objector standing to challenge a guardianship as "any person interested in [the ward's] welfare" under this section. In re Guardianship & Conservatorship of Barnhart, 290 Neb. 314, 859 N.W.2d 856 (2015).

An evidentiary hearing should be held expediently on a guardianship or conservatorship petition, and temporary guardians and conservators are intended to exercise their powers in a limited manner and for a limited period of time. In re Guardianship & Conservatorship of Larson, 270 Neb. 837, 708 N.W.2d 262 (2006).

Proceedings initiated to appoint a guardian are special proceedings. In re Guardianship & Conservatorship of Larson, 270 Neb. 837, 708 N.W.2d 262 (2006).

The rule that a true evidentiary hearing is required to support a finding of incompetency cannot be circumvented by continuous extensions of a temporary guardianship, nor are numerous reports by a guardian ad litem a substitute for an evidentiary hearing. In re Guardianship & Conservatorship of Larson, 270 Neb. 837, 708 N.W.2d 262 (2006).

Subsection (a) of this section is neither unconstitutionally vague nor overbroad. In re Guardianship and Conservatorship of Sim, 225 Neb. 181, 403 N.W.2d 721 (1987).

30-2619.01. Visitor appointment; conduct evaluation; duties.

Following the filing of a petition, the court may appoint a visitor and direct such visitor to conduct an evaluation of the allegations of incapacity as provided under this section. To conduct the evaluation of the allegations of incapacity, the visitor shall interview the allegedly incapacitated person, the person seeking appointment as guardian, the agencies providing services to the allegedly incapacitated person, and other persons and agencies that may provide relevant information. The visitor shall also visit the present place of abode of the person alleged to be incapacitated and, if any change of residence is anticipated, the place it is proposed that he or she will be detained or reside if the requested appointment is made, and submit his or her report in writing to the court.

As part of the evaluation of allegations of incapacity, a visitor, if appointed, shall obtain evidence relating to the allegedly incapacitated person's ability to make, communicate, or carry out responsible decisions concerning his or her person with regard to:

(1) Selecting his or her place of abode within or without this state;

(2) Arranging for his or her medical care;

(3) Protecting his or her personal effects;

(4) Giving necessary consents, approvals, or releases;

(5) Arranging for training, education, or other habilitating services appropriate to him or her;

(6) Applying for private or governmental benefits to which he or she may be entitled;

(7) Instituting proceedings to compel any person liable for the support of the proposed ward to support him or her if no conservator has been appointed for the proposed ward;

(8) Entering into contractual agreements if no conservator has been appointed for the proposed ward;

(9) Receiving money and tangible property deliverable to him or her and applying such money and property to his or her expenses for room and board, medical care, personal effects, training, education, and habilitative services; and

(10) Any other area of inquiry which the court may direct.

Source:Laws 1982, LB 428, § 2.

Cross References

For fees and costs of visitor, see sections 30-2620.01 and 30-2643.

For qualifications of visitor, see section 30-2624.

Annotations

Section is neither vague nor overbroad. In re Guardianship and Conservatorship of Sim, 225 Neb. 181, 403 N.W.2d 721 (1987).

30-2619.02. Visitor's evaluation; how conducted.

The guardianship evaluation by the visitor shall be conducted with minimum interference with the allegedly incapacitated person's activities. Any interviews and examinations shall take place in the usual residence unless the visitor deems it necessary to conduct the interview or examination elsewhere. In cases of such necessity, the interview or examination shall take place during normal business hours.

Source:Laws 1982, LB 428, § 3.

30-2619.03. Visitor's evaluation report; contents.

The visitor shall file an evaluation report based upon the evaluation of the allegations of incapacity with the court within sixty days of the filing of the guardianship petition. Copies of the evaluation report shall be made available to the guardian ad litem, the proposed ward, and the petitioner. The evaluation report shall contain:

(1) A record of the visitor's interviews;

(2) Evidence obtained in each of the categories listed in section 30-2619.01;

(3) Recommendations as to the need of the proposed ward for a guardian in each of the areas listed in section 30-2619.01;

(4) The visitor's opinion as to the appropriateness of the person seeking appointment as guardian;

(5) Recommendations as to other appropriate candidates; and

(6) The visitor's opinion as to the needed duration of the guardianship.

Source:Laws 1982, LB 428, § 4.

30-2619.04. Visitor's evaluation report; responses.

The petitioner and the proposed ward shall have ten judicial days to file responses to the visitor's evaluation report.

Source:Laws 1982, LB 428, § 5.

30-2620. Findings; appointment of guardian; authority and responsibility of guardian.

(a) The court may appoint a guardian if it is satisfied by clear and convincing evidence that the person for whom a guardian is sought is incapacitated and that the appointment is necessary or desirable as the least restrictive alternative available for providing continuing care or supervision of the person of the person alleged to be incapacitated. If the court finds that a guardianship should be created, the guardianship shall be a limited guardianship unless the court finds by clear and convincing evidence that a full guardianship is necessary. If a limited guardianship is created, the court shall, at the time of appointment or later, specify the authorities and responsibilities which the guardian and ward, acting together or singly, shall have with regard to:

(1) Selecting the ward's place of abode within this state or, with court permission, outside of this state;

(2) Arranging for medical care for the ward;

(3) Protecting the personal effects of the ward;

(4) Giving necessary consent, approval, or releases on behalf of the ward;

(5) Arranging for training, education, or other habilitating services appropriate for the ward;

(6) Applying for private or governmental benefits to which the ward may be entitled;

(7) Instituting proceedings to compel any person under a duty to support the ward or to pay sums for the welfare of the ward to perform such duty, if no conservator has been appointed;

(8) Entering into contractual arrangements on behalf of the ward, if no conservator has been appointed; and

(9) Receiving money and tangible property deliverable to the ward and applying such money and property to the ward's expenses for room and board, medical care, personal effects, training, education, and habilitating services, if no conservator has been appointed, or requesting the conservator to expend the ward's estate by payment to third persons to meet such expenses.

(b) In a limited guardianship, the powers shall be endorsed upon the letters of appointment of the guardian and shall be treated as specific limitations upon the general powers, rights, and duties accorded by law to the guardian. In a full guardianship, the letters of appointment shall specify that the guardian is granted all powers conferred upon guardians by law. After appointment, the ward may retain an attorney for the sole purpose of challenging the guardianship, the terms of the guardianship, or the actions of the guardian on behalf of the ward.

(c) A guardian shall not change a ward's place of abode to a location outside of the State of Nebraska without court permission.

Source:Laws 1974, LB 354, § 238, UPC § 5-304; Laws 1982, LB 428, § 6; Laws 1993, LB 782, § 6; Laws 1997, LB 466, § 7; Laws 2011, LB157, § 37.

Annotations

Only after a written acceptance is filed and the guardian submits to the personal jurisdiction of the court will letters of guardianship be issued by the court. As such, one appointed who does not wish to serve as a guardian may simply refuse to accept the appointment. In re Guardianship of Nicholas H., 309 Neb. 1, 958 N.W.2d 661 (2021).

Pursuant to this section, a full guardianship may be established if the probate court finds by clear and convincing evidence that a full guardianship is necessary for the care of the incapacitated person. In re Guardianship & Conservatorship of Karin P., 271 Neb. 917, 716 N.W.2d 681 (2006).

A guardian for an incapacitated person appointed pursuant to this section is not entitled to quasi-judicial immunity with respect to the function of selecting the ward's place of abode by the guardian. Frey v. Blanket Corp., 255 Neb. 100, 582 N.W.2d 336 (1998).

A court may appoint a guardian when clear and convincing evidence establishes (1) that the person for whom a guardian is sought is incapacitated and (2) that the appointment is necessary or desirable as the least restrictive alternative available for providing continuing care or supervision of the person alleged to be incapacitated. In re Guardianship & Conservatorship of Hartwig, 11 Neb. App. 526, 656 N.W.2d 268 (2003).

30-2620.01. Attorney, guardian ad litem, physician, and visitor; fees and costs; in forma pauperis proceedings; frivolous actions.

The reasonable fees and costs of an attorney, a guardian ad litem, a physician, and a visitor appointed by the court for the person alleged to be incapacitated shall be allowed, disallowed, or adjusted by the court and may be paid from the estate of the ward if the ward possesses an estate or, if not, shall be paid by the county in which the proceedings are brought or by the petitioner as costs of the action. An action under sections 30-2601 to 30-2661 may be initiated or defended in forma pauperis in accordance with sections 25-2301 to 25-2310. The court may assess attorney's fees and costs against the petitioner upon a showing that the action was frivolous in accordance with sections 25-824 to 25-824.03.

Source:Laws 1982, LB 428, § 7; Laws 1993, LB 782, § 7; Laws 1999, LB 689, § 14.

Annotations

In a guardianship proceeding for a minor, no statute or recognized uniform course of procedure permits a court to assess the fees of an appointed person against a ward's estate, a county, or a petitioner. In re Guardianship & Conservatorship of J.F., 307 Neb. 452, 949 N.W.2d 496 (2020).

30-2621. Acceptance of appointment; consent to jurisdiction.

By accepting appointment, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be instituted by any interested person. Notice of any proceeding shall be delivered to the guardian or mailed to him by ordinary mail at his address as listed in the court records and to his address as then known to the petitioner.

Source:Laws 1974, LB 354, § 239, UPC § 5-305.

30-2622. Termination of guardianship for incapacitated person; liability for prior acts; obligation to account.

The authority and responsibility of a guardian for an incapacitated person terminates upon the death of the guardian or ward, the determination of incapacity of the guardian, or upon removal or resignation as provided in section 30-2623. Testamentary appointment under an informally probated will terminates if the will is later denied probate in a formal proceeding. Termination does not affect his liability for prior acts nor his obligation to account for funds and assets of his ward.

Source:Laws 1974, LB 354, § 240, UPC § 5-306; Laws 1975, LB 481, § 19.

30-2623. Removal or resignation of guardian; termination of incapacity.

(a) On petition of the ward or any person interested in his welfare, the court may remove a guardian and appoint a successor if in the best interests of the ward. On petition of the guardian, the court may accept his resignation and make any other order which may be appropriate.

(b) An order adjudicating incapacity may specify a minimum period, not exceeding one year, during which no petition for an adjudication that the ward is no longer incapacitated may be filed without special leave. Subject to this restriction, the ward or any person interested in his welfare may petition for an order that he is no longer incapacitated, and for removal or resignation of the guardian. A request for this order may be made by informal letter to the court or judge and any person who knowingly interferes with transmission of this kind of request to the court or judge may be adjudged guilty of contempt of court.

(c) Before removing a guardian, accepting the resignation of a guardian, or ordering that a ward's incapacity has terminated, the court, following the same procedures to safeguard the rights of the ward as apply to a petition for appointment of a guardian, may send a visitor to the residence of the present guardian and to the place where the ward resides or is detained, to observe conditions and report in writing to the court.

Source:Laws 1974, LB 354, § 241, UPC § 5-307.

Annotations

By using the phrase "any person interested in his welfare," the Legislature intended to allow persons who are interested in a protected person, but who do not satisfy the definition of "interested person," to bring matters affecting the welfare of protected persons to the attention of the local probate court. In re Guardianship of Gilmore, 11 Neb. App. 876, 662 N.W.2d 221 (2003).

30-2624. Visitor; qualifications.

A visitor shall be trained in law, nursing, social work, mental health, gerontology, or developmental disabilities and shall be an officer, employee, or special appointee of the court with no personal interest in the proceedings.

Any qualified person may be appointed visitor of a proposed ward, except that it shall be unlawful for any owner, part owner, manager, administrator, or employee, or any spouse of an owner, part owner, manager, administrator, or employee of a nursing home, room and board home, convalescent home, group care home, or institution providing residential care to any person with a physical disability, with an intellectual disability, with an infirmity, or who is aged to be appointed visitor of any such person residing, being under care, receiving treatment, or being housed in any such home or institution within the State of Nebraska.

The court shall select the visitor who has the expertise to most appropriately evaluate the needs of the person who is allegedly incapacitated.

The court shall maintain a current list of persons trained in or having demonstrated expertise in the areas of mental health, intellectual disability, drug abuse, alcoholism, gerontology, nursing, and social work, for the purpose of appointing a suitable visitor.

Source:Laws 1974, LB 354, § 242, UPC § 5-308; Laws 1982, LB 428, § 8; Laws 2013, LB23, § 5.

30-2625. Notices in guardianship proceedings.

(a) In a proceeding for the appointment of a guardian for a person alleged to be incapacitated or the removal of a guardian of a ward other than the appointment of a temporary guardian or temporary suspension of a guardian, notice of hearing shall be given to each of the following:

(1) The ward or the person alleged to be incapacitated and his or her spouse, parents, and adult children;

(2) Any person who is serving as guardian or conservator of the ward or who has care and custody of a person alleged to be incapacitated; and

(3) If no other person is notified under subdivision (1) of this subsection, at least one of the closest adult relatives of the ward or person alleged to be incapacitated, if any can be found.

(b) Notice which is appropriate to the circumstances of the ward or person alleged to be incapacitated shall be served personally at least fourteen days prior to the hearing on the ward or person alleged to be incapacitated and his or her spouse and parents if they can be found within the state. The court may require the petitioner to serve notice in alternative formats or with appropriate auxiliary aids and services if necessary to ensure equally effective communication with the ward or person alleged to be incapacitated, including, but not limited to, the use of braille, sign language, large print, reading aloud, or other reasonable accommodation for the known disabilities of the individual based on the allegations specified in the petition. Waiver of notice by the person alleged to be incapacitated shall not be effective unless he or she attends the hearing and the court determines that the waiver is appropriate.

(c) In addition to notifying him or her of the filing of the petition and the time and place of the hearing on the petition, the notice required to be served upon the person alleged to be incapacitated shall list the following rights of the person:

(1) The right to request the appointment of an attorney;

(2) The right to present evidence in his or her own behalf;

(3) The right to request that the power of the guardian, if appointed, be limited by the court;

(4) The right to be notified regarding how to contact the temporary guardian if a temporary guardian is appointed;

(5) The right to compel attendance of witnesses;

(6) The right to cross-examine witnesses, including the court-appointed physician;

(7) The right to appeal any final order; and

(8) The right to request a hearing closed to the public.

(d) If a temporary guardian has been appointed, the notice required in subsection (c) of this section shall include a notice of such appointment and of the right to request an expedited hearing pursuant to section 30-2626.

Source:Laws 1974, LB 354, § 243, UPC § 5-309; Laws 1978, LB 650, § 38; Laws 1982, LB 428, § 9; Laws 1993, LB 782, § 8; Laws 1997, LB 466, § 8.

30-2626. Temporary guardians; limited temporary guardians; power of court.

(a)(1) If a person alleged to be incapacitated has no guardian and an emergency exists, the court may, pending notice and hearing, exercise the power of a guardian or enter an ex parte order appointing a temporary guardian to address the emergency. The order and letters of temporary guardianship shall specify the powers and duties of the temporary guardian, limiting the powers and duties to those necessary to address the emergency.

(2)(i) For purposes of this subdivision (a)(2):

(A) Benefits means private or government benefits to which a person alleged to be incapacitated may be entitled; and

(B) Covered county means a county containing a city of the metropolitan class or a city of the primary class.

(ii) Subject to subsection (k) of this section, if a person alleged to be incapacitated has no guardian and an emergency exists, the court in a covered county may, pending notice and hearing, enter an ex parte order appointing a temporary guardian for the limited purpose of assisting the person in applying for, validating, and facilitating eligibility for benefits.

(iii) The limited temporary guardian may access personal and financial records of such person as necessary to apply for, validate, and facilitate eligibility for benefits. The order and letters of limited temporary guardianship shall limit the powers and duties to those necessary to carry out this subdivision (a)(2).

(iv) Third parties, including, but not limited to, financial institutions, in possession of such person's financial and personal records related to eligibility for benefits shall provide the limited temporary guardian access to such records. Records to which a limited temporary guardian may be entitled include, but are not limited to, records relating to: Checking, savings, or other bank accounts; household expenses; health, life, or other insurance; wages; pensions; annuities; real property; trusts; burial plans; retirement accounts; stocks and bonds; farm and business equipment; motor vehicles, boats, and motor homes; immigration status; land contracts; promissory notes and loans; social security benefits; credit cards; taxes; or any other asset.

(b) When the court takes action to exercise the powers of a guardian or to appoint a temporary guardian under subsection (a) of this section, an expedited hearing shall be held if requested by the person alleged to be incapacitated, or by any interested person, if the request is filed more than ten business days prior to the date set for the hearing on the petition for appointment of the guardian. If an expedited hearing is to be held, the hearing shall be held within ten business days after the request is received. At the hearing on the temporary appointment, the petitioner shall have the burden of showing by a preponderance of the evidence that temporary guardianship continues to be necessary to address the emergency situation. Unless the person alleged to be incapacitated has counsel of his or her own choice, the court may appoint an attorney to represent the person alleged to be incapacitated at the hearing as provided in section 30-2619.

(c) If an expedited hearing is requested, notice shall be served as provided in section 30-2625. The notice shall specify that a temporary guardian has been appointed and shall be given at least twenty-four hours prior to the expedited hearing.

(d) At the expedited hearing, the court may render a judgment authorizing the temporary guardianship to continue beyond the original ten-day period. The judgment shall prescribe the specific powers and duties of the temporary guardian in the letters of temporary guardianship and shall be effective for a single ninety-day period. For good cause shown, the court may extend the temporary guardianship for successive ninety-day periods.

(e)(1) The temporary guardianship shall terminate at the end of the ninety-day period in which the temporary guardianship is valid or at any time prior thereto if the court deems the circumstances leading to the order for temporary guardianship no longer exist or if an order has been entered as a result of a hearing pursuant to section 30-2619 which has been held during the ninety-day period.

(2) When the duties of a limited temporary guardian appointed pursuant to subdivision (a)(2) of this section have not been completed within ninety days, the court shall accept notification by such guardian as good cause for extending the limited temporary guardianship for an additional ninety days.

(f) If the court denies the request for the ex parte order, the court may, in its discretion, enter an order for an expedited hearing pursuant to subsections (b) through (e) of this section.

(g) If the petitioner requests the entry of an order of temporary guardianship pursuant to subsection (a) of this section without requesting an ex parte order, the court may hold an expedited hearing pursuant to subsections (b) through (e) of this section.

(h) If an appointed guardian is not effectively performing his or her duties and the court further finds that the welfare of the incapacitated person requires immediate action, it may, pending notice and hearing in accordance with section 30-2220, appoint a temporary guardian for the incapacitated person for a specified period not to exceed ninety days. For good cause shown, the court may extend the temporary guardianship for successive ninety-day periods. A temporary guardian appointed pursuant to this subsection has only the powers and duties specified in the previously appointed guardian's letters of guardianship, and the authority of any permanent guardian previously appointed by the court is suspended so long as a temporary guardian has authority.

(i) A temporary guardian may be removed at any time. A temporary guardian shall make any report the court requires, except that a temporary guardian shall not be required to provide the check or report under section 30-2602.02. In other respects the provisions of the Nebraska Probate Code concerning guardians apply to temporary guardians.

(j) The court may appoint the Public Guardian as the temporary guardian pursuant to the Public Guardianship Act.

(k)(1) If the Public Guardian is unable to accept appointment as a limited temporary guardian for the purposes described in subdivision (a)(2) of this section because the Public Guardian has exceeded the average ratio described in subsection (2) of section 30-4115, the court shall appoint an individual to serve as a limited temporary guardian. Appointments of such limited temporary guardians shall be subject to the availability of funds appropriated as described in section 81-3141. When such funds have been exhausted in a fiscal year, no further appointments shall be made.

(2) An individual appointed as a limited temporary guardian pursuant to subdivision (a)(2) of this section shall apply to the court for expenses and fees for services performed. The court, upon hearing the application, shall fix reasonable expenses and fees, and the county board shall pay such guardian in the full amount determined by the court. The court shall set such expenses and fees at levels that: (i) Are similar to expenses and fees paid to guardians and guardians ad litem for comparable work in other legal proceedings in the county; and (ii) are intended to incentivize qualified individuals to provide high-quality services as limited temporary guardians.

(3) A county that has paid expenses and fees as provided in subdivision (k)(2) of this section may apply under section 81-3141 for reimbursement.

Source:Laws 1974, LB 354, § 244, UPC § 5-310; Laws 1978, LB 650, § 22; Laws 1993, LB 782, § 9; Laws 1997, LB 466, § 9; Laws 2011, LB157, § 38; Laws 2014, LB920, § 22; Laws 2023, LB157, § 9.

Cross References

Limited Temporary Guardian Aid Program, see section 81-3141.

Public Guardianship Act, see section 30-4101.

Annotations

Any issues relating to the granting and extension of a temporary guardianship pursuant to this section become moot upon entry of a permanent guardianship. In re Trust Created by Nabity, 289 Neb. 164, 854 N.W.2d 551 (2014).

Subsection (e) of this section provides that the temporary guardianship shall terminate after 90 days or earlier if the court deems the circumstances leading to the order for temporary guardianship no longer exist or if a proper order for a permanent guardianship is entered. In re Guardianship & Conservatorship of Forster, 22 Neb. App. 478, 856 N.W.2d 134 (2014).

30-2627. Who may be guardian; priorities; bond.

(a) Any competent person or the Public Guardian may be appointed guardian of a person alleged to be incapacitated, except that it shall be unlawful for any agency providing residential care in an institution or community-based program, or any owner, part owner, manager, administrator, employee, or spouse of an owner, part owner, manager, administrator, or employee of any nursing home, room and board home, assisted-living facility, or institution engaged in the care, treatment, or housing of any person physically or mentally handicapped, infirm, or aged to be appointed guardian of any such person residing, being under care, receiving treatment, or being housed in any such home, facility, or institution within the State of Nebraska. Nothing in this subsection shall prevent the spouse, adult child, parent, or other relative of the person alleged to be incapacitated from being appointed guardian or prevent the guardian officer for one of the Nebraska veterans homes as provided in section 80-327 from being appointed guardian or conservator for the person alleged to be incapacitated. It shall be unlawful for any county attorney or deputy county attorney appointed as guardian for a person alleged to be incapacitated to circumvent his or her duties or the rights of the ward pursuant to the Nebraska Mental Health Commitment Act by consenting to inpatient or outpatient psychiatric treatment over the objection of the ward.

(b) Persons who are not disqualified under subsection (a) of this section and who exhibit the ability to exercise the powers to be assigned by the court have priority for appointment as guardian in the following order:

(1) A person nominated most recently by one of the following methods:

(i) A person nominated by the incapacitated person in a power of attorney or a durable power of attorney;

(ii) A person acting under a power of attorney or durable power of attorney; or

(iii) A person nominated by an attorney in fact who is given power to nominate in a power of attorney or a durable power of attorney executed by the incapacitated person;

(2) The spouse of the incapacitated person;

(3) An adult child of the incapacitated person;

(4) A parent of the incapacitated person, including a person nominated by will or other writing signed by a deceased parent;

(5) Any relative of the incapacitated person with whom he or she has resided for more than six months prior to the filing of the petition;

(6) A person nominated by the person who is caring for him or her or paying benefits to him or her;

(7) The Public Guardian.

(c) When appointing a guardian, the court shall take into consideration the expressed wishes of the allegedly incapacitated person. The court, acting in the best interest of the incapacitated person, may pass over a person having priority and appoint a person having lower priority or no priority. With respect to persons having equal priority, the court shall select the person it deems best qualified to serve.

(d) In its order of appointment, unless waived by the court, the court shall require any person appointed as guardian to successfully complete within three months of such appointment a training program approved by the Public Guardian. If the person appointed as guardian does not complete the training program, the court shall issue an order to show cause why such person should not be removed as guardian.

(e) The court may require a guardian to furnish a bond in an amount and conditioned in accordance with the provisions of sections 30-2640 and 30-2641. The Public Guardian shall not be required to post bond.

Source:Laws 1974, LB 354, § 245, UPC § 5-311; Laws 1982, LB 428, § 10; Laws 1985, LB 292, § 2; Laws 1993, LB 782, § 10; Laws 1997, LB 396, § 2; Laws 1997, LB 466, § 10; Laws 1997, LB 608, § 1; Laws 2014, LB920, § 23.

Cross References

Nebraska Mental Health Commitment Act, see section 71-901.

Training program, curricula, see section 30-2601.01.

Annotations

Subdivision (b)(4) of this section evidences a legislative preference that a parent of an incapacitated person be appointed guardian over a person with no priority. In re Guardianship of Benjamin E., 289 Neb. 693, 856 N.W.2d 447 (2014).

Subsection (c) of this section does not require a specific finding that it is in the best interest of the incapacitated person to pass over a person with priority. In re Guardianship of Benjamin E., 289 Neb. 693, 856 N.W.2d 447 (2014).

When two persons have equal priority, the Nebraska Probate Code directs the court to appoint the person "best qualified to serve" as guardian. In re Guardianship & Conservatorship of Karin P., 271 Neb. 917, 716 N.W.2d 681 (2006).

Subsection (a) of this section provides that any competent person may be appointed guardian of a person alleged to be incapacitated and that nothing in this subsection prevents spouses, adult children, parents, or relatives of the person alleged to be incapacitated from serving in that capacity. In re Guardianship of Aimee S., 26 Neb. App. 380, 920 N.W.2d 18 (2018).

Subsection (b) of this section provides that persons who are not disqualified by subsection (a) of this section and who exhibit the ability to exercise the powers to be assigned by the court have priority in the order listed. In re Guardianship of Aimee S., 26 Neb. App. 380, 920 N.W.2d 18 (2018).

Subsection (b)(4) of this section allows a parent to serve as a guardian. In re Guardianship of Aimee S., 26 Neb. App. 380, 920 N.W.2d 18 (2018).

30-2628. General powers, rights, and duties of guardian; inventory.

(a) Except as limited by section 30-2620, a guardian of an incapacitated person has the same powers, rights, and duties respecting the guardian's ward that a parent has respecting the parent's unemancipated minor child, except that a guardian is not liable to third persons for acts of the ward solely by reason of the parental relationship. In particular, and without qualifying the foregoing, a guardian has the following powers and duties, except as may be specified by order of the court:

(1) To the extent that it is consistent with the terms of any order by a court of competent jurisdiction relating to detention or commitment of the ward, a guardian is entitled to custody of the person of his or her ward and may establish the ward's place of abode within this state or, with court permission, outside of this state. When establishing the ward's place of abode, a guardian shall make every reasonable effort to ensure that the placement is the least restrictive alternative. A guardian shall authorize a placement to a more restrictive environment only after careful evaluation of the need for such placement. The guardian may obtain a professional evaluation or assessment that such placement is in the best interest of the ward.

(2) If entitled to custody of his or her ward, a guardian shall make provision for the care, comfort, and maintenance of his or her ward and, whenever appropriate, arrange for the ward's training and education. Without regard to custodial rights of the ward's person, a guardian shall take reasonable care of his or her ward's clothing, furniture, vehicles, and other personal effects and commence protective proceedings if other property of his or her ward is in need of protection.

(3) A guardian may give any consents or approvals that may be necessary to enable the ward to receive medical, psychiatric, psychological, or other professional care, counsel, treatment, or service. When making such medical or psychiatric decisions, the guardian shall consider and carry out the intent of the ward expressed prior to incompetency to the extent allowable by law. Notwithstanding this provision or any other provision of the Nebraska Probate Code, the ward may authorize the release of financial, medical, and other confidential records pursuant to sections 20-161 to 20-166.

(4) If no conservator for the estate of the ward has been appointed, a guardian shall, within thirty days after appointment, prepare and file with the appointing court a complete inventory of the ward's estate together with the guardian's oath or affirmation that the inventory is complete and accurate so far as the guardian is informed. The guardian shall mail a copy thereof by first-class mail to the ward, if the ward can be located and has attained the age of fourteen years, and to all other interested persons as defined in section 30-2601. The guardian shall file with the court a certificate of mailing showing that copies were sent to all interested persons by first-class mail along with a form to send back to the court that indicates if such person wants to continue receiving notifications about the proceedings. The guardian shall keep suitable records of the guardian's administration and exhibit the same on request of any interested person. To the extent a guardian, who has not been named a conservator, has possession or control of the ward's estate, the guardian shall file with the court an updated inventory every year along with a certificate of mailing showing that copies were sent to all interested persons and, if a bond has been required, to the bonding company by first-class mail.

(5) If no conservator for the estate of the ward has been appointed, a guardian may:

(i) Institute proceedings to compel any person under a duty to support the ward or to pay sums for the welfare of the ward to perform such person's duty;

(ii) Receive money and tangible property deliverable to the ward and apply the money and property for support, care, and education of the ward; but a guardian may not use funds from his or her ward's estate for room and board which the guardian or the guardian's spouse, parent, or child has furnished the ward unless a charge for the service is approved by order of the court made upon notice to at least one of the next of kin of the ward, if notice is possible. A guardian must exercise care to conserve any excess for the ward's needs; and

(iii) Exercise a settlor's powers with respect to revocation, amendment, or distribution of trust property when authorized by a court acting under the authority of subsection (f) of section 30-3854. In acting under the authority of subsection (f) of section 30-3854, the court shall proceed in the same manner as provided under subdivision (3) of section 30-2637.

(6) A guardian is required to report the condition of his or her ward and of the estate which has been subject to the guardian's possession or control, at least every year and as required by the court or court rule. The court shall receive from any interested person, for a period of thirty days after the filing of the guardian's report, any comments with regard to the need for continued guardianship or amendment of the guardianship order. If the court has reason to believe that additional rights should be returned to the ward or assigned to the guardian, the court shall set a date for a hearing and may provide all protections as set forth for the original finding of incapacity and appointment of a guardian.

(7) If a conservator has been appointed, all of the ward's estate received by the guardian in excess of those funds expended to meet current expenses for support, care, and education of the ward must be paid to the conservator for management as provided in the Nebraska Probate Code, and the guardian must account to the conservator for funds expended.

(b) Any guardian of one for whom a conservator also has been appointed shall control the custody and care of the ward and is entitled to receive reasonable sums for the guardian's services and for room and board furnished to the ward as agreed upon between the guardian and the conservator if the amounts agreed upon are reasonable under the circumstances. The guardian may request the conservator to expend the ward's estate by payment to third persons or institutions for the ward's care and maintenance.

(c) Nothing in subdivision (a)(3) of this section or in any other part of this section shall be construed to alter the decisionmaking authority of an attorney in fact designated and authorized under sections 30-3401 to 30-3432 to make health care decisions pursuant to a power of attorney for health care.

Source:Laws 1974, LB 354, § 246, UPC § 5-312; Laws 1982, LB 428, § 11; Laws 1993, LB 782, § 11; Laws 1997, LB 466, § 11; Laws 2003, LB 130, § 130; Laws 2011, LB157, § 39; Laws 2013, LB172, § 2.

Annotations

Placing the establishment of a visitation schedule in the guardian is anticipated by the statutory duties assigned to a guardian with full powers. In re Guardianship & Conservatorship of Karin P., 271 Neb. 917, 716 N.W.2d 681 (2006).

Pursuant to subsection (c) of this section, if a guardian has been appointed and an attorney in fact has been designated and authorized under a valid power of attorney for health care, the attorney in fact's authority to make health care decisions supersedes the guardian's authority to make such decisions. In re Guardianship & Conservatorship of Mueller, 23 Neb. App. 430, 872 N.W.2d 906 (2015).

Subsection (c) of this section does not preclude a court from considering a ward's best interests and revoking or setting aside a health care power of attorney in favor of a guardianship when the facts support such action. In re Guardianship & Conservatorship of Mueller, 23 Neb. App. 430, 872 N.W.2d 906 (2015).

In a guardianship proceeding, where no conservator for the estate of the ward had been appointed, the coguardians who had made payments to third-party retailers from the assets of the ward did not violate subdivision (a)(4)(ii) of this section by not obtaining prior judicial approval, because no such requirement exists for payments to third-party retailers. The coguardians who made unapproved payments to themselves from the assets of the ward for the ward's room and board violated subdivision (a)(4)(ii) of this section. In re Guardianship of Gaube, 14 Neb. App. 259, 707 N.W.2d 16 (2005).

30-2629. Proceedings subsequent to appointment; venue.

(a) Unless otherwise provided in the Nebraska Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, the court where the ward resides has concurrent jurisdiction with the court which appointed the guardian, or in which acceptance of a testamentary appointment was filed, over resignation, removal, accounting, and other proceedings relating to the guardianship.

(b) Unless otherwise provided in the Nebraska Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, if the court located where the ward resides is not the court in which acceptance of appointment is filed, the court in which proceedings subsequent to appointment are commenced shall in all appropriate cases notify the other court, in this or another state, and after consultation with that court determine whether to retain jurisdiction or transfer the proceedings to the other court, whichever may be in the best interest of the ward. A copy of any order accepting a resignation or removing a guardian shall be sent to the court in which acceptance of appointment is filed.

Source:Laws 1974, LB 354, § 247, UPC § 5-313; Laws 1997, LB 466, § 12; Laws 2011, LB157, § 40.

Cross References

Nebraska Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, see section 30-3901.

30-2630. Protective proceedings.

Upon petition and after notice and hearing in accordance with the provisions of this part, the court may appoint a conservator or make other protective order for cause as follows:

(1) Appointment of a conservator or other protective order may be made in relation to the estate and property affairs of a minor if the court is satisfied by clear and convincing evidence that a minor owns money or property that requires management or protection which cannot otherwise be provided, has or may have business affairs which may be jeopardized or prevented by his or her minority, or that funds are needed for his or her support and education and that protection is necessary or desirable to obtain or provide funds.

(2) Appointment of a conservator or other protective order may be made in relation to the estate and property affairs of a person if the court is satisfied by clear and convincing evidence that (i) the person is unable to manage his or her property and property affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, or lack of discretion in managing benefits received from public funds, detention by a foreign power, or disappearance; and (ii) the person has property which will be wasted or dissipated unless proper management is provided, or that funds are needed for the support, care, and welfare of the person or those entitled to be supported by him or her and that protection is necessary or desirable to obtain or provide funds.

Source:Laws 1974, LB 354, § 248, UPC § 5-401; Laws 1982, LB 428, § 12; Laws 1993, LB 782, § 12.

Annotations

Subsection (2) of this section is neither vague nor overbroad. In re Guardianship and Conservatorship of Sim, 225 Neb. 181, 403 N.W.2d 721 (1987).

One may not have his or her property taken away and placed in the hands of a conservator merely because he or she is aged or infirm or because his or her mind is to some extent impaired by age or disease. In re Estate of Wagner, 220 Neb. 32, 367 N.W.2d 736 (1985).

Record supported finding that an 80-year-old woman was unable by reason of advanced age to manage her property and that it would be wasted or dissipated unless proper management was provided, and thus supported the appointment of a conservator. In re Estate of Oltmer, 214 Neb. 830, 336 N.W.2d 560 (1983).

Facts of case held adequate to show need for appointment of a conservator. In re Estate of Carlson, 214 Neb. 453, 334 N.W.2d 437 (1983).

A court may appoint a conservator in relation to the estate and property affairs of a person when clear and convincing evidence establishes that the person for whom a conservator is sought (1) is unable to manage his or her property and (2) has property which will be wasted or dissipated unless proper management is provided, or if it is necessary or desirable to obtain funds for the support of the person. In re Guardianship & Conservatorship of Hartwig, 11 Neb. App. 526, 656 N.W.2d 268 (2003).

30-2630.01. Temporary conservator; power of court.

(a) If a person alleged to be in need of protection under section 30-2630 has no conservator and an emergency exists, the court may, pending notice and hearing, exercise the power of a conservator or enter an emergency protective order appointing a temporary conservator, who may be the Public Guardian, to address the emergency.

(b) When the court takes action to exercise the powers of a conservator or to appoint a temporary conservator under subsection (a) of this section, an expedited hearing shall be held if requested by the person alleged to be in need of protection, or by any interested person, if the request is filed more than ten business days prior to the date set for the hearing on the petition for appointment of the conservator. If an expedited hearing is to be held, the hearing shall be held within ten business days after the request is received. At the hearing on the temporary appointment, the petitioner shall have the burden of showing by a preponderance of the evidence that temporary conservatorship continues to be necessary to address the emergency situation. Unless the person alleged to be in need of protection has counsel of his or her own choice, the court may appoint an attorney to represent the person at the hearing as provided in section 30-2636.

(c) If an expedited hearing is requested, notice shall be served as provided in section 30-2634. The notice shall specify that a temporary conservator has been appointed and shall be given at least twenty-four hours prior to the expedited hearing.

(d) At the expedited hearing, the court may render a judgment authorizing the temporary conservatorship to continue beyond the original ten-day period. The judgment shall prescribe the specific powers and duties of the temporary conservator in the letters of temporary conservatorship and shall be effective for a ninety-day period. For good cause shown, the court may extend the temporary conservatorship for successive ninety-day periods.

(e) The temporary conservatorship shall terminate at the end of the ninety-day period in which the temporary conservatorship is valid or at any time prior thereto if the court deems the circumstances leading to the order for temporary conservatorship no longer exist or if an order has been entered as a result of a hearing pursuant to section 30-2636 which has been held during the ninety-day period.

(f) If the court denies the request for the ex parte order, the court may, in its discretion, enter an order for an expedited hearing pursuant to subsections (b) through (e) of this section.

(g) If the petitioner requests the entry of an order of temporary conservatorship pursuant to subsection (a) of this section without requesting an ex parte order, the court may hold an expedited hearing pursuant to subsections (b) through (e) of this section.

(h) A temporary conservator may be removed at any time. A temporary conservator shall make any report the court requires, except that a temporary conservator shall not be required to provide the national criminal history record check and report under section 30-2602.02. In other respects the provisions of the Nebraska Probate Code concerning conservators apply to temporary conservators.

Source:Laws 1993, LB 782, § 13; Laws 1997, LB 466, § 13; Laws 2011, LB157, § 41; Laws 2014, LB920, § 24.

30-2631. Protective proceedings; jurisdiction of affairs of protected persons.

After the service of notice in a proceeding seeking the appointment of a conservator or other protective order and until termination of the proceeding, the court in which the petition is filed has:

(1) exclusive jurisdiction to determine the need for a conservator or other protective order until the proceedings are terminated;

(2) exclusive jurisdiction to determine how the estate of the protected person which is subject to the laws of this state shall be managed, expended or distributed to or for the use of the protected person or any of his dependents;

(3) concurrent jurisdiction to determine the validity of claims against the person or estate of the protected person and his title to any property or claim.

Source:Laws 1974, LB 354, § 249, UPC § 5-402.

30-2632. Venue.

Unless otherwise provided in the Nebraska Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, venue for proceedings under this part is:

(1) In the place in this state where the person to be protected resides whether or not a guardian has been appointed in another place; or

(2) If the person to be protected does not reside in this state, in any place where he or she has property.

Source:Laws 1974, LB 354, § 250, UPC § 5-403; Laws 2011, LB157, § 42.

Cross References

Nebraska Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, see section 30-3901.

30-2633. Original petition for appointment or protective order.

(a) The person to be protected, any person who is interested in his or her estate, property affairs, or welfare including his or her parent, guardian, or custodian, or any person who would be adversely affected by lack of effective management of his or her property and property affairs may petition for the appointment of a conservator or for other appropriate protective order.

(b) The petition shall set forth, to the extent known, the interest of the petitioner; the name, age, residence, and address of the person to be protected; the name and address of his or her guardian, if any; the name and address of his or her nearest relative known to the petitioner; a general statement of his or her property with an estimate of the value thereof, including any compensation, insurance, pension, or allowance to which he or she is entitled; and specific allegations regarding the necessity of the appointment of a conservator or other protective order. If the appointment of a conservator is requested, the petition shall also set forth the name and address of the person whose appointment is sought and the basis of his or her priority for appointment. An interested person may file a motion to make more definite and certain requesting a specific description of the functional limitations and physical and mental condition of the person sought to be protected with the specific reasons prompting the request for conservatorship.

Source:Laws 1974, LB 354, § 251, UPC § 5-404; Laws 1982, LB 428, § 13; Laws 1993, LB 782, § 14; Laws 1997, LB 466, § 14.

Annotations

Where the objector has an interest in the welfare of the ward because the objector would have an obligation to support the ward during his or her lifetime if the ward's funds are mismanaged, then that objector would have standing to contest the conservatorship. In re Guardianship & Conservatorship of Barnhart, 290 Neb. 314, 859 N.W.2d 856 (2015).

Proceedings initiated to appoint a conservator are special proceedings. In re Guardianship & Conservatorship of Larson, 270 Neb. 837, 708 N.W.2d 262 (2006).

30-2634. Notice; waiver.

(a) In a proceeding for appointment of a conservator or other protective order, notice of hearing shall be given to each of the following:

(1) The person to be protected and his or her spouse, parents, and adult children;

(2) Any person who is serving as guardian or conservator or who has care and custody of the person to be protected; and

(3) If no other person is notified under subdivision (1) of this subsection, at least one of the closest adult relatives of the person to be protected, if any can be found.

(b) Notice which is appropriate to the circumstances of the person to be protected shall be served personally at least fourteen days prior to the hearing on the person to be protected and his or her spouse and parents if they can be found within the state. The court may require the petitioner to serve notice in alternative formats or with appropriate auxiliary aids and services if necessary to ensure equally effective communication with the protected person or person in need of protection, including, but not limited to, the use of braille, sign language, large print, reading aloud, or other reasonable accommodation for the known disabilities of the individual based on the allegations specified in the petition.

(c) If petitioners are the natural parents or if petitioner is a surviving natural parent or a parent who has been given sole and exclusive custody of the minor in a legal proceeding, petitioners or petitioner may waive notice to parents and may also waive notice to the minor, if the minor is under the age of fourteen years. Waiver of notice by the person to be protected shall not be effective unless he or she attends the hearing and the court determines that the waiver is appropriate. The court may, in its discretion, direct that notice be given as provided in section 30-2220 or in any other manner and to any other persons as the court may determine.

(d) Notice of a petition for appointment of a conservator or other initial protective order, and of any subsequent hearing, must be given to any person who has filed a request for notice under section 30-2635 and to interested persons and other persons as the court may direct. Except as otherwise provided in subsections (a) and (b) of this section, notice shall be given in accordance with section 30-2220.

(e) In addition to notifying him or her of the filing of the petition and the time and place of the hearing on the petition, the notice required to be served upon the person to be protected shall list the following rights of the person:

(1) The right to request the appointment of an attorney;

(2) The right to present evidence in his or her own behalf;

(3) The right to be notified regarding how to contact the temporary conservator if a temporary conservator is appointed;

(4) The right to compel attendance of witnesses;

(5) The right to cross-examine witnesses, including the court-appointed physician;

(6) The right to appeal any final order; and

(7) The right to request a hearing closed to the public.

(f) If a temporary conservator has been appointed, the notice required in subsection (e) of this section shall include a notice of such appointment and the right to request an expedited hearing pursuant to section 30-2630.01.

Source:Laws 1974, LB 354, § 252, UPC § 5-405; Laws 1978, LB 650, § 39; Laws 1993, LB 782, § 15; Laws 1997, LB 466, § 15.

30-2635. Protective proceedings; request for notice; interested person.

Any interested person who desires to be notified before any order is made in a protective proceeding may file with the registrar a request for notice subsequent to payment of any fee required by statute or court rule. The clerk shall mail a copy of the demand to the conservator if one has been appointed. A request is not effective unless it contains a statement showing the interest of the person making it and his address, or that of his attorney, and is effective only as to matters occurring after the filing. Any governmental agency paying or planning to pay benefits to the person to be protected is an interested person in protective proceedings.

Source:Laws 1974, LB 354, § 253, UPC § 5-406.

30-2636. Procedure concerning hearing and order on original petition.

(a) Upon receipt of a petition for appointment of a conservator or other protective order because of minority, the court shall set a date for hearing on the matters alleged in the petition. If, at any time in the proceeding, the court determines that the interests of the minor are or may be inadequately represented, the court may appoint an attorney to represent the minor, giving consideration to the choice of the minor if he or she is fourteen years of age or older. A lawyer appointed by the court to represent a minor as provided in sections 30-4201 to 30-4210 has the powers and duties of a guardian ad litem.

(b) Upon receipt of a petition for appointment of a conservator or other protective order for reasons other than minority, the court shall set a date for hearing. Unless the person to be protected has counsel of his or her own choice, the court may appoint an attorney to represent him or her in the proceeding. The court may appoint a guardian ad litem as provided in sections 30-4201 to 30-4210 to advocate for the best interests of the person to be protected. If the alleged disability is mental illness, mental deficiency, physical illness or disability, chronic use of drugs, or chronic intoxication, the court may direct that the person to be protected be examined by a physician designated by the court, preferably a physician who is not connected with any institution in which the person is a patient or is detained. The court may send a visitor to interview the person to be protected. The visitor may be a guardian ad litem or an officer or employee of the court.

(c) After hearing, upon finding that clear and convincing evidence exists for the appointment of a conservator or other protective order, the court shall make an appointment or other appropriate protective order.

Source:Laws 1974, LB 354, § 254, UPC § 5-407; Laws 1978, LB 650, § 23; Laws 1993, LB 782, § 16; Laws 2016, LB934, § 27.

30-2637. Permissible court orders.

The court has the following powers which may be exercised directly or through a conservator with respect to the estate and affairs of protected persons:

(1) While a petition for appointment of a conservator or other protective order is pending and after preliminary hearing and without notice to others, the court has power to preserve and apply the property of the person to be protected as may be required for his or her benefit or the benefit of his or her dependents.

(2) After hearing and upon determining that a basis for an appointment or other protective order exists with respect to a minor without other disability, the court has all those powers over the estate and affairs of the minor which are or might be necessary for the best interests of the minor, the minor's family, and members of the minor's household.

(3) After hearing and upon determining by clear and convincing evidence that a basis for an appointment or other protective order exists with respect to a person for reasons other than minority, the court has, for the benefit of the person and members of his or her household, all the powers over his or her estate and affairs which he or she could exercise if present and not under disability except the power to make a will. These powers include, but are not limited to, power to make gifts, to convey or release his or her contingent and expectant interests in property including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety, to exercise or release his or her powers as trustee, personal representative, custodian for minors, conservator, or donee of a power of appointment, to enter into contracts, to create revocable or irrevocable trusts of property of the estate which may extend beyond his or her disability or life, to exercise or release his or her powers as settlor of a revocable trust as provided in subsection (f) of section 30-3854, to exercise options of the disabled person to purchase securities or other property, to exercise his or her rights to elect options and change beneficiaries under insurance and annuity policies and to surrender the policies for their cash value, to exercise his or her right to an elective share in the estate of his or her deceased spouse, and to renounce any interest by testate or intestate succession or by inter vivos transfer.

(4) The court may exercise or direct the exercise of its authority to exercise or release powers of appointment of which the protected person is donee, to renounce interests, to make gifts in trust or otherwise exceeding twenty percent of any year's income of the estate, or to change beneficiaries under insurance and annuity policies, only if satisfied, after notice and hearing, that it is in the best interests of the protected person, and that he or she either is incapable of consenting or has consented to the proposed exercise of power.

(5) An order made pursuant to this section determining by clear and convincing evidence that a basis for appointment of a conservator or other protective order exists has no effect on the capacity of the protected person to make a will.

Source:Laws 1974, LB 354, § 255, UPC § 5-408; Laws 1993, LB 782, § 17; Laws 1997, LB 466, § 16; Laws 2003, LB 130, § 131.

Annotations

Under subsection (3) of this section, the court may take action on behalf of a protected person or the court may direct a conservator to take those actions if the court determines by clear and convincing evidence that such actions are in the best interests of the protected person. Subsection (3) of this section gives the court the power to exercise all powers over the estate of a settlor which the settlor could exercise if he or she were not under disability, except the power to make a will. In re Guardianship & Conservatorship of Garcia, 262 Neb. 205, 631 N.W.2d 464 (2001).

Adjudication of what constitutes best interests must be had with reference to existing rules of law. In re Estate of Carlson, 214 Neb. 453, 334 N.W.2d 437 (1983).

30-2638. Protective arrangements and single transactions authorized.

(a) If it is established in a proper proceeding that a basis exists as described in section 30-2630 for affecting the property and affairs of a person, the court, without appointing a conservator, may authorize, direct or ratify any transaction necessary or desirable to achieve any security, service, or care arrangement meeting the foreseeable needs of the protected person. Protective arrangements include, but are not limited to, payment, delivery, deposit or retention of funds or property, sale, mortgage, lease or other transfer of property, entry into an annuity contract, a contract for life care, a deposit contract, a contract for training and education, or addition to or establishment of a suitable trust.

(b) When it has been established in a proper proceeding that a basis exists as described in section 30-2630 for affecting the property and affairs of a person, the court, without appointing a conservator, may authorize, direct or ratify any contract, trust or other transaction relating to the protected person's financial affairs or involving his estate if the court determines that the transaction is in the best interests of the protected person.

(c) Before approving a protective arrangement or other transaction under this section, the court shall consider the interests of creditors and dependents of the protected person and, in view of his disability, whether the protected person needs the continuing protection of a conservator. The court may appoint a special conservator to assist in the accomplishment of any protective arrangement or other transaction authorized under this section who shall have the authority conferred by the order and serve until discharged by order after report to the court of all matters done pursuant to the order of appointment.

Source:Laws 1974, LB 354, § 256, UPC § 5-409.

30-2639. Who may be appointed conservator; priorities.

(a) The court may appoint an individual, a corporation with general power to serve as trustee, or the Public Guardian as conservator of the estate of a protected person, except that it shall be unlawful for any agency providing residential care in an institution or community-based program or any owner, part owner, manager, administrator, employee, or spouse of an owner, part owner, manager, administrator, or employee of any nursing home, room and board home, assisted-living facility, or institution engaged in the care, treatment, or housing of any person physically or mentally handicapped, infirm, or aged to be appointed conservator of any such person residing, being under care, receiving treatment, or being housed in any such home, facility, or institution within the State of Nebraska. Nothing in this subsection shall prevent the spouse, adult child, parent, or other relative of the person in need of protection from being appointed conservator.

(1) A person nominated most recently by one of the following methods:

(i) A person nominated by the protected person in a power of attorney or durable power of attorney;

(ii) A person acting under a power of attorney or durable power of attorney; or

(iii) A person nominated by an attorney in fact who is given power to nominate in a power of attorney or a durable power of attorney executed by the protected person;

(2) A conservator, guardian of property, or other like fiduciary appointed or recognized by the appropriate court of any other jurisdiction in which the protected person resides;

(3) An individual or corporation nominated by the protected person if he or she is fourteen or more years of age and has, in the opinion of the court, sufficient mental capacity to make an intelligent choice;

(4) The spouse of the protected person;

(5) An adult child of the protected person;

(6) A parent of the protected person or a person nominated by the will of a deceased parent;

(7) Any relative of the protected person with whom he or she has resided for more than six months prior to the filing of the petition;

(8) A person nominated by the person who is caring for him or her or paying benefits to him or her;

(9) The Public Guardian.

(c) When appointing a conservator, the court shall take into consideration the expressed wishes of the person to be protected. A person having priority listed in subdivision (2), (4), (5), (6), or (7) of subsection (b) of this section may nominate in writing a person to serve in his or her stead. With respect to persons having equal priority, the court shall select the person it deems best qualified of those willing to serve. The court, acting in the best interest of the protected person, may pass over a person having priority and appoint a person having lower priority or no priority.

(d) In its order of appointment, unless waived by the court, the court shall require any person appointed as conservator to successfully complete within three months of such appointment a training program approved by the Public Guardian. If the person appointed as conservator does not complete the training program, the court shall issue an order to show cause why such person should not be removed as conservator.

Source:Laws 1974, LB 354, § 257, UPC § 5-410; Laws 1985, LB 292, § 3; Laws 1993, LB 782, § 18; Laws 1997, LB 466, § 17; Laws 1997, LB 608, § 2; Laws 2014, LB920, § 25.

Cross References

Training program, curricula, see section 30-2601.01.

Annotations

When an attorney in fact may be accountable to a conservator of an estate for unauthorized transfers of property made to himself or herself, a county court may properly find it is in the principal's best interests to bypass the attorney in fact's priority for appointment as the principal's conservator and to appoint a disinterested third party as the conservator. In re Conservatorship of Anderson, 262 Neb. 51, 628 N.W.2d 233 (2001).

30-2640. Bond.

For estates with a net value of more than ten thousand dollars, the bond for a conservator shall be in the amount of the aggregate capital value of the personal property of the estate in the conservator's control plus one year's estimated income from all sources minus the value of securities and other assets deposited under arrangements requiring an order of the court for their removal. The bond of the conservator shall be conditioned upon the faithful discharge of all duties of the trust according to law, with sureties as the court shall specify. The court, in lieu of sureties on a bond, may accept other security for the performance of the bond, including a pledge of securities or a mortgage of land owned by the conservator. For good cause shown, the court may eliminate the requirement of a bond or decrease or increase the required amount of any such bond previously furnished. The court shall not require a bond if the protected person executed a written, valid power of attorney that specifically nominates a guardian or conservator and specifically does not require a bond. The court shall consider as one of the factors of good cause, when determining whether a bond should be required and the amount thereof, the protected person's choice of any attorney in fact or alternative attorney in fact. No bond shall be required of any financial institution, as that term is defined in section 8-101.03, or any officer, director, employee, or agent of the financial institution serving as a conservator, or any trust company serving as a conservator. The Public Guardian shall not be required to post bond.

Source:Laws 1974, LB 354, § 258, UPC § 5-411; Laws 1985, LB 292, § 4; Laws 2011, LB157, § 43; Laws 2014, LB920, § 26; Laws 2017, LB140, § 152.

30-2641. Terms and requirements of bonds.

(a) The following requirements and provisions apply to any bond required under section 30-2640:

(1) Unless otherwise provided by the terms of the approved bond, sureties are jointly and severally liable with the conservator and with each other;

(2) By executing an approved bond of a conservator, the surety consents to the jurisdiction of the court which issued letters to the primary obligor in any proceeding pertaining to the fiduciary duties of the conservator and naming the surety as a party defendant. Notice of any proceeding shall be delivered to the surety or mailed to him by registered or certified mail at his address as listed with the court where the bond is filed and to his address as then known to the petitioner;

(3) On petition of a successor conservator or any interested person, a proceeding may be initiated against a surety for breach of the obligation of the bond of the conservator;

(4) The bond of the conservator is not void after the first recovery but may be proceeded against from time to time until the whole penalty is exhausted.

(b) No proceeding may be commenced against the surety on any matter as to which an action or proceeding against the primary obligor is barred by adjudication or limitation.

Source:Laws 1974, LB 354, § 259, UPC § 5-412.

Annotations

Subsection (b) of this section prohibits an action against a surety on a guardian bond if the same action cannot be taken against the primary obligor because of an adjudication or limitation. Sawyer v. State Surety Co., 251 Neb. 440, 558 N.W.2d 43 (1997).

30-2642. Acceptance of appointment; consent to jurisdiction.

By accepting appointment, a conservator submits personally to the jurisdiction of the court in any proceeding relating to the estate that may be instituted by any interested person. Notice of any proceeding shall be delivered to the conservator, or mailed to him by registered or certified mail at his address as listed in the petition for appointment or as thereafter reported to the court and to his address as then known to the petitioner.

Source:Laws 1974, LB 354, § 260, UPC § 5-413.

30-2643. Attorney, guardian ad litem, physician, conservator, special conservator, and visitor; compensation and expenses; in forma pauperis proceedings; frivolous actions.

The reasonable fees and costs of an attorney, a guardian ad litem, a physician, a conservator, a special conservator, and a visitor appointed by the court for the person to be protected shall be allowed, disallowed, or adjusted by the court and may be paid from the estate of the protected person if the protected person possesses an estate or, if not, shall be paid by the county in which the proceedings are brought or by the petitioner as costs of the action. An action under sections 30-2601 to 30-2661 may be initiated or defended in forma pauperis in accordance with sections 25-2301 to 25-2310. The court may assess attorney's fees and costs against the petitioner upon a showing that the action was frivolous in accordance with sections 25-824 to 25-824.03.

Source:Laws 1974, LB 354, § 261, UPC § 5-414; Laws 1993, LB 782, § 19; Laws 1999, LB 689, § 15.

Annotations

In a conservatorship proceeding for a protected person, the court is statutorily authorized to assess the fees of an appointed person to the estate of the protected person if the protected person possesses an estate or, if not, to the county in which the proceedings are brought or the petitioner. In re Guardianship & Conservatorship of J.F., 307 Neb. 452, 949 N.W.2d 496 (2020).

This section applies only to conservatorship proceedings. It does not authorize a court to award costs and fees in a guardianship proceeding for a minor. In re Guardianship of Brydon P., 286 Neb. 661, 838 N.W.2d 262 (2013).

A guardian is entitled to attorney fees reasonably incurred in the successful defense of his actions as a fiduciary. In re Guardianship of Bremer, 209 Neb. 267, 307 N.W.2d 504 (1981).

30-2644. Death, resignation, or removal of conservator.

The court may remove a conservator for good cause, upon notice and hearing, or accept the resignation of a conservator. After his death, resignation or removal, the court may appoint another conservator on such notice as the court may direct. A conservator so appointed succeeds to the title and powers of his predecessor.

Source:Laws 1974, LB 354, § 262, UPC § 5-415.

Annotations

The court sets forth the grounds for "good cause" to remove a conservator. In re Conservatorship of Estate of Marsh, 5 Neb. App. 899, 566 N.W.2d 783 (1997).

30-2645. Petitions for orders subsequent to appointment.

(a) Any person interested in the welfare of a person for whom a conservator has been appointed may file a petition in the appointing court for an order (1) requiring bond or security or additional bond or security, or reducing bond, (2) requiring an accounting for the administration of the trust, (3) directing distribution, (4) removing the conservator and appointing a temporary or successor conservator, or (5) granting other appropriate relief.

(b) A conservator may petition the appointing court for instructions concerning his fiduciary responsibility.

Source:Laws 1974, LB 354, § 263, UPC § 5-416.

Annotations

Designation as a beneficiary in a will, prior to the testator's death, does not alone establish enough financial interest in a ward's welfare to establish standing to contest a conservatorship. In re Guardianship & Conservatorship of Barnhart, 290 Neb. 314, 859 N.W.2d 856 (2015).

In a conservatorship proceeding, where an objector has no concerns for the ward's welfare but only concerns of its own potential financial expectancy, such concerns do not give the objector standing to challenge a guardianship as "[a]ny person interested in the [ward's] welfare" under this section. In re Guardianship & Conservatorship of Barnhart, 290 Neb. 314, 859 N.W.2d 856 (2015).

"Any person interested in the welfare" of a protected person has standing to intervene and is not limited to those persons more narrowly defined as "interested persons" in subsection (21) of section 30-2209. In re Guardianship & Conservatorship of Cordel, 274 Neb. 545, 741 N.W.2d 675 (2007).

The county court erred as a matter of law in failing to hold an evidentiary hearing and in failing to resolve the disputed issues in the conservatorship proceedings when this section provides that the court may enter orders upon notice and hearing. In re Guardianship & Conservatorship of Trobough, 267 Neb. 661, 676 N.W.2d 364 (2004).

30-2646. General duty of conservator.

In the exercise of his or her powers, a conservator is to act as a fiduciary and shall comply with the prudent investor rule set forth in sections 30-3883 to 30-3889.

Source:Laws 1974, LB 354, § 264, UPC § 5-417; Laws 1997, LB 54, § 15; Laws 2003, LB 130, § 132.

30-2647. Conservator; duties; inventory and records.

Within thirty days after appointment, every conservator shall prepare and file with the appointing court a complete inventory of the estate of the protected person together with the conservator's oath or affirmation that the inventory is complete and accurate so far as he or she is informed. The conservator shall mail a copy thereof by first-class mail to the protected person, if the protected person can be located and has attained the age of fourteen years, and to all other interested persons as defined in section 30-2601. The conservator shall file with the court a certificate of mailing showing that copies were sent to all interested persons by first-class mail along with a form to send back to the court that indicates if such person wants to continue receiving notifications about the proceedings. Every conservator shall file an updated inventory with the annual accounting required under section 30-2648. The conservator shall keep suitable records of his or her administration and exhibit the same on request of any interested person.

Source:Laws 1974, LB 354, § 265, UPC § 5-418; Laws 2011, LB157, § 44; Laws 2013, LB172, § 3.

Annotations

A conservator has a duty to provide suitable records of his or her administration under this section, and therefore, probate courts have the power to enforce compliance with this section in proper situations. In re Guardianship & Conservatorship of Borowiak, 10 Neb. App. 22, 624 N.W.2d 72 (2001).

Generally, "suitable records" means those papers and original documents supporting and verifying the conservator's accounts, but a more precise definition depends on the case before the court dealing with a request for compliance with this section. In re Guardianship & Conservatorship of Borowiak, 10 Neb. App. 22, 624 N.W.2d 72 (2001).

The term "suitable records" within this section may include bank statements, canceled checks, deposit slips, and certificates of deposit. In re Guardianship & Conservatorship of Borowiak, 10 Neb. App. 22, 624 N.W.2d 72 (2001).

30-2648. Accounts.

Every conservator must account to the court for his or her administration of the trust annually, upon his or her resignation or removal, and at such other times as the court may direct. On termination of the protected person's minority or disability, a conservator may account to the court, or the conservator may account to the former protected person or the former protected person's personal representative. Subject to appeal or vacation within the time permitted, an order, made upon notice and hearing, allowing an intermediate account of a conservator, adjudicates as to the conservator's liabilities concerning the matters considered in connection therewith; and an order, made upon notice and hearing, allowing a final account adjudicates as to all previously unsettled liabilities of the conservator to the protected person or the protected person's successors relating to the conservatorship. In connection with any account, the court may require a conservator to submit to a physical check of the estate in his or her control, to be made in any manner the court may specify.

Source:Laws 1974, LB 354, § 266, UPC § 5-419; Laws 2011, LB157, § 45.

Annotations

There is no final adjudication of an intermediate account without an evidentiary hearing. In re Guardianship & Conservatorship of Cordel, 274 Neb. 545, 741 N.W.2d 675 (2007).

The word "compensation" in the context of letters of conservatorship and Neb. Ct. R. of Cty. Cts. 43 (rev. 2000) includes any form of payment or remuneration made to the conservator from assets of the protected person. In re Conservatorship of Hanson, 268 Neb. 200, 682 N.W.2d 207 (2004).

An order allowing an intermediate account adjudicates as to the liabilities of the conservator only if made upon notice and hearing and then only concerning the matters considered. In re Conservatorship of Estate of Lindauer, 221 Neb. 146, 376 N.W.2d 1 (1985).

30-2649. Conservators; title by appointment.

The appointment of a conservator vests in him title as trustee to all property of the protected person, presently held or thereafter acquired, including title to any property theretofore held for the protected person by custodians or attorneys in fact. The appointment of a conservator is not a transfer or alienation within the meaning of general provisions of any federal or state statute or regulation, insurance policy, pension plan, contract, will or trust instrument, imposing restrictions upon or penalties for transfer or alienation by the protected person of his rights or interest, but this section does not restrict the ability of persons to make specific provisions by contract or dispositive instrument relating to a conservator.

Source:Laws 1974, LB 354, § 267, UPC § 5-420.

30-2650. Recording of conservator's letters.

Letters of conservatorship are evidence of transfer of all assets of a protected person to the conservator. An order terminating a conservatorship is evidence of transfer of all assets of the estate from the conservator to the protected person, or his successors. Subject to the requirements of general statutes governing the filing or recordation of documents of title to land or other property, letters of conservatorship, and orders terminating conservatorships, may be filed or recorded to give record notice of title as between the conservator and the protected person.

Source:Laws 1974, LB 354, § 268, UPC § 5-421.

30-2651. Encumbrance or transaction involving conflict of interest; voidable; exceptions.

Any sale or encumbrance to a conservator, his spouse, agent or attorney, or any corporation or trust in which he has a substantial beneficial interest, or any transaction which is affected by a substantial conflict of interest is voidable unless the transaction is approved by the court after notice to interested persons and others as directed by the court.

Source:Laws 1974, LB 354, § 269, UPC § 5-422.

30-2652. Persons dealing with conservators; protection.

A person who in good faith either assists a conservator or deals with him for value in any transaction, other than those requiring a court order as provided in section 30-2637, is protected as if the conservator properly exercised the power. The fact that a person knowingly deals with a conservator does not alone require the person to inquire into the existence of a power or the propriety of its exercise, except that restrictions on powers of conservators which are endorsed on letters as provided in section 30-2655 are effective as to third persons. A person is not bound to see to the proper application of estate assets paid or delivered to a conservator. The protection here expressed extends to instances in which some procedural irregularity or jurisdictional defect occurred in proceedings leading to the issuance of letters. The protection here expressed is not by substitution for that provided by comparable provisions of the laws relating to commercial transactions and laws simplifying transfers of securities by fiduciaries.

Source:Laws 1974, LB 354, § 270, UPC § 5-423.

30-2653. Powers of conservator in administration.

(a) A conservator has all of the powers conferred herein and any additional powers conferred by law on trustees in this state. In addition, a conservator of the estate of a minor, as to whom no one has parental rights, has the duties and powers of a guardian of a minor described in section 30-2613 until the minor attains his majority, but the parental rights so conferred on a conservator do not preclude appointment of a guardian as provided by part 2.

(b) A conservator has power without court authorization or confirmation, to invest and reinvest funds of the estate as would a trustee.

(c) A conservator, acting reasonably in efforts to accomplish the purpose for which he was appointed, may act without court authorization or confirmation to

(1) collect, hold and retain assets of the estate including land in another state, until, in his judgment, disposition of the assets should be made, and the assets may be retained even though they include an asset in which he is personally interested;

(2) receive additions to the estate;

(3) continue or participate in the operation of any business or other enterprise;

(4) acquire an undivided interest in an estate asset in which the conservator, in any fiduciary capacity, holds an undivided interest;

(5) invest and reinvest estate assets in accordance with subsection (b);

(6) deposit estate funds in a bank including a bank operated by the conservator;

(7) acquire or dispose of an estate asset including land in another state for cash or on credit, at public or private sale; and to manage, develop, improve, exchange, partition, change the character of, or abandon an estate asset;

(8) make ordinary or extraordinary repairs or alterations in buildings or other structures, to demolish any improvements, to raze existing or erect new party walls or buildings;

(9) subdivide, develop, or dedicate land to public use; to make or obtain the vacation of plats and adjust boundaries; to adjust differences in valuation on exchange or to partition by giving or receiving considerations; and to dedicate easements to public use without consideration;

(10) enter for any purpose into a lease as lessor or lessee with or without option to purchase or renew for a term within or extending beyond the term of the conservatorship;

(11) enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement;

(12) grant an option involving disposition of an estate asset, to take an option for the acquisition of any asset;

(13) vote a security, in person or by general or limited proxy;

(14) pay calls, assessments, and any other sums chargeable or accruing against or on account of securities;

(15) sell or exercise stock subscription or conversion rights; to consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise;

(16) hold a security in the name of a nominee or in other form without disclosure of the conservatorship so that title to the security may pass by delivery, but the conservator is liable for any act of the nominee in connection with the stock so held;

(17) insure the assets of the estate against damage or loss, and the conservator against liability with respect to third persons;

(18) borrow money to be repaid from estate assets or otherwise; to advance money for the protection of the estate or the protected person, and for all expenses, losses, and liability sustained in the administration of the estate or because of the holding or ownership of any estate assets, and the conservator has a lien on the estate as against the protected person for advances so made;

(19) pay or contest any claim; to settle a claim by or against the estate or the protected person, except a wrongful death, tort, or similar claim, by compromise, arbitration, or otherwise; and to release, in whole or in part, any claim belonging to the estate to the extent that the claim is uncollectible;

(20) pay taxes, assessments, compensation of the conservator, and other expenses incurred in the collection, care, administration and protection of the estate;

(21) allocate items of income or expense to either estate income or principal, as provided by law, including creation of reserves out of income for depreciation, obsolescence, or amortization, or for depletion in mineral or timber properties;

(22) pay any sum distributable to a protected person or his dependent without liability to the conservator, by paying the sum to the distributee or by paying the sum for the use of the distributee either to his guardian or, if none, to a relative or other person with custody of his person;

(23) employ persons, including attorneys, auditors, investment advisors, or agents, even though they are associated with the conservator, to advise or assist him in the performance of his administrative duties; to act upon their recommendation without independent investigation; and instead of acting personally, to employ one or more agents to perform any act of administration, whether or not discretionary;

(24) prosecute or defend actions, claims or proceedings in any jurisdiction for the protection of estate assets and of the conservator in the performance of his duties; and

(25) execute and deliver all instruments which will accomplish or facilitate the exercise of the powers vested in the conservator.

(d) A conservator with court approval may settle a wrongful death, tort, or similar claim by or against the estate or the protected person by compromise, arbitration, or otherwise, and release, in whole or in part, any claim belonging to the estate to the extent that the claim is uncollectible.

Source:Laws 1974, LB 354, § 271, UPC § 5-424.

Annotations

Partition, if well founded, is an absolute right, and a conservator need not obtain a license to so act. Cofer v. Perkins, 199 Neb. 327, 258 N.W.2d 807 (1977).

30-2654. Distributive duties and powers of conservator.

(a) A conservator may expend or distribute income or principal of the estate without court authorization or confirmation for the support, education, care or benefit of the protected person, except as provided in section 30-2613 if the protected person be a minor, and his dependents in accordance with the following principles:

(1) The conservator is to consider recommendations relating to the appropriate standard of support, education and benefit for the protected person made by a parent or guardian, if any. He may not be surcharged for sums paid to persons or organizations actually furnishing support, education or care to the protected person pursuant to the recommendations of a parent or guardian of the protected person unless he knows that the parent or guardian is deriving personal financial benefit therefrom, including relief from any personal duty of support, or unless the recommendations are clearly not in the best interests of the protected person.

(2) The conservator is to expend or distribute sums reasonably necessary for the support, education, care or benefit of the protected person with due regard to (i) the size of the estate, the probable duration of the conservatorship and the likelihood that the protected person, at some future time, may be fully able to manage his affairs and the estate which has been conserved for him; (ii) the accustomed standard of living of the protected person and members of his household; (iii) other funds or sources used for the support of the protected person.

(3) The conservator may expend funds of the estate for the support of persons legally dependent on the protected person and others who are members of the protected person's household who are unable to support themselves, and who are in need of support.

(4) Funds expended under this subsection may be paid by the conservator to any person, including the protected person, to reimburse for expenditures which the conservator might have made, or in advance for services to be rendered to the protected person when it is reasonable to expect that they will be performed and where advance payments are customary or reasonably necessary under the circumstances.

(b) If the estate is ample to provide for the purposes implicit in the distributions authorized by the preceding subsections, a conservator for a protected person other than a minor has power to make gifts to charity and other objects as the protected person might have been expected to make, in amounts which do not exceed in total for any year twenty percent of the income from the estate upon court approval.

(c) When a minor who has not been adjudged disabled under section 30-2630(2) attains his majority, his conservator, after meeting all prior claims and expenses of administration, shall pay over and distribute all funds and properties to the former protected person as soon as possible.

(d) When the conservator is satisfied that a protected person's disability (other than minority) has ceased, the conservator, after meeting all prior claims and expenses of administration, shall pay over and distribute all funds and properties to the former protected person as soon as possible.

(e) If a protected person dies, the conservator shall deliver to the court for safekeeping any will of the deceased protected person which may have come into his possession, inform the executor or a beneficiary named therein that he has done so, and retain the estate for delivery to a duly appointed personal representative of the decedent or other persons entitled thereto. If after forty days from the death of the protected person no other person has been appointed personal representative and no application or petition for appointment is before the court, the conservator may apply to exercise the powers and duties of a personal representative so that he may proceed to administer and distribute the decedent's estate without additional or further appointment. Upon application for an order granting the powers of a personal representative to a conservator, after notice to any person demanding notice under section 30-2413 and to any person nominated executor in any will of which the applicant is aware, the court may order the conferral of the power upon determining that there is no objection, and endorse the letters of the conservator to note that the formerly protected person is deceased and that the conservator has acquired all of the powers and duties of a personal representative. The making and entry of an order under this section shall have the effect of an order of appointment of a personal representative as provided in section 30-2421 and parts 6 to 10 of Article 24 except that estate in the name of the conservator, after administration, may be distributed to the decedent's successors without prior retransfer to the conservator as personal representative.

Source:Laws 1974, LB 354, § 272, UPC § 5-425.

Annotations

Under subsection (a)(2) of this section, a conservator is to expend or distribute sums reasonably necessary for the support, education, care, or benefit of the protected person. The cost, including a reasonable attorney fee, of initiating a good faith petition for the appointment of a conservator, where such appointment is determined to be in the best interests of the protected person, constitutes a necessary expenditure on behalf of the protected person and is compensable out of the conservatorship estate. In re Guardianship & Conservatorship of Donley, 262 Neb. 282, 631 N.W.2d 839 (2001).

30-2655. Limitation of powers of conservator.

(a) The court may, at the time of appointment or later, limit the powers of a conservator otherwise conferred by sections 30-2653 and 30-2654, or previously conferred by the court, and may at any time relieve the conservator of any limitation. If the court limits any power conferred on the conservator by section 30-2653 or 30-2654, the limitation shall be endorsed upon the conservator's letters of appointment.

(b) A conservator shall not change a protected person's place of abode to a location outside of the State of Nebraska without court permission.

Source:Laws 1974, LB 354, § 273, UPC § 5-426; Laws 2011, LB157, § 46.

30-2656. Preservation of estate plan.

In investing the estate, and in selecting assets of the estate for distribution under subsections (a) and (b) of section 30-2654, in utilizing powers of revocation or withdrawal available for the support of the protected person, and exercisable by the conservator or the court, the conservator and the court should take into account any known estate plan of the protected person, including his will, any revocable trust of which he is settlor, and any contract, transfer or joint ownership arrangement with provisions for payment or transfer of benefits or interests at his death to another or others which he may have originated. The conservator may examine the will of the protected person.

Source:Laws 1974, LB 354, § 274, UPC § 5-427.

30-2657. Claims against protected person; enforcement.

(a) A conservator must pay from the estate all just claims against the estate and against the protected person arising before or after the conservatorship upon their presentation and allowance. A claim may be presented by either of the following methods: (1) the claimant may deliver or mail to the conservator a written statement of the claim indicating its basis, the name and address of the claimant and the amount claimed; (2) the claimant may file a written statement of the claim, in the form prescribed by rule, with the clerk of the court and deliver or mail a copy of the statement to the conservator. A claim is deemed presented on the first to occur of receipt of the written statement of claim by the conservator, or the filing of the claim with the court. A presented claim is allowed if it is not disallowed by written statement mailed by the conservator to the claimant within sixty days after its presentation. The presentation of a claim tolls any statute of limitation relating to the claim until thirty days after its disallowance.

(b) A claimant whose claim has not been paid may petition the court for determination of his claim at any time before it is barred by the applicable statute of limitation and, upon due proof, procure an order for its allowance and payment from the estate. If a proceeding is pending against a protected person at the time of appointment of a conservator or is initiated against the protected person thereafter, the moving party must give notice of the proceeding to the conservator if the outcome is to constitute a claim against the estate.

(c) If it appears that the estate in conservatorship is likely to be exhausted before all existing claims are paid, preference is to be given to prior claims for the care, maintenance and education of the protected person or his dependents and existing claims for expenses of administration.

Source:Laws 1974, LB 354, § 275, UPC § 5-428.

30-2658. Individual liability of conservator.

(a) Unless otherwise provided in the contract, a conservator is not individually liable on a contract properly entered into in his fiduciary capacity in the course of administration of the estate unless he fails to reveal his representative capacity and identify the estate in the contract.

(b) The conservator is individually liable for obligations arising from ownership or control of property of the estate or for torts committed in the course of administration of the estate only if he is personally at fault.

(c) Claims based on contracts entered into by a conservator in his fiduciary capacity, on obligations arising from ownership or control of the estate, or on torts committed in the course of administration of the estate may be asserted against the estate by proceeding against the conservator in his fiduciary capacity, whether or not the conservator is individually liable therefor.

(d) Any question of liability between the estate and the conservator individually may be determined in a proceeding for accounting, surcharge, or indemnification, or other appropriate proceeding or action.

Source:Laws 1974, LB 354, § 276, UPC § 5-429.

30-2659. Termination of proceeding.

The protected person, his personal representative, the conservator or any other interested person may petition the court to terminate the conservatorship. A protected person seeking termination is entitled to the same rights and procedures as in an original proceeding for a protective order. The court, upon determining after notice and hearing that the minority or disability of the protected person has ceased, may terminate the conservatorship. Upon termination, title to assets of the estate passes to the former protected person or to his successors subject to provision in the order for expenses of administration or to conveyances from the conservator to the former protected person or his successors, to evidence the transfer.

Source:Laws 1974, LB 354, § 277, UPC § 5-430.

30-2660. Payment of debt and delivery of property to foreign conservator without local proceedings.

Any person indebted to a protected person, or having possession of property or of an instrument evidencing a debt, stock, or chose in action belonging to a protected person may pay or deliver to a conservator, guardian of the estate or other like fiduciary appointed by a court of the state of residence of the protected person, upon being presented with proof of his appointment and an affidavit made by him or on his behalf stating:

(1) that no protective proceeding relating to the protected person is pending in this state; and

(2) that the foreign conservator is entitled to payment or to receive delivery. If the person to whom the affidavit is presented is not aware of any protective proceeding pending in this state, payment or delivery in response to the demand and affidavit discharges the debtor or possessor.

Source:Laws 1974, LB 354, § 278, UPC § 5-431.

30-2661. Domiciliary foreign conservator may file; when; powers.

If no local conservator has been appointed and no petition in a protective proceeding is pending in this state, a domiciliary foreign conservator may file, with a court in this state in a county in which property belonging to the protected person is located, authenticated copies of his appointment and of any official bond he has given. Thereafter, he may exercise as to assets in this state all powers of a local conservator and may maintain actions and proceedings in this state subject to any conditions imposed upon nonresident parties generally.

Source:Laws 1974, LB 354, § 279.

30-2662. Repealed. Laws 1985, LB 292, § 15.

30-2663. Repealed. Laws 1985, LB 292, § 15.

30-2664. Repealed. Laws 2012, LB 1113, § 50.

30-2665. Repealed. Laws 2012, LB 1113, § 50.

30-2665.01. Repealed. Laws 2012, LB 1113, § 50.

30-2666. Repealed. Laws 2012, LB 1113, § 50.

30-2667. Repealed. Laws 2012, LB 1113, § 50.

30-2668. Repealed. Laws 2012, LB 1113, § 50.

30-2669. Repealed. Laws 2012, LB 1113, § 50.

30-2670. Repealed. Laws 2012, LB 1113, § 50.

30-2671. Repealed. Laws 2012, LB 1113, § 50.

30-2672. Repealed. Laws 2012, LB 1113, § 50.

30-2701. Repealed. Laws 1993, LB 250, § 34.

30-2702. Repealed. Laws 1993, LB 250, § 34.

30-2703. Repealed. Laws 1993, LB 250, § 34.

30-2704. Repealed. Laws 1993, LB 250, § 34.

30-2705. Repealed. Laws 1993, LB 250, § 34.

30-2706. Repealed. Laws 1993, LB 250, § 34.

30-2707. Repealed. Laws 1993, LB 250, § 34.

30-2708. Repealed. Laws 1993, LB 250, § 34.

30-2709. Repealed. Laws 1993, LB 250, § 34.

30-2710. Repealed. Laws 1993, LB 250, § 34.

30-2711. Repealed. Laws 1993, LB 250, § 34.

30-2712. Repealed. Laws 1993, LB 250, § 34.

30-2713. Repealed. Laws 1993, LB 250, § 34.

30-2714. Repealed. Laws 1993, LB 250, § 34.

30-2715. Nonprobate transfers on death.

(a) Subject to sections 30-2333 and 30-2354, a provision for a nonprobate transfer on death in an insurance policy, contract of employment, bond, mortgage, promissory note, certificated or uncertificated security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, marital property agreement, certificate of title, or other written instrument of a similar nature is nontestamentary. This subsection includes a written provision that:

(1) money or other benefits due to, controlled by, or owned by a decedent before death must be paid after the decedent's death to a person whom the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later;

(2) money due or to become due under the instrument ceases to be payable in the event of death of the promisee or the promisor before payment or demand; or

(3) any property controlled by or owned by the decedent before death which is the subject of the instrument passes to a person the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later.

(b) This section does not limit rights of creditors under other laws of this state.

Source:Laws 1993, LB 250, § 1; Laws 2010, LB712, § 24; Laws 2017, LB517, § 3.

Annotations

All personal accounts in Nebraska are subject to sections 30-2715 through 30-2746, concerning nonprobate transfer of accounts. Krzycki v. Krzycki, 284 Neb. 729, 824 N.W.2d 659 (2012).

If an instrument executed by the parties is intended by them as security for a debt, whatever may be its form or name, it is in equity a mortgage. Clark v. Clark, 275 Neb. 276, 746 N.W.2d 132 (2008).

30-2715.01. Vehicle or motorboat; transfer on death; certificate of title.

(1) Subject to section 30-2333, a person who owns any of the following for which a certificate of title may be issued pursuant to the Motor Vehicle Certificate of Title Act or the State Boat Act may use a transfer-on-death certificate of title as prescribed in this section: A vehicle or a motorboat. Such person may provide for the transfer of such property upon his or her death or the death of the last survivor of a joint tenancy with right of survivorship by including in the certificate of title a designation of beneficiary or beneficiaries to whom such property will be transferred on the death of the owner or the last survivor, subject to the rights of all lienholders, whether created before, simultaneously with, or after the creation of the transfer-on-death interest. A trust may be the beneficiary of a transfer-on-death certificate of title. The certificate of title shall include the name of the owner, the name of any tenant-in-common owner or the name of any joint-tenant-with-right-of-survivorship owner, followed in substance by the words transfer on death to (name of beneficiary or beneficiaries or name of trustee if a trust is to be the beneficiary). The abbreviation TOD may be used instead of the words transfer on death to.

(2) A transfer-on-death beneficiary shall have no interest in such property until the death of the owner or the last survivor of the joint-tenant-with-right-of-survivorship owners. A beneficiary designation may be changed at any time by the owner or by the joint-tenant-with-right-of-survivorship owners then surviving without the consent of any beneficiary by filing an application for a subsequent certificate of title.

(3) Ownership of property which has a designation of beneficiary as provided in subsection (1) of this section and for which an application for a subsequent certificate of title has not been filed shall vest in the designated beneficiary or beneficiaries on the death of the owner or the last of the joint-tenant-with-right-of-survivorship owners, subject to the rights of all lienholders.

Source:Laws 2010, LB712, § 23; Laws 2017, LB517, § 4; Laws 2022, LB750, § 1.

Cross References

Motor Vehicle Certificate of Title Act, see section 60-101.

State Boat Act, see section 37-1201.

30-2716. Definitions.

In sections 30-2716 to 30-2733:

(1) Account means a contract of deposit between a depositor and a financial institution, and includes a checking account, savings account, certificate of deposit, and share account.

(2) Agent means a person authorized to make account transactions for a party.

(3) Beneficiary means a person named as one to whom sums on deposit in an account are payable on request after death of all parties or for whom a party is named as trustee.

(4) Financial institution means an organization authorized to do business under state or federal laws relating to financial institutions, and includes a bank, trust company, savings bank, building and loan association, savings and loan company or association, and credit union.

(5) Multiple-party account means an account payable on request to one or more of two or more parties, whether or not a right of survivorship is mentioned.

(6) Party means a person who, by the terms of an account, has a present right, subject to request, to payment from the account other than as a beneficiary or agent.

(7) Payment of sums on deposit includes withdrawal, payment to a party or third person pursuant to check or other request, and a pledge of sums on deposit by a party, or a setoff, reduction, or other disposition of all or part of an account pursuant to a pledge.

(8) POD designation means the designation of (i) a beneficiary in an account payable on request to one party during the party's lifetime and on the party's death to one or more beneficiaries, or to one or more parties during their lifetimes and on death of all of them to one or more beneficiaries, or (ii) a beneficiary in an account in the name of one or more parties as trustee for one or more beneficiaries if the relationship is established by the terms of the account and there is no subject of the trust other than the sums on deposit in the account, whether or not payment to the beneficiary is mentioned.

(9) Receive, as it relates to notice to a financial institution, means receipt in the office or branch office of the financial institution in which the account is established, but if the terms of the account require notice at a particular place, in the place required.

(10) Request means a request for payment complying with all terms of the account, including special requirements concerning necessary signatures and regulations of the financial institution; but, for purposes of sections 30-2716 to 30-2733, if terms of the account condition payment on advance notice, a request for payment is treated as immediately effective and a notice of intent to withdraw is treated as a request for payment.

(11) Sums on deposit means the balance payable on an account, including interest and dividends earned, whether or not included in the current balance, and any deposit life insurance proceeds added to the account by reason of death of a party.

(12) Terms of the account include the deposit agreement and other terms and conditions, including the form, of the contract of deposit.

Source:Laws 1993, LB 250, § 2.

30-2717. Limitation on scope of sections.

Sections 30-2716 to 30-2733 do not apply to (i) an account established for a partnership, limited liability company, joint venture, or other organization for a business purpose, (ii) an account controlled by one or more persons as an agent or trustee for a corporation, unincorporated association, or charitable or civic organization, or (iii) a fiduciary or trust account in which the relationship is established other than by the terms of the account.

Source:Laws 1993, LB 250, § 3; Laws 1994, LB 884, § 56.

30-2718. Types of account; existing accounts.

(a) An account may be for a single party or multiple parties. A multiple-party account may be with or without a right of survivorship between the parties. Subject to subsection (c) of section 30-2723, either a single-party account or a multiple-party account may have a POD designation, an agency designation, or both.

(b) An account established before, on, or after September 9, 1993, whether in the form prescribed in section 30-2719 or in any other form, is either a single-party account or a multiple-party account, with or without right of survivorship, and with or without a POD designation or an agency designation, within the meaning of sections 30-2716 to 30-2733, and is governed by such sections.

Source:Laws 1993, LB 250, § 4.

30-2719. Forms.

(a) A contract of deposit that contains provisions in substantially the form provided in this subsection establishes the type of account provided, and the account is governed by the provisions of sections 30-2716 to 30-2733 applicable to an account of that type.

UNIFORM SINGLE- OR MULTIPLE-PARTY ACCOUNT FORM

PARTIES (Name One Or More Parties): .................

OWNERSHIP (Select One And Initial):

.....SINGLE-PARTY ACCOUNT

.....MULTIPLE-PARTY ACCOUNT

Parties own account in proportion to net contributions unless there is clear and convincing evidence of a different intent.

RIGHTS AT DEATH (Select One And Initial):

.....SINGLE-PARTY ACCOUNT

At death of party, ownership passes as part of party's estate.

.....SINGLE-PARTY ACCOUNT WITH POD (PAY ON DEATH) DESIGNATION

(Name One Or More Beneficiaries): ......................

At death of party, ownership passes to POD beneficiaries and is not part of party's estate.

.....MULTIPLE-PARTY ACCOUNT WITH RIGHT OF SURVIVORSHIP

At death of party, ownership passes to surviving parties.

.....MULTIPLE-PARTY ACCOUNT WITH RIGHT OF SURVIVORSHIP AND POD (PAY ON DEATH) DESIGNATION (Name One Or More Beneficiaries): ........................................

At death of last surviving party, ownership passes to POD beneficiaries and is not part of last surviving party's estate.

.....MULTIPLE-PARTY ACCOUNT WITHOUT RIGHT OF SURVIVORSHIP

At death of party, deceased party's ownership passes as part of deceased party's estate.

AGENCY (POWER OF ATTORNEY) DESIGNATION (Optional)

Agents may make account transactions for parties but have no ownership or rights at death unless named as POD beneficiaries. (To Add Agency Designation To Account, Name One Or More Agents): ...........................................................

(Select One And Initial):

.....AGENCY DESIGNATION SURVIVES DISABILITY OR INCAPACITY OF PARTIES

.....AGENCY DESIGNATION TERMINATES ON DISABILITY OR INCAPACITY OF PARTIES

(b) A contract of deposit that does not contain provisions in substantially the form provided in subsection (a) of this section is governed by the provisions of sections 30-2716 to 30-2733 applicable to the type of account that most nearly conforms to the depositor's intent.

Source:Laws 1993, LB 250, § 5.

Annotations

If a contract of deposit has been submitted into evidence and is substantially in the form provided by subsection (a) of this section, the contract must control and extrinsic evidence is irrelevant. But without the contract of deposit, a court cannot determine whether the contract is substantially in the form provided by subsection (a). Extrinsic evidence as to the depositor’s intent then becomes relevant in determining the ownership of the account and its proceeds. In re Estate of Greb, 288 Neb. 362, 848 N.W.2d 611 (2014).

When a contract of deposit does not contain provisions substantially in the form provided by subsection (a) of this section, the account is governed by the type of account that most nearly conforms to the depositor’s intent. In re Estate of Greb, 288 Neb. 362, 848 N.W.2d 611 (2014).

Where a contract of deposit does not follow the form provided by subsection (a) of this section and, thus, extrinsic evidence of the depositor’s intent is permitted, the party not in possession of the proceeds of a disputed account has the burden to move forward with evidence of the depositor’s intent. And in a dispute regarding the ownership of an account arising from the depositor’s death, such intent must be proved by a greater weight of the evidence. In re Estate of Greb, 288 Neb. 362, 848 N.W.2d 611 (2014).

Only if a contract of deposit does not conform to the statutory forms provided in subsection (a) of this section may evidence be presented on the issue of the intent of the depositor. Krzycki v. Krzycki, 284 Neb. 729, 824 N.W.2d 659 (2012).

This section creates no presumption in favor of a type of account and does not set any standards related to burdens of proof. Thus, in order to succeed in proving intent, pursuant to subsection (b) of this section, a movant must prove his or her case by a greater weight of the evidence only. Krzycki v. Krzycki, 284 Neb. 729, 824 N.W.2d 659 (2012).

This section provides that extrinsic evidence of the depositor's intent as to what type of account was created is relevant only when the contract of deposit in not in substantially the form provided in subsection (a) of this section. When the contract of deposit for an account is substantially in such form, the account will be treated as being the type of account designated on the form; if the contract of deposit is not in such form, then the depositor's intent is relevant to determine the type of account pursuant to subsection (b) of this section. Eggleston v. Kovacich, 274 Neb. 579, 742 N.W.2d 471 (2007).

30-2720. Designation of agent.

(a) By a writing signed by all parties, the parties may designate as agent of all parties on an account a person other than a party.

(b) Unless the terms of an agency designation provide that the authority of the agent terminates on disability or incapacity of a party, the agent's authority survives disability and incapacity. The agent may act for a disabled or incapacitated party until the authority of the agent is terminated.

Source:Laws 1993, LB 250, § 6.

30-2721. Applicability of sections.

The provisions of sections 30-2722 to 30-2726 concerning beneficial ownership as between parties or as between parties and beneficiaries apply only to controversies between those persons and their creditors and other successors, and do not apply to the rights of those persons to payment as determined by the terms of the account. Sections 30-2727 to 30-2733 govern the liability and setoff rights of financial institutions that make payments pursuant to such sections.

Source:Laws 1993, LB 250, § 7.

30-2722. Ownership during lifetime.

(a) In this section, net contribution of a party means the sum of all deposits to an account made by or for the party, less all payments from the account made to or for the party which have not been paid to or applied to the use of another party and a proportionate share of any charges deducted from the account, plus a proportionate share of any interest or dividends earned, whether or not included in the current balance. The term includes deposit life insurance proceeds added to the account by reason of death of the party whose net contribution is in question.

(b) During the lifetime of all parties, an account belongs to the parties in proportion to the net contribution of each to the sums on deposit, unless there is clear and convincing evidence of a different intent. As between parties married to each other, in the absence of proof otherwise, the net contribution of each is presumed to be an equal amount.

(c) A beneficiary in an account having a POD designation has no right to sums on deposit during the lifetime of any party.

(d) An agent in an account with an agency designation has no beneficial right to sums on deposit.

Source:Laws 1993, LB 250, § 8.

Annotations

A gift by the owner from a payable-on-death account does not create a right of reimbursement in the payable-on-death beneficiary. In re Trust of Rosenberg, 273 Neb. 59, 727 N.W.2d 430 (2007).

A certificate of deposit in the names of multiple parties is a type of joint account. Peterson v. Peterson, 230 Neb. 479, 432 N.W.2d 231 (1988).

In view of the language of this section, clear and convincing evidence is required to sustain a finding of undue influence in effecting a change in the ownership of a joint account. Peterson v. Peterson, 230 Neb. 479, 432 N.W.2d 231 (1988).

Like testamentary devices, under this section the creation of a joint account, without more, accomplishes no present transfer of title to property. Peterson v. Peterson, 230 Neb. 479, 432 N.W.2d 231 (1988).

A joint account, during the lifetime of the parties, belongs to the parties in proportion to the net contributions by each to the account, unless there is clear and convincing evidence of other intent. Craig v. Hastings State Bank, 221 Neb. 746, 380 N.W.2d 618 (1986).

The concepts of this section should inform the interpretation of section 30-2314 regarding the evidence necessary to establish the source of property owned by the surviving spouse. In re Estate of Ross, 19 Neb. App. 355, 810 N.W.2d 435 (2011).

The exclusive method for altering the form of an existing joint account is by a signed written notice given by a party to the financial institution during the life of the party. Linehan v. First Nat. Bank of Gordon, 7 Neb. App. 54, 579 N.W.2d 157 (1998).

Pursuant to subsection (b) of this section, the placing of nonmarital funds in joint tenancy by the spouse owning such funds does not create a presumption of a gift. LaBenz v. LaBenz, 6 Neb. App. 491, 575 N.W.2d 161 (1998).

30-2723. Rights at death.

(a) Except as otherwise provided in sections 30-2716 to 30-2733, on death of a party sums on deposit in a multiple-party account belong to the surviving party or parties. If two or more parties survive and one is the surviving spouse of the decedent, the amount to which the decedent, immediately before death, was beneficially entitled under section 30-2722 belongs to the surviving spouse. If two or more parties survive and none is the surviving spouse of the decedent, the amount to which the decedent, immediately before death, was beneficially entitled under such section belongs to the surviving parties in equal shares, and augments the proportion to which each survivor, immediately before the decedent's death, was beneficially entitled under section 30-2722, and the right of survivorship continues between the surviving parties.

(b) In an account with a POD designation:

(1) On death of one of two or more parties, the rights in sums on deposit are governed by subsection (a) of this section.

(2)(A) On death of the sole party or the last survivor of two or more parties, sums on deposit belong to the surviving beneficiary or beneficiaries. If two or more beneficiaries survive, sums on deposit belong to them in such proportions as specified in the POD designation or, if the POD designation does not specify different proportions, in equal and undivided shares, and there is no right of survivorship in the event of death of a beneficiary thereafter. If no beneficiary survives, sums on deposit belong to the estate of the last surviving party.

(B) Except as otherwise specified in the POD designation, if there are two or more beneficiaries, and if any beneficiary fails to survive the sole party or the last survivor of two or more parties, sums on deposit belong to the surviving beneficiaries in proportion to their respective interests as beneficiaries under subdivision (2)(A) of this subsection.

(c) Sums on deposit in a single-party account without a POD designation, or in a multiple-party account that, by the terms of the account, is without right of survivorship, are not affected by death of a party, but the amount to which the decedent, immediately before death, was beneficially entitled under section 30-2722 is transferred as part of the decedent's estate. A POD designation in a multiple-party account without right of survivorship is ineffective. For purposes of this section, designation of an account as a tenancy in common establishes that the account is without right of survivorship.

(d) The ownership right of a surviving party or beneficiary, or of the decedent's estate, in sums on deposit is subject to requests for payment made by a party before the party's death, whether paid by the financial institution before or after death, or unpaid. The surviving party or beneficiary, or the decedent's estate, is liable to the payee of an unpaid request for payment. The liability is limited to a proportionate share of the amount transferred under this section, to the extent necessary to discharge the request for payment.

Source:Laws 1993, LB 250, § 9; Laws 2019, LB55, § 3.

Annotations

Under subsection (b)(2) of this section, a payable-on-death beneficiary may be named in either an individual or a representative capacity. In re Trust of Rosenberg, 273 Neb. 59, 727 N.W.2d 430 (2007).

Pursuant to subsection (d), unpaid checks written on a party's account before the party's death must be paid by the beneficiary of the sums on deposit in the decedent's account. In re Estate of Lamplaugh, 270 Neb. 941, 708 N.W.2d 645 (2005).

To establish a valid joint account, it is not necessary the beneficiary or donee have knowledge of its creation, sign signature cards, or deposit or withdraw funds to the account. The intent of the depositor is the significant consideration in determining the effect of a joint account. In re Estate of Lienemann, 222 Neb. 169, 382 N.W.2d 595 (1986).

30-2724. Alteration of rights.

(a) Rights at death under section 30-2723 are determined by the type of account at the death of a party. The type of account may be altered by written notice given by a party to the financial institution to change the type of account or to stop or vary payment under the terms of the account. The notice must be signed by a party and received by the financial institution during the party's lifetime.

(b) A right of survivorship arising from the express terms of the account, section 30-2723, or a POD designation, may not be altered by will.

Source:Laws 1993, LB 250, § 10.

Annotations

The use of the word "may" in subsection (a) of this section grants a party the right to alter the type of account the party owns, but a party must give his or her financial institution signed written notice to exercise that right. Newman v. Thomas, 264 Neb. 801, 652 N.W.2d 565 (2002).

Under the current version of article 27 of the Nebraska Probate Code, signed written notice is required for transforming a non-pay-on-death, single-party account into a multiparty or pay-on-death account. Newman v. Thomas, 264 Neb. 801, 652 N.W.2d 565 (2002).

30-2725. Accounts and transfers nontestamentary.

Except as provided in sections 30-2313 to 30-2319 (elective share of surviving spouse) or as a consequence of, and to the extent directed by, section 30-2726, a transfer resulting from the application of section 30-2723 is effective by reason of the terms of the account involved and sections 30-2716 to 30-2733 and is not testamentary or subject to sections 30-2201 to 30-2512 (estate administration).

Source:Laws 1993, LB 250, § 11.

30-2726. Rights of creditors and others.

(a) If other assets of the estate are insufficient, a transfer resulting from a right of survivorship or POD designation under sections 30-2716 to 30-2733 is not effective against the estate of a deceased party to the extent needed to pay claims against the estate, statutory allowances to the surviving spouse and children, taxes, and expenses of administration.

(b) A surviving party or beneficiary who receives payment from an account after death of a party is liable to account to the personal representative of the decedent for a proportionate share of the amount received to which the decedent, immediately before death, was beneficially entitled under section 30-2722, to the extent necessary to discharge the amounts described in subsection (a) of this section remaining unpaid after application of the decedent's estate. A proceeding to assert the liability for claims against the estate and statutory allowances may not be commenced unless the personal representative has received a written demand by the surviving spouse, a creditor, a child, or a person acting for a child of the decedent. The proceeding must be commenced within one year after death of the decedent.

(c) A surviving party or beneficiary under sections 30-2716 to 30-2733 against whom a proceeding to account is brought may join as a party to the proceeding a surviving party or beneficiary of any other account of the decedent or a surviving owner or beneficiary under sections 30-2734 to 30-2745 of any securities or securities account of the decedent or proceeds thereof.

(d) Sums recovered by the personal representative must be administered as part of the decedent's estate. This section does not affect the protection from claims of the personal representative or estate of a deceased party provided in section 30-2732 for a financial institution that makes payment in accordance with the terms of the account.

Source:Laws 1993, LB 250, § 12.

Annotations

The purpose of this section is to alert the personal representative of the need to recover nonprobate assets and to trigger the personal representative's duty and authority to initiate proceedings to do so. In re Estate of Lorenz, 292 Neb. 543, 873 N.W.2d 396 (2016).

This section protects the beneficiaries of such nonprobate assets from incurring liability for claims made against the estate more than 1 year after the death of the decedent. In re Estate of Lorenz, 292 Neb. 543, 873 N.W.2d 396 (2016).

This section requires more than notice—it requires a written demand upon the personal representative before a proceeding to recover nonprobate assets may be commenced. In re Estate of Lorenz, 292 Neb. 543, 873 N.W.2d 396 (2016).

30-2727. Authority of financial institution.

A financial institution may enter into a contract of deposit for a multiple-party account to the same extent it may enter into a contract of deposit for a single-party account, and may provide for a POD designation and an agency designation in either a single-party account or a multiple-party account. A financial institution need not inquire as to the source of a deposit to an account or as to the proposed application of a payment from an account.

Source:Laws 1993, LB 250, § 13.

30-2728. Payment on multiple-party account.

A financial institution, on request, may pay sums on deposit in a multiple-party account to:

(1) one or more of the parties, whether or not another party is disabled, incapacitated, or deceased when payment is requested and whether or not the party making the request survives another party; or

(2) the personal representative, if any, or, if there is none, the heirs or devisees of a deceased party in accordance with sections 30-24,125 and 30-24,126 if proof of death is presented to the financial institution showing that the deceased party was the survivor of all other persons named on the account either as a party or beneficiary, unless the account is without right of survivorship under section 30-2723.

Source:Laws 1993, LB 250, § 14.

30-2729. Payment on POD designation.

A financial institution, on request, may pay sums on deposit in an account with a POD designation to:

(1) one or more of the parties, whether or not another party is disabled, incapacitated, or deceased when the payment is requested and whether or not a party survives another party;

(2) the beneficiary or beneficiaries, if proof of death is presented to the financial institution showing that the beneficiary or beneficiaries survived all persons named as parties; or

(3) the personal representative, if any, or, if there is none, the heirs or devisees of a deceased party, if proof of death is presented to the financial institution showing that the deceased party was the survivor of all other persons named on the account either as a party or beneficiary.

Source:Laws 1993, LB 250, § 15.

30-2730. Payment to designated agent.

Subject to the provisions of section 30-2732, a financial institution, on request of an agent under an agency designation for an account, may pay to the agent sums on deposit in the account, whether or not a party is disabled, incapacitated, or deceased when the request is made or received, and whether or not the authority of the agent terminates on the disability or incapacity of a party.

Source:Laws 1993, LB 250, § 16.

30-2731. Payment to minor.

If a financial institution is required or permitted to make payment pursuant to sections 30-2716 to 30-2733 to a minor designated as a beneficiary, payment may be made pursuant to the Nebraska Uniform Transfers to Minors Act or pursuant to any other laws of this state.

Source:Laws 1993, LB 250, § 17.

Cross References

Nebraska Uniform Transfers to Minors Act, see section 43-2701.

30-2732. Discharge.

(a) Payment made pursuant to sections 30-2716 to 30-2733 in accordance with the type of account discharges the financial institution from all claims for amounts so paid, whether or not the payment is consistent with the beneficial ownership of the account as between parties, beneficiaries, or their successors. Payment may be made whether or not a party, beneficiary, or agent is disabled, incapacitated, or deceased when payment is requested, received, or made.

(b) Protection under this section does not extend to payments made after a financial institution has received written notice from a party, or from the personal representative, surviving spouse, or heir or devisee of a deceased party, to the effect that payments in accordance with the terms of the account, including one having an agency designation, should not be permitted, and the financial institution has had a reasonable opportunity to act on it when the payment is made. Unless the notice is withdrawn by the person giving it, the successor of any deceased party must concur in a request for payment if the financial institution is to be protected under this section. Unless a financial institution has been served with process in an action or proceeding, no other notice or other information shown to have been available to the financial institution affects its right to protection under this section.

(c) A financial institution that receives written notice pursuant to this section or otherwise has reason to believe that a dispute exists as to the rights of the parties may refuse, without liability, to make payments in accordance with the terms of the account.

(d) Protection of a financial institution under this section does not affect the rights of parties in disputes between themselves or their successors concerning the beneficial ownership of sums on deposit in accounts or payments made from accounts.

Source:Laws 1993, LB 250, § 18.

30-2733. Setoff.

Without qualifying any other statutory right to setoff or lien and subject to any contractual provision, if a party is indebted to a financial institution, the financial institution has a right to setoff against the account. The amount of the account subject to setoff is the proportion to which the party is, or immediately before death was, beneficially entitled under section 30-2722 or, in the absence of proof of that proportion, an equal share with all parties.

Source:Laws 1993, LB 250, § 19.

Annotations

A bank has no right of setoff against the beneficial interest contributed by a nondebtor depositor. Where there is a joint account and proof of net contributions, the amount subject to setoff by the bank is determined by a party's net contribution. Craig v. Hastings State Bank, 221 Neb. 746, 380 N.W.2d 618 (1986).

If a person has the right to withdraw funds from a joint account and is indebted to the bank where the account is maintained, the bank has a right of setoff against such indebtedness. Craig v. Hastings State Bank, 221 Neb. 746, 380 N.W.2d 618 (1986).

This section is subject to agreements between a bank and its depositor. A bank may define by contract with its depositor the extent of its power of setoff. Uttecht v. Norwest Bank of Norfolk, 221 Neb. 222, 376 N.W.2d 11 (1985).

30-2734. Definitions.

In sections 30-2734 to 30-2745:

(1) Beneficiary form means a registration of a security which indicates the present owner of the security and the intention of the owner regarding the person who will become the owner of the security upon the death of the owner.

(2) Business means a corporation, partnership, limited liability company, limited partnership, limited liability partnership, or any other legal or commercial entity.

(3) Register, including its derivatives, means to issue a certificate showing the ownership of a certificated security or, in the case of an uncertificated security, to initiate or transfer an account showing ownership of securities.

(4) Registering entity means a person who originates or transfers a security title by registration, and includes a broker maintaining security accounts for customers and a transfer agent or other person acting for or as an issuer of securities.

(5) Security means a share, participation, or other interest in property, in a business, or in an obligation of an enterprise or other issuer, and includes a certificated security, an uncertificated security, and a security account.

(6) Security account means (i) a reinvestment account associated with a security, a securities account with a broker, a cash balance in a brokerage account, cash, interest, earnings, or dividends earned or declared on a security in an account, a reinvestment account, or a brokerage account, whether or not credited to the account before the owner's death, (ii) an investment management or custody account with a trust company or a trust department of a bank with trust powers, including the securities in the account, a cash balance in the account, and cash, cash equivalents, interest, earnings, or dividends earned or declared on a security in the account, whether or not credited to the account before the owner's death, or (iii) a cash balance or other property held for or due to the owner of a security as a replacement for or product of an account security, whether or not credited to the account before the owner's death.

(7) The words transfer on death or the abbreviation TOD and the words pay on death or the abbreviation POD are used without regard for whether the subject is a money claim against an insurer, such as its own note or bond for money loaned, or is a claim to securities evidenced by conventional title documentation.

Source:Laws 1993, LB 250, § 20; Laws 2004, LB 999, § 23; Laws 2017, LB138, § 1.

30-2735. Registration in beneficiary form; sole or joint tenancy ownership.

Only individuals whose registration of a security shows sole ownership by one individual or multiple ownership by two or more with right of survivorship, rather than as tenants in common, may obtain registration in beneficiary form. Multiple owners of a security registered in beneficiary form hold as joint tenants with right of survivorship, as tenants by the entireties, or as owners of community property held in survivorship form, and not as tenants in common.

Source:Laws 1993, LB 250, § 21.

30-2736. Registration in beneficiary form; applicable law.

A security may be registered in beneficiary form if the form is authorized by sections 30-2734 to 30-2745 or a similar statute of the state of organization of the issuer or registering entity, the location of the registering entity's principal office, the office of its transfer agent or its office making the registration, or by sections 30-2734 to 30-2745 or a similar statute of the law of the state listed as the owner's address at the time of registration. A registration governed by the law of a jurisdiction in which sections 30-2735 to 30-2745 or similar legislation is not in force or was not in force when a registration in beneficiary form was made is nevertheless presumed to be valid and authorized as a matter of contract law.

Source:Laws 1993, LB 250, § 22.

30-2737. Registration in beneficiary form; when.

A security, whether evidenced by certificate or account, is registered in beneficiary form when the registration includes a designation of a beneficiary to take the ownership at the death of the owner or the deaths of all multiple owners.

Source:Laws 1993, LB 250, § 23.

30-2738. Form of registration in beneficiary form.

Registration in beneficiary form may be shown by the words transfer on death or the abbreviation TOD, or by the words pay on death or the abbreviation POD, after the name of the registered owner and before the name of a beneficiary.

Source:Laws 1993, LB 250, § 24.

30-2739. Effect of registration in beneficiary form.

The designation of a TOD or POD beneficiary on a registration in beneficiary form has no effect on ownership until the owner's death. A registration of a security in beneficiary form may be canceled or changed at any time by the sole owner or all then surviving owners without the consent of the beneficiary.

Source:Laws 1993, LB 250, § 25.

30-2740. Ownership on death of owner.

On death of a sole owner or the last to die of all multiple owners, ownership of securities registered in beneficiary form passes to the beneficiary or beneficiaries who survive all owners. On proof of death of all owners and compliance with any applicable requirements of the registering entity, a security registered in beneficiary form may be reregistered in the name of the beneficiary or beneficiaries who survived the death of all owners. Until division of the security after the death of all owners, multiple beneficiaries surviving the death of all owners hold their interests as tenants in common. If no beneficiary survives the death of all owners, the security belongs to the estate of the deceased sole owner or the estate of the last to die of all multiple owners.

Source:Laws 1993, LB 250, § 26.

30-2741. Protection of registering entity.

(a) A registering entity is not required to offer or to accept a request for security registration in beneficiary form. If a registration in beneficiary form is offered by a registering entity, the owner requesting registration in beneficiary form assents to the protections given to the registering entity by sections 30-2734 to 30-2745.

(b) By accepting a request for registration of a security in beneficiary form, the registering entity agrees that the registration will be implemented on death of the deceased owner as provided in sections 30-2734 to 30-2745.

(c) A registering entity is discharged from all claims to a security by the estate, creditors, heirs, or devisees of a deceased owner if it registers a transfer of the security in accordance with section 30-2740 and does so in good faith reliance (i) on the registration, (ii) on sections 30-2734 to 30-2745, and (iii) on information provided to it by affidavit of the personal representative of the deceased owner, or by the surviving beneficiary or by the surviving beneficiary's representatives, or other information available to the registering entity. The protections of sections 30-2734 to 30-2745 do not extend to a reregistration or payment made after a registering entity has received written notice from any claimant to any interest in the security objecting to implementation of a registration in beneficiary form. No other notice or other information available to the registering entity affects its right to protection under sections 30-2734 to 30-2745.

(d) The protection provided by sections 30-2734 to 30-2745 to the registering entity of a security does not affect the rights of beneficiaries in disputes between themselves and other claimants to ownership of the security transferred or its value or proceeds.

Source:Laws 1993, LB 250, § 27.

30-2742. Nontestamentary transfer on death.

(a) Subject to section 30-2333, a transfer on death resulting from a registration in beneficiary form is effective by reason of the contract regarding the registration between the owner and the registering entity and sections 30-2734 to 30-2745 and is not testamentary.

(b) Sections 30-2734 to 30-2745 do not limit the rights of creditors of security owners against beneficiaries and other transferees under other laws of this state.

Source:Laws 1993, LB 250, § 28; Laws 2017, LB517, § 5.

30-2743. Transfer; when not effective.

(a) If other assets of the estate are insufficient, a transfer resulting from a right of survivorship, POD designation or TOD registration under sections 30-2734 to 30-2745 is not effective against the estate of a deceased owner to the extent needed to pay claims against the estate, statutory allowances to the surviving spouse and children, taxes, and expenses of administration.

(b) A surviving owner or beneficiary who receives registered or reregistered securities or securities accounts or proceeds thereof after the death of a party is liable to account to the personal representative of the decedent for a proportionate share of the amount received to which the decedent, immediately before death, was beneficially entitled, to the extent necessary to discharge the amounts described in subsection (a) of this section remaining unpaid after application of the decedent's estate. A proceeding to assert the liability for claims against the estate and statutory allowances may not be commenced unless the personal representative has received a written demand by the surviving spouse, a creditor, a child, or a person acting for a child of the decedent. The proceeding must be commenced within one year after the death of the decedent.

(c) A surviving owner or beneficiary against whom a proceeding to account is brought may join as a party to the proceeding a surviving owner or beneficiary under sections 30-2734 to 30-2745 of any other security or securities account of the decedent or proceeds thereof or a surviving party or beneficiary of any account under sections 30-2716 to 30-2733.

(d) Sums recovered by the personal representative must be administered as a part of the decedent's estate. This section does not affect the protection from claims of the personal representative or estate of a deceased owner provided in section 30-2741 for an issuer or registering entity that makes payment in accordance with the terms of the security registration.

Source:Laws 1993, LB 250, § 29.

30-2744. Terms, conditions, and forms for registration.

(a) A registering entity offering to accept registrations in beneficiary form may establish the terms and conditions under which it will receive requests (i) for registrations in beneficiary form, and (ii) for implementation of registrations in beneficiary form, including requests for cancellation of previously registered TOD beneficiary designations and requests for reregistration to effect a change of beneficiary. The terms and conditions so established may provide for proving death, avoiding or resolving any problems concerning fractional shares, designating primary and contingent beneficiaries, and substituting a named beneficiary's descendants to take in the place of the named beneficiary in the event of the beneficiary's death. Substitution may be indicated by appending to the name of the primary beneficiary the letters LDPS, standing for lineal descendants per stirpes. This designation substitutes a deceased beneficiary's descendants who survive the owner for a beneficiary who fails to so survive, the descendants to be identified and to share in accordance with the law of the beneficiary's domicile at the owner's death governing inheritance by descendants of an intestate. Other forms of identifying beneficiaries who are to take on one or more contingencies, and rules for providing proofs and assurances needed to satisfy reasonable concerns by registering entities regarding conditions and identities relevant to accurate implementation of registrations in beneficiary form, may be contained in a registering entity's terms and conditions.

(b) The following are illustrations of registrations in beneficiary form which a registering entity may authorize:

(1) Sole owner-sole beneficiary: John S Brown TOD (or POD) John S Brown Jr.

(2) Multiple owners-sole beneficiary: John S Brown Mary B Brown JT TEN TOD John S Brown Jr.

(3) Multiple owners-primary and secondary (substituted) beneficiaries: John S Brown Mary B Brown JT TEN TOD John S Brown Jr SUB BENE Peter Q Brown or John S Brown Mary B Brown JT TEN TOD John S Brown Jr LDPS.

Source:Laws 1993, LB 250, § 30.

30-2745. Application of sections.

Sections 30-2734 to 30-2745 apply to registrations of securities in beneficiary form made before, on, or after September 9, 1993, by decedents dying on or after such date.

Source:Laws 1993, LB 250, § 31.

30-2746. Sections, how construed.

Sections 30-2715 to 30-2746 shall be so construed as to effectuate their general purpose to make uniform the law of those states which enact them.

Source:Laws 1993, LB 250, § 32.

30-2801. Transferred to section 30-3816.

30-2802. Transferred to section 30-3817.

30-2803. Transferred to section 30-3819.

30-2804. Repealed. Laws 2003, LB 130, § 143.

30-2805. Transferred to section 30-3820.

30-2806. Repealed. Laws 2003, LB 130, § 143.

30-2807. Repealed. Laws 2003, LB 130, § 143.

30-2808. Repealed. Laws 2003, LB 130, § 143.

30-2809. Repealed. Laws 2003, LB 130, § 143.

30-2810. Repealed. Laws 2003, LB 130, § 143.

30-2811. Repealed. Laws 2003, LB 130, § 143.

30-2812. Repealed. Laws 2003, LB 130, § 143.

30-2813. Repealed. Laws 2003, LB 130, § 143.

30-2814. Repealed. Laws 2003, LB 130, § 143.

30-2815. Repealed. Laws 2003, LB 130, § 143.

30-2816. Repealed. Laws 2003, LB 130, § 143.

30-2817. Repealed. Laws 2003, LB 130, § 143.

30-2818. Repealed. Laws 2003, LB 130, § 143.

30-2819. Repealed. Laws 2003, LB 130, § 143.

30-2820. Repealed. Laws 2003, LB 130, § 143.

30-2821. Repealed. Laws 2003, LB 130, § 143.

30-2822. Repealed. Laws 2003, LB 130, § 143.

30-2823. Repealed. Laws 2003, LB 130, § 143.

30-2824. Repealed. Laws 2003, LB 130, § 143.

30-2825. Repealed. Laws 2003, LB 130, § 143.

30-2826. Repealed. Laws 2003, LB 130, § 143.

30-2901. Time for taking effect; provisions for transition.

(a) This code shall become operative on January 1, 1977.

(b) Except as provided elsewhere in this code, on the operative date of this code:

(1) the code applies to any wills of decedents dying thereafter;

(2) the code applies to any proceedings in court then pending or thereafter commenced regardless of the time of the death of decedent except to the extent that in the opinion of the court the former procedure should be made applicable in a particular case in the interest of justice or because of infeasibility of application of the procedure of this code;

(3) every personal representative including a person administering an estate of a minor or incompetent holding an appointment on that date, continues to hold the appointment but has only the powers conferred by this code and is subject to the duties imposed with respect to any act occurring or done thereafter;

(4) an act done before the operative date in any proceeding and any accrued right is not impaired by this code. If a right is acquired, extinguished or barred upon the expiration of a prescribed period of time which has commenced to run by the provisions of any statute before the operative date, the provisions shall remain in force with respect to that right.

Source:Laws 1974, LB 354, § 314, UPC § 8-101.

Annotations

The new code applies to any wills of decedents dying subsequent to the effective date of code. In re Estate of Florey, 212 Neb. 665, 325 N.W.2d 643 (1982).

This provision makes it clear that estates filed for probate after the effective date of the 1977 Nebraska Probate Code are governed by the provisions of the 1977 Nebraska Probate Code. Jacobson v. Nemesio, 204 Neb. 180, 281 N.W.2d 552 (1979).

Under this provision, the statute of limitations of the old probate code would have barred this action in Nebraska courts. Therefor, the action against the estate is also barred in federal court after the statute has run. Greyhound Lines v. Lexington State Bank & Trust, 604 F.2d 1151 (8th Cir. 1979).

30-2902. Terms, defined; Revisor of Statutes; duties.

Whenever in the statutes of Nebraska, unless the context otherwise requires:

(1) The term incompetent person or words of similar import occur they shall be taken to mean and apply to incapacitated person or incompetent person as used in this code; and

(2) The term guardian shall be taken to mean and include guardian or conservator as used in this code.

The Revisor of Statutes shall make corrections in the statutes necessitated by this section.

Source:Laws 1974, LB 354, § 315; Laws 1986, LB 1177, § 12.

30-3001. Decedent's estate; all or any part to state; notice to Attorney General.

Whenever, upon the filing of a petition for probate or administration or thereafter in the administration of any estate, it shall appear that all or any part of the estate is bequeathed or devised or will escheat to the State of Nebraska, the county judge shall, before the appointment of a personal representative, notify the Attorney General of Nebraska by mail of the pendency of such administration and of the probable interests of the state.

Source:Laws 1978, LB 863, § 1.

30-3002. Transferred to section 30-402.

30-3003. Transferred to section 30-403.

30-3004. Transferred to section 30-404.

30-3005. Transferred to section 30-406.

30-3101. Repealed. Laws 2001, LB 56, § 38.

30-3102. Repealed. Laws 2001, LB 56, § 38.

30-3103. Repealed. Laws 2001, LB 56, § 38.

30-3104. Repealed. Laws 2001, LB 56, § 38.

30-3105. Repealed. Laws 2001, LB 56, § 38.

30-3106. Repealed. Laws 2001, LB 56, § 38.

30-3107. Repealed. Laws 2001, LB 56, § 38.

30-3108. Repealed. Laws 2001, LB 56, § 38.

30-3109. Repealed. Laws 2001, LB 56, § 38.

30-3110. Repealed. Laws 2001, LB 56, § 38.

30-3111. Repealed. Laws 2001, LB 56, § 38.

30-3112. Repealed. Laws 2001, LB 56, § 38.

30-3113. Repealed. Laws 2001, LB 56, § 38.

30-3114. Repealed. Laws 2001, LB 56, § 38.

30-3115. Repealed. Laws 2001, LB 56, § 38.

30-3116. Act, how cited.

Sections 30-3116 to 30-3149 shall be known and may be cited as the Uniform Principal and Income Act.

Source:Laws 2001, LB 56, § 1; Laws 2005, LB 533, § 33; Laws 2009, LB80, § 1.

30-3117. Definitions.

For purposes of the Uniform Principal and Income Act:

(1) Accounting period means a calendar year unless another twelve-month period is selected by a fiduciary. The term includes a portion of a calendar year or other twelve-month period that begins when an income interest begins or ends when an income interest ends.

(2) Beneficiary includes, in the case of a decedent's estate, an heir, legatee, and devisee and, in the case of a trust, an income beneficiary and a remainder beneficiary.

(3) Fiduciary means a personal representative or a trustee. The term includes an executor, administrator, successor personal representative, special administrator, and a person performing substantially the same function.

(4) Income means money or property that a fiduciary receives as current return from a principal asset. The term includes a portion of receipts from a sale, exchange, or liquidation of a principal asset, to the extent provided in sections 30-3127 to 30-3141.

(5) Income beneficiary means a person to whom net income of a trust is or may be payable.

(6) Income interest means the right of an income beneficiary to receive all or part of net income, whether the terms of the trust require it to be distributed or authorize it to be distributed in the trustee's discretion.

(7) Mandatory income interest means the right of an income beneficiary to receive net income that the terms of the trust require the fiduciary to distribute.

(8) Net income means the total receipts allocated to income during an accounting period minus the disbursements made from income during the period, plus or minus transfers under the act to or from income during the period.

(9) Person means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; public corporation, or any other legal or commercial entity.

(10) Principal means property held in trust for distribution to a remainder beneficiary when the trust terminates.

(11) Qualified beneficiary has the same meaning as in section 30-3803.

(12) Remainder beneficiary means a person entitled to receive principal when an income interest ends.

(13) Terms of a trust means the manifestation of the intent of a settlor or decedent with respect to the trust, expressed in a manner that admits of its proof in a judicial proceeding, whether by written or spoken words or by conduct.

(14) Total return trust means a trust that is converted to a total return trust pursuant to section 30-3119.01 or a trust the terms of which manifest the settlor's intent that the trustee will administer the trust in accordance with subsection (4) of section 30-3119.01.

(15) Trustee includes an original, additional, or successor trustee, whether or not appointed or confirmed by a court.

Source:Laws 2001, LB 56, § 2; Laws 2005, LB 533, § 34.

30-3118. Fiduciary duties; general principles.

(a) In allocating receipts and disbursements to or between principal and income, and with respect to any matter within the scope of sections 30-3122 to 30-3126, a fiduciary:

(1) shall administer a trust or estate in accordance with the terms of the trust or the will, even if there is a different provision in the Uniform Principal and Income Act;

(2) may administer a trust or estate by the exercise of a discretionary power of administration given to the fiduciary by the terms of the trust or the will, even if the exercise of the power produces a result different from a result required or permitted by the act, and no inference that the fiduciary has abused its discretion arises solely from the fact that the fiduciary has exercised an express power given to the fiduciary by the terms of the trust or the will;

(3) shall administer a trust or estate in accordance with the act if the terms of the trust or the will do not contain a different provision or do not give the fiduciary a discretionary power of administration; and

(4) shall add a receipt or charge a disbursement to principal to the extent that the terms of the trust and the act do not provide a rule for allocating the receipt or disbursement to or between principal and income.

(b) In exercising the power to adjust under subsection (a) of section 30-3119 or a discretionary power of administration regarding a matter within the scope of the act, whether granted by the terms of a trust, a will, or the act, a fiduciary shall administer a trust or estate impartially, based on what is fair and reasonable to all of the beneficiaries, except to the extent that the terms of the trust or the will clearly manifest an intention that the fiduciary shall or may favor one or more of the beneficiaries. A determination in accordance with the act is presumed to be fair and reasonable to all of the beneficiaries.

Source:Laws 2001, LB 56, § 3.

30-3119. Trustee's power to adjust.

(a) A trustee may adjust between principal and income to the extent the trustee considers necessary if the trustee invests and manages trust assets as a prudent investor, the terms of the trust describe the amount that may or must be distributed to a beneficiary by referring to the trust's income, and the trustee determines, after applying the rules in subsection (a) of section 30-3118 and considering any power the trustee may have under the trust to invade principal or accumulate interest, that the trustee is unable to comply with subsection (b) of section 30-3118.

(b) In deciding whether and to what extent to exercise the power to make adjustments under subsection (a) of this section, a trustee may consider, but is not limited to, any of the following:

(1) the nature, purpose, and expected duration of the trust;

(2) the intent of the settlor including the settlor's probable intent, which is the settlor's dominant plan and purpose as they appear from the entirety of the trust when read and considered in light of the present facts and circumstances;

(3) the identity and circumstances of the beneficiaries;

(4) the needs for liquidity, regularity of income, and preservation and appreciation of capital;

(5) the assets held in the trust; the extent to which they consist of financial assets, interests in closely held enterprises, tangible and intangible personal property, or real property; the extent to which an asset is used by a beneficiary; and whether an asset was purchased by the trustee or received from the settlor;

(6) the net amount allocated to income under the other sections of the Uniform Principal and Income Act and the increase or decrease in the value of the principal assets, which the trustee may estimate as to assets for which market values are not readily available;

(7) whether and to what extent the terms of the trust give the trustee the power to invade principal or accumulate income or prohibit the trustee from invading principal or accumulating income, and the extent to which the trustee has exercised a power from time to time to invade principal or accumulate income;

(8) the actual and anticipated effect of economic conditions on principal and income and effects of inflation and deflation; and

(9) the anticipated tax consequences of an adjustment.

(1) that diminishes the income interest in a trust that requires all of the income to be paid at least annually to a spouse and for which an estate tax or gift tax marital deduction would be allowed, in whole or in part, if the trustee did not have the power to make the adjustment;

(2) that reduces the actuarial value of the income interest in a trust to which a person transfers property with the intent to qualify for a gift tax exclusion;

(3) that changes the amount payable to a beneficiary as a fixed annuity or a fixed fraction of the value of the trust assets;

(4) from any amount that is permanently set aside for charitable purposes under a will or the terms of a trust unless both income and principal are so set aside;

(5) if possessing or exercising the power to make an adjustment causes an individual to be treated as the owner of all or part of the trust for income tax purposes, and the individual would not be treated as the owner if the trustee did not possess the power to make an adjustment;

(6) if possessing or exercising the power to make an adjustment causes all or part of the trust assets to be included for estate tax purposes in the estate of an individual who has the power to remove a trustee or appoint a trustee, or both, and the assets would not be included in the estate of the individual if the trustee did not possess the power to make an adjustment; or

(7) if the trustee is a beneficiary of the trust.

(d) If subdivision (c)(5), (6), or (7) of this section applies (i) to a trustee and there is more than one trustee, a cotrustee to whom the provision does not apply may make the adjustment unless the exercise of the power by the remaining trustee or trustees is not permitted by the terms of the trust or (ii) to the trustee and there is not more than one trustee, or to all trustees, any trustee or beneficiary may petition the court pursuant to section 30-3812 for appointment of a cotrustee to whom the provision does not apply who may make the adjustment unless the exercise of the power by the appointed trustee is not permitted by the terms of the trust.

(e) A trustee may release the entire power conferred by subsection (a) of this section or may release only the power to adjust from income to principal or the power to adjust from principal to income if the trustee is uncertain about whether possessing or exercising the power will cause a result described in subdivisions (c)(1) through (6) of this section or if the trustee determines that possessing or exercising the power will or may deprive the trust of a tax benefit or impose a tax burden not described in subsection (c) of this section. The release may be permanent or for a specified period, including a period measured by the life of an individual.

(f) Terms of a trust that limit the power of a trustee to make an adjustment between principal and income do not affect the application of this section unless it is clear from the terms of the trust that the terms are intended to deny the trustee the power of adjustment conferred by subsection (a) of this section.

(g) Nothing in the Uniform Principal and Income Act shall give rise to liability for any exercise or failure to exercise a discretionary power under this section unless such exercise or failure to exercise constitutes an abuse of the trustee's discretion.

Source:Laws 2001, LB 56, § 4; Laws 2003, LB 130, § 133.

30-3119.01. Conversion to total return trust.

(1) Unless expressly prohibited by a trust, a trustee may release the power to adjust described in section 30-3119 and convert a trust to a total return trust as described in this section if all of the following apply:

(a) The trustee determines that the conversion will enable the trustee to better carry out the intent of the settlor and the purpose of the trust;

(b) The trustee sends written notice of the trustee's decision to convert the trust to a total return trust specifying a prospective effective date for the conversion which shall not be sooner than sixty days after the notice is sent and which shall include a copy of this section of law and shall specifically recite the time period within which a timely objection may be made. Such notice shall be sent to the qualified beneficiaries determined as of the date the notice is sent and assuming nonexercise of all powers of appointment;

(c) There are one or more legally competent beneficiaries who are currently eligible to receive income from the trust and one or more legally competent beneficiaries who would receive a distribution of principal if the trust were to terminate immediately before the notice is given; and

(d) No beneficiary has objected in writing to the conversion to a total return trust and delivered such objection to the trustee within sixty days after the notice was sent.

(2) Conversion to a total return trust or reconversion to an income trust may be made by agreement between the trustee and all qualified beneficiaries of the trust. The trustee and all qualified beneficiaries of the trust may also agree to modify the distribution percentage, except that the trustee and the qualified beneficiaries may not agree to a distribution percentage of less than three percent or greater than five percent. The agreement may include any other actions a court could properly order pursuant to subsection (7) of this section.

(3)(a) The trustee may, for any reason, elect to petition the court to order conversion to a total return trust including, without limitation, the reason that conversion under subsection (1) of this section is unavailable because:

(i) A beneficiary timely objects to the conversion to a total return trust;

(ii) There are no legally competent beneficiaries who are currently eligible to receive income from the trust; or

(iii) There are no legally competent beneficiaries who would receive a distribution of principal if the trust were to terminate immediately.

(b) A beneficiary may request the trustee to convert to a total return trust or adjust the distribution percentage pursuant to this subsection. If the trustee declines or fails to act within six months after receiving a written request from a beneficiary to do so, the beneficiary may petition the court to order the conversion or adjustment.

(c) The trustee may petition the court prospectively to reconvert from a total return trust or to adjust the distribution percentage if the trustee determines that the reconversion or adjustment will enable the trustee to better carry out the purposes of the trust. A beneficiary may request the trustee to petition the court prospectively to reconvert from a total return trust or adjust the distribution percentage. If the trustee declines or fails to act within six months after receiving a written request from a beneficiary to do so, the beneficiary may petition the court to order the reconversion or adjustment.

(d)(i) In a judicial proceeding instituted under this subsection, the trustee may present opinions and reasons concerning:

(A) The trustee's support for or opposition to a conversion to a total return trust, a reconversion from a total return trust, or an adjustment of the distribution percentage of a total return trust, including whether the trustee believes conversion, reconversion, or adjustment of the distribution percentage would enable the trustee to better carry out the purposes of the trust; and

(B) Any other matter relevant to the proposed conversion, reconversion, or adjustment of the distribution percentage.

(ii) A trustee's actions undertaken in accordance with this subsection shall not be deemed improper or inconsistent with the trustee's duty of impartiality unless the court finds from all the evidence that the trustee acted in bad faith.

(e) The court shall order conversion to a total return trust, reconversion prospectively from a total return trust, or adjustment of the distribution percentage of a total return trust if the court determines that the conversion, reconversion, or adjustment of the distribution percentage will enable the trustee to better carry out the purposes of the trust.

(f) If a conversion to a total return trust is made pursuant to a court order, the trustee may reconvert the trust to an income trust only:

(i) Pursuant to a subsequent court order; or

(ii) By filing with the court an agreement made pursuant to subsection (2) of this section to reconvert to an income trust.

(g) Upon a reconversion the power to adjust, as described in section 30-3119 and as it existed before the conversion, shall be revived.

(h) An action may be taken under this subsection no more frequently than every two years, unless a court for good cause orders otherwise.

(4)(a) During the time that a trust is a total return trust, the trustee shall administer the trust in accordance with the provisions of this subsection as follows, unless otherwise expressly provided by the terms of the trust:

(i) The trustee shall invest the trust assets seeking a total return without regard to whether the return is from income or appreciation of principal;

(ii) The trustee shall make income distributions in accordance with the trust subject to the provisions of this section;

(iii) The distribution percentage for any trust converted to a total return trust by a trustee in accordance with subsection (1) of this section shall be four percent, unless a different percentage has been determined in an agreement made pursuant to subsection (2) of this section or ordered by the court pursuant to subsection (3) of this section; and

(iv)(A) The trustee shall pay to a beneficiary in the case of an underpayment within a reasonable time and shall recover from a beneficiary in the case of an overpayment either by repayment by the beneficiary or by withholding from future distributions to the beneficiary:

(I) An amount equal to the difference between the amount properly payable and the amount actually paid; and

(II) Interest compounded annually at a rate per annum equal to the distribution percentage in the year or years during which the underpayment or overpayment occurs.

(B) For purposes of subdivision (4)(a)(iv) of this section, accrual of interest may not commence until the beginning of the trust year following the year in which the underpayment or overpayment occurs.

(b) For purposes of this subsection:

(i) Distribution amount means an annual amount equal to the distribution percentage multiplied by the average net fair market value of the trust's assets. The average net fair market value of the trust's assets shall be the net fair market value of the trust's assets averaged over the lesser of:

(A) The three preceding years; or

(B) The period during which the trust has been in existence; and

(ii) Income, as that term appears in the governing instrument, means the distribution amount.

(5) The trustee may determine any of the following matters in administering a total return trust as the trustee deems necessary or helpful for the proper functioning of the trust:

(a) The effective date of a conversion to a total return trust pursuant to subsection (1) of this section;

(b) The manner of prorating the distribution amount for a short year in which a beneficiary's interest commences or ceases, or, if the trust is a total return trust for only part of the year or the trustee may elect to treat the trust year as two separate years, the first of which ends at the close of the day on which the conversion or reconversion occurs, and the second of which ends at the close of the trust year;

(d) The manner of adjusting valuations and calculations of the distribution amount to account for other payments from, or contributions to, the trust;

(e) Whether to value the trust's assets annually or more frequently;

(f) Which valuation dates to use and how many valuation dates to use;

(g) Valuation decisions concerning any asset for which there is no readily available market value, including:

(i) How frequently to value such an asset;

(ii) Whether and how often to engage a professional appraiser to value such an asset; and

(iii) Whether to exclude the value of such an asset from the net fair market value of the trust's assets for purposes of determining the distribution amount. For purposes of this section, any such asset so excluded shall be referred to as an excluded asset and the trustee shall distribute any net income received from the excluded asset as provided for in the governing instrument, subject to the following principles:

(A) The trustee shall treat each asset for which there is no readily available market value as an excluded asset unless the trustee determines that there are compelling reasons not to do so and the trustee considers all relevant factors including the best interests of the beneficiaries;

(B) If tangible personal property or real property is possessed or occupied by a beneficiary, the trustee may not limit or restrict any right of the beneficiary to use the property in accordance with the governing instrument regardless of whether the trustee treats the property as an excluded asset; and

(C) By way of example and not by way of limitation, assets for which there is a readily available market value include cash and cash equivalents; stocks, bonds, and other securities and instruments for which there is an established market on a stock exchange, in an over-the-counter market, or otherwise; and any other property that can reasonably be expected to be sold within one week of the decision to sell without extraordinary efforts by the seller. By way of example and not by way of limitation, assets for which there is no readily available market value include stocks, bonds, and other securities and instruments for which there is no established market on a stock exchange, in an over-the-counter market, or otherwise; real property; tangible personal property; and artwork and other collectibles; and

(h) Any other administrative matter that the trustee determines is necessary or helpful for the proper functioning of the total return trust.

(6)(a) Expenses, taxes, and other charges that would otherwise be deducted from income if the trust was not a total return trust may not be deducted from the distribution amount.

(b) Unless otherwise provided by the governing instrument, the distribution amount each year shall be deemed to be paid from the following sources for that year in the following order:

(i) Net income determined as if the trust was not a total return trust;

(ii) Other ordinary income as determined for federal income tax purposes;

(iii) Net realized short-term capital gains as determined for federal income tax purposes;

(iv) Net realized long-term capital gains as determined for federal income tax purposes;

(v) Trust principal comprising assets for which there is a readily available market value; and

(vi) Other trust principal.

(7)(a) The court may order any of the following actions in a proceeding brought by a trustee or a beneficiary pursuant to subdivision (a), (b), or (c) of subsection (3) of this section:

(i) Select a distribution percentage other than four percent, except that the court may not order a distribution percentage of less than three percent or greater than five percent;

(ii) Average the valuation of the trust's net assets over a period other than three years;

(iii) Reconvert prospectively from a total return trust or adjust the distribution percentage of a total return trust;

(iv) Direct the distribution of net income, determined as if the trust were not a total return trust, in excess of the distribution amount as to any or all trust assets if the distribution is necessary to preserve a tax benefit; or

(v) Change or direct any administrative procedure as the court determines is necessary or helpful for the proper functioning of the total return trust.

(b) Nothing in this subsection shall be construed to limit the equitable jurisdiction of the court to grant other relief as the court deems proper.

(8)(a) In the case of a trust for which a marital deduction has been taken for federal tax purposes under section 2056 or section 2523 of the Internal Revenue Code of 1986, as amended, the spouse otherwise entitled to receive the net income of the trust shall have the right, by written instrument delivered to the trustee, to compel the reconversion during that spouse's lifetime of the trust from a total return trust to an income trust, notwithstanding anything in this section to the contrary.

(b) Conversion to a total return trust shall not affect any provision in the governing instrument:

(i) That directs or authorizes the trustee to distribute principal;

(ii) That directs or authorizes the trustee to distribute a fixed annuity or a fixed fraction of the value of trust assets;

(iii) That authorizes a beneficiary to withdraw a portion or all of the principal; or

(iv) That in any manner diminishes an amount permanently set aside for charitable purposes under the governing instrument unless both income and principal are set aside.

(9) If a particular trustee is also a beneficiary of the trust and conversion or failure to convert would enhance or diminish the beneficial interest of that trustee or, if possession or exercise of the conversion power by a particular trustee alone would cause any individual to be treated as owner of a part of the trust for federal income tax purposes or cause a part of the trust to be included in the gross estate of any individual for federal estate tax purposes, then that particular trustee may not participate as a trustee in the exercise of the conversion power, except that:

(a) The trustee may petition the court under subdivision (a) of subsection (3) of this section to order conversion in accordance with this section; and

(b) A cotrustee or cotrustees to whom this subsection does not apply may convert the trust to a total return trust in accordance with subsection (1) or (2) of this section.

(10) A trustee may irrevocably release the power granted by this section if the trustee reasonably believes the release is in the best interests of the trust and its beneficiaries. The release may be personal to the releasing trustee or it may apply generally to some or all subsequent trustees. The release may be for any specified period, including a period measured by the life of an individual.

(11)(a) A trustee who reasonably and in good faith takes any action or omits to take any action under this section is not liable to any person interested in the trust. A discretionary act or omission by a trustee under this section shall be presumed to be reasonable and undertaken in good faith unless the act or omission is determined by a court to have been an abuse of discretion.

(b) If a trustee reasonably and in good faith takes or omits to take any action under this section and a person interested in the trust opposes the act or omission, the person's exclusive remedy shall be to seek an order of the court directing the trustee to:

(i) Convert the trust to a total return trust;

(ii) Reconvert from a total return trust;

(iii) Change the distribution percentage; or

(iv) Order any administrative procedures the court determines are necessary or helpful for the proper functioning of the trust.

(c) A claim for relief under this subsection that is not barred by adjudication, consent, or limitation is nevertheless barred as to any beneficiary who has received a statement fully disclosing the matter unless a proceeding to assert the claim is commenced within six months after receipt of the statement. A beneficiary is deemed to have received a statement if it is received by the beneficiary or the beneficiary's representative in a manner described in section 30-2222 or 30-3121.

(12) A trustee has no duty to inform a beneficiary about the availability and provisions of this section. A trustee has no duty to review the trust to determine whether any action should be taken under this section unless the trustee is requested in writing by a qualified beneficiary to do so.

(13)(a) This section applies to trusts in existence on September 4, 2005, and to trusts created on or after such date.

(b) This section shall be construed to apply to the administration of a trust that is administered in Nebraska under Nebraska law or that is governed by Nebraska law with respect to the meaning and effect of its terms unless:

(i) The trust is a trust described in the Internal Revenue Code of 1986, as amended, 26 U.S.C. section 170(f)(2)(B), 664(d), 1361(d), 2702(a)(3), or 2702(b);

(ii) Conversion of a trust to a total return trust is clearly contrary to the manifestation of the settlor's intent as expressed in the trust instrument or as may be established by other evidence that would be admissible in a judicial proceeding; or

(iii) The terms of a trust in existence on September 4, 2005, incorporate provisions that operate as a total return trust. The trustee or a beneficiary of such a trust may proceed under section 30-3121 to adopt provisions in this section that do not contradict provisions in the governing instrument.

Source:Laws 2005, LB 533, § 35; Laws 2010, LB760, § 1.

30-3120. Judicial control of discretionary powers.

(a) A court shall not change a fiduciary's decision to exercise or not to exercise a discretionary power conferred by the Uniform Principal and Income Act unless it determines that the decision was an abuse of the fiduciary's discretion. A court shall not determine that a fiduciary abused its discretion merely because the court would have exercised the discretion in a different manner or would not have exercised the discretion.

(b) The decisions to which subsection (a) of this section applies include:

(1) A determination under subsection (a) of section 30-3119 of whether and to what extent an amount should be transferred from principal to income or from income to principal.

(2) A determination of the factors that are relevant to the trust and its beneficiaries, the extent to which they are relevant, and the weight, if any, to be given to the relevant factors, in deciding whether and to what extent to exercise the power conferred by subsection (a) of section 30-3119.

(c) If a court determines that a fiduciary has abused its discretion, the remedy is to restore the income and remainder beneficiaries to the positions they would have occupied if the fiduciary had not abused its discretion, according to the following rules:

(1) To the extent that the abuse of discretion has resulted in no distribution to a beneficiary or a distribution that is too small, the court shall require the fiduciary to distribute from the trust to the beneficiary an amount that the court determines will restore the beneficiary, in whole or in part, to his or her appropriate position.

(2) To the extent that the abuse of discretion has resulted in a distribution to a beneficiary that is too large, the court shall restore the beneficiaries, the trust, or both, in whole or in part, to their appropriate positions by requiring the fiduciary to withhold an amount from one or more future distributions to the beneficiary who received the distribution that was too large or requiring that beneficiary to return some or all of the distribution to the trust.

(3) To the extent that the court is unable, after applying subdivisions (1) and (2) of this subsection, to restore the beneficiaries, the trust, or both, to the positions they would have occupied if the fiduciary had not abused its discretion, the court may require the fiduciary to pay an appropriate amount from its own funds to one or more of the beneficiaries or the trust or both.

(d) Upon a petition by the fiduciary, the court having jurisdiction over the trust or estate shall determine whether a proposed exercise or nonexercise by the fiduciary of a discretionary power conferred by the act will result in an abuse of the fiduciary's discretion. If the petition describes the proposed exercise or nonexercise of the power and contains sufficient information to inform the beneficiaries of the reasons for the proposal, the facts upon which the fiduciary relies, and an explanation of how the income and remainder beneficiaries will be affected by the proposed exercise or nonexercise of the power, a beneficiary who challenges the proposed exercise or nonexercise has the burden of establishing that it will result in an abuse of discretion.

Source:Laws 2001, LB 56, § 5.

30-3121. Proposed action; notice; objections.

(a) A trustee may give a notice of proposed action regarding a matter governed by the Uniform Principal and Income Act as provided in this section. For purposes of this section, a proposed action includes a course of action and a decision not to take action.

(b) The trustee shall mail notice of the proposed action to all adult beneficiaries who are receiving, or are entitled to receive, income under the trust or to receive a distribution of principal if the trust were terminated at the time the notice is given.

(c) Notice of proposed action need not be given to any person who consents in writing to the proposed action. The consent may be executed at any time before or after the proposed action is taken.

(d) The notice of proposed action shall state that it is given pursuant to this section and shall state all of the following:

(1) the name and mailing address of the trustee;

(2) the name and telephone number of a person who may be contacted for additional information;

(3) a description of the action proposed to be taken and an explanation of the reasons for the action;

(4) the time within which objections to the proposed action may be made, which shall be at least thirty days from the mailing of the notice of proposed action; and

(5) the date on or after which the proposed action may be taken or is effective.

(e) A beneficiary may object to the proposed action by mailing a written objection to the trustee at the address stated in the notice of proposed action within the time period specified in the notice of proposed action.

(f) A trustee is not liable to a beneficiary for an action regarding a matter governed by the act if the trustee does not receive a written objection to the proposed action from the beneficiary within the applicable period and the other requirements of this section are satisfied. If no beneficiary entitled to notice objects under this section, the provisions of section 30-3120 shall not apply and the trustee is not liable to any current or future beneficiary with respect to the proposed action.

(g) If the trustee receives a written objection within the applicable period, either the trustee or a beneficiary may petition the court to have the proposed action taken as proposed, taken with modifications, or denied. In the proceeding, a beneficiary objecting to the proposed action has the burden of proving that the trustee's proposed action should not be taken. A beneficiary who has not objected is not estopped from opposing the proposed action in the proceeding. If the trustee decides not to take the proposed action, the trustee shall notify the beneficiaries of the decision not to take the action and the reasons for the decision, and the trustee's decision not to take the proposed action does not itself give rise to liability to any current or future beneficiary. A beneficiary may petition the court to have the action taken and has the burden of proving that it should be taken.

Source:Laws 2001, LB 56, § 6.

30-3122. Determination and distribution of net income.

After a decedent dies, in the case of an estate, or after an income interest in a trust ends, the following rules apply:

(1) A fiduciary of an estate or of a terminating income interest shall determine the amount of net income and net principal receipts received from property specifically given to a beneficiary under the rules in sections 30-3124 to 30-3147 which apply to trustees and the rules in subdivision (5) of this section. The fiduciary shall distribute the net income and net principal receipts to the beneficiary who is to receive the specific property.

(2) A fiduciary shall determine the remaining net income of a decedent's estate or a terminating income interest under the rules in sections 30-3124 to 30-3147 which apply to trustees and by:

(A) including in net income all income from property used to discharge liabilities;

(B) paying from income or principal, in the fiduciary's discretion, fees of attorneys, accountants, and fiduciaries; court costs and other expenses of administration; and interest on death taxes, but the fiduciary may pay those expenses from income of property passing to a trust for which the fiduciary claims an estate tax marital or charitable deduction only to the extent that the payment of those expenses from income will not cause the reduction or loss of the deduction; and

(C) paying from principal all other disbursements made or incurred in connection with the settlement of a decedent's estate or the winding up of a terminating income interest, including debts, funeral expenses, disposition of remains, family allowances, and death taxes and related penalties that are apportioned to the estate or terminating income interest by the will, the terms of the trust, or applicable law.

(3) A fiduciary shall distribute to a beneficiary who receives a pecuniary amount outright the interest or any other amount provided by the will, the terms of the trust, or applicable law from net income determined under subdivision (2) of this section or from principal to the extent that net income is insufficient. If a beneficiary is to receive a pecuniary amount outright from a trust after an income interest ends and no interest or other amount is provided for by the terms of the trust or applicable law, the fiduciary shall distribute the interest or other amount to which the beneficiary would be entitled under applicable law if the pecuniary amount were required to be paid under a will.

(4) A fiduciary shall distribute the net income remaining after distributions required by subdivision (3) of this section in the manner described in section 30-3123 to all other beneficiaries, including a beneficiary who receives a pecuniary amount in trust, even if the beneficiary holds an unqualified power to withdraw assets from the trust or other presently exercisable general power of appointment over the trust.

(5) A fiduciary may not reduce principal or income receipts from property described in subdivision (1) of this section because of a payment described in section 30-3142 or 30-3143 to the extent that the will, the terms of the trust, or applicable law requires the fiduciary to make the payment from assets other than the property or to the extent that the fiduciary recovers or expects to recover the payment from a third party. The net income and principal receipts from the property are determined by including all of the amounts the fiduciary receives or pays with respect to the property, whether those amounts accrued or became due before, on, or after the date of a decedent's death or an income interest's terminating event, and by making a reasonable provision for amounts that the fiduciary believes the estate or terminating income interest may become obligated to pay after the property is distributed.

Source:Laws 2001, LB 56, § 7.

30-3123. Distribution to residuary and remainder beneficiaries.

(a) Each beneficiary described in subdivision (4) of section 30-3122 is entitled to receive a portion of the net income equal to the beneficiary's fractional interest in undistributed principal assets, using values as of the distribution date. If a fiduciary makes more than one distribution of assets to beneficiaries to whom this section applies, each beneficiary, including one who does not receive part of the distribution, is entitled, as of each distribution date, to the net income the fiduciary has received after the date of death or terminating event or earlier distribution date but has not distributed as of the current distribution date.

(b) In determining a beneficiary's share of net income, the following rules apply:

(1) The beneficiary is entitled to receive a portion of the net income equal to the beneficiary's fractional interest in the undistributed principal assets immediately before the distribution date, including assets that later may be sold to meet principal obligations.

(2) The beneficiary's fractional interest in the undistributed principal assets must be calculated without regard to property specifically given to a beneficiary and property required to pay pecuniary amounts not in trust.

(3) The beneficiary's fractional interest in the undistributed principal assets must be calculated on the basis of the aggregate value of those assets as of the distribution date without reducing the value by any unpaid principal obligation.

(4) The distribution date for purposes of this section may be the date as of which the fiduciary calculates the value of the assets if that date is reasonably near the date on which assets are actually distributed.

(c) If a fiduciary does not distribute all of the collected but undistributed net income to each person as of a distribution date, the fiduciary shall maintain appropriate records showing the interest of each beneficiary in that net income.

(d) A fiduciary may apply the rules in this section, to the extent that the fiduciary considers it appropriate, to net gain or loss realized after the date of death or terminating event or earlier distribution date from the disposition of a principal asset if this section applies to the income from the asset.

Source:Laws 2001, LB 56, § 8.

30-3124. When right to income begins and ends.

(a) An income beneficiary is entitled to net income from the date on which the income interest begins. An income interest begins on the date specified in the terms of the trust or, if no date is specified, on the date an asset becomes subject to a trust or successive income interest.

(b) An asset becomes subject to a trust:

(1) on the date it is transferred to the trust in the case of an asset that is transferred to a trust during the transferor's life;

(2) on the date of a testator's death in the case of an asset that becomes subject to a trust by reason of a will, even if there is an intervening period of administration of the testator's estate; or

(3) on the date of an individual's death in the case of an asset that is transferred to a fiduciary by a third party because of the individual's death.

(c) An asset becomes subject to a successive income interest on the day after the preceding income interest ends, as determined under subsection (d) of this section, even if there is an intervening period of administration to wind up the preceding income interest.

(d) An income interest ends on the day before an income beneficiary dies or another terminating event occurs, or on the last day of a period during which there is no beneficiary to whom a trustee may distribute income.

Source:Laws 2001, LB 56, § 9.

30-3125. Apportionment of receipts and disbursements when decedent dies or income interest begins.

(a) A trustee shall allocate an income receipt or disbursement other than one to which subdivision (1) of section 30-3122 applies to principal if its due date occurs before a decedent dies in the case of an estate or before an income interest begins in the case of a trust or successive income interest.

(b) A trustee shall allocate an income receipt or disbursement to income if its due date occurs on or after the date on which a decedent dies or an income interest begins and it is a periodic due date. An income receipt or disbursement must be treated as accruing from day to day if its due date is not periodic or it has no due date. The portion of the receipt or disbursement accruing before the date on which a decedent dies or an income interest begins must be allocated to principal and the balance must be allocated to income.

(c) An item of income or an obligation is due on the date the payer is required to make a payment. If a payment date is not stated, there is no due date for the purposes of the Uniform Principal and Income Act. Distributions to shareholders or other owners from an entity to which section 30-3127 applies are deemed to be due on the date fixed by the entity for determining who is entitled to receive the distribution or, if no date is fixed, on the declaration date for the distribution. A due date is periodic for receipts or disbursements that must be paid at regular intervals under a lease or an obligation to pay interest or if an entity customarily makes distributions at regular intervals.

Source:Laws 2001, LB 56, § 10.

30-3126. Apportionment when income interest ends.

(a) In this section, undistributed income means net income received before the date on which an income interest ends. The term does not include an item of income or expense that is due or accrued or net income that has been added or is required to be added to principal under the terms of the trust.

(b) When a mandatory income interest ends, the trustee shall pay to a mandatory income beneficiary who survives that date, or the estate of a deceased mandatory income beneficiary whose death causes the interest to end, the beneficiary's share of the undistributed income that is not disposed of under the terms of the trust unless the beneficiary has an unqualified power to revoke more than five percent of the trust immediately before the income interest ends. In the latter case, the undistributed income from the portion of the trust that may be revoked must be added to principal.

(c) When a trustee's obligation to pay a fixed annuity or a fixed fraction of the value of the trust's assets ends, the trustee shall prorate the final payment if and to the extent required by applicable law to accomplish a purpose of the trust or its settlor relating to income, gift, estate, or other tax requirements.

Source:Laws 2001, LB 56, § 11.

30-3127. Character of receipts.

(a) In this section, entity means a corporation, partnership, limited liability company, regulated investment company, real estate investment trust, common trust fund, or any other organization in which a trustee has an interest other than a trust or estate to which section 30-3128 applies, a business or activity to which section 30-3129 applies, or an asset-backed security to which section 30-3141 applies.

(b) Except as otherwise provided in this section, a trustee shall allocate to income money received from an entity.

(1) property other than money;

(2) money received in one distribution or a series of related distributions in exchange for part or all of a trust's interest in the entity;

(3) money received in total or partial liquidation of the entity; and

(4) money received from an entity that is a regulated investment company or a real estate investment trust if the money distributed is a capital gain dividend for federal income tax purposes.

(d) Money is received in partial liquidation:

(1) to the extent that the entity, at or near the time of a distribution, indicates that it is a distribution in partial liquidation; or

(2) if the total amount of money and property received in a distribution or series of related distributions is greater than twenty percent of the entity's gross assets, as shown by the entity's year-end financial statements immediately preceding the initial receipt.

(e) Money is not received in partial liquidation, nor may it be taken into account under subdivision (d)(2) of this section, to the extent that it does not exceed the amount of income tax that a trustee or beneficiary must pay on taxable income of the entity that distributes the money.

(f) A trustee may rely upon a statement made by an entity about the source or character of a distribution if the statement is made at or near the time of distribution by the entity's board of directors or other person or group of persons authorized to exercise powers to pay money or transfer property comparable to those of a corporation's board of directors.

Source:Laws 2001, LB 56, § 12.

30-3128. Distribution from trust or estate.

A trustee shall allocate to income an amount received as a distribution of income from a trust or an estate in which the trust has an interest other than a purchased interest, and shall allocate to principal an amount received as a distribution of principal from such a trust or estate. If a trustee purchases an interest in a trust that is an investment entity, or a decedent or donor transfers an interest in such a trust to a trustee, section 30-3127 or 30-3141 applies to a receipt from the trust.

Source:Laws 2001, LB 56, § 13.

30-3129. Business and other activities conducted by trustee.

(a) If a trustee who conducts a business or other activity determines that it is in the best interest of all the beneficiaries to account separately for the business or activity instead of accounting for it as part of the trust's general accounting records, the trustee may maintain separate accounting records for its transactions, whether or not its assets are segregated from other trust assets.

(b) A trustee who accounts separately for a business or other activity may determine the extent to which its net cash receipts must be retained for working capital, the acquisition or replacement of fixed assets, and other reasonably foreseeable needs of the business or activity, and the extent to which the remaining net cash receipts are accounted for as principal or income in the trust's general accounting records. If a trustee sells assets of the business or other activity, other than in the ordinary course of the business or activity, the trustee shall account for the net amount received as principal in the trust's general accounting records to the extent the trustee determines that the amount received is no longer required in the conduct of the business.

(1) retail, manufacturing, service, and other traditional business activities;

(2) farming;

(3) raising and selling livestock and other animals;

(4) management of rental properties;

(5) extraction of minerals and other natural resources;

(6) timber operations; and

(7) activities to which section 30-3140 applies.

Source:Laws 2001, LB 56, § 14.

30-3130. Principal receipts.

A trustee shall allocate to principal:

(1) to the extent not allocated to income under the Uniform Principal and Income Act, assets received from a transferor during the transferor's lifetime, a decedent's estate, a trust with a terminating income interest, or a payer under a contract naming the trust or its trustee as beneficiary;

(2) money or other property received from the sale, exchange, liquidation, or change in form of a principal asset, including realized profit, subject to sections 30-3127 to 30-3141;

(3) amounts recovered from third parties to reimburse the trust because of disbursements described in subdivision (a)(7) of section 30-3143 or for other reasons to the extent not based on the loss of income;

(4) proceeds of property taken by eminent domain, but a separate award made for the loss of income with respect to an accounting period during which a current income beneficiary had a mandatory income interest is income;

(5) net income received in an accounting period during which there is no beneficiary to whom a trustee may or must distribute income; and

(6) other receipts as provided in sections 30-3134 to 30-3141.

Source:Laws 2001, LB 56, § 15.

30-3131. Rental property.

To the extent that a trustee accounts for receipts from rental property pursuant to this section, the trustee shall allocate to income an amount received as rent of real or personal property, including an amount received for cancellation or renewal of a lease. An amount received as a refundable deposit, including a security deposit or a deposit that is to be applied as rent for future periods, must be added to principal and held subject to the terms of the lease and is not available for distribution to a beneficiary until the trustee's contractual obligations have been satisfied with respect to that amount.

Source:Laws 2001, LB 56, § 16.

30-3132. Obligation to pay money.

(a) An amount received as interest, whether determined at a fixed, variable, or floating rate, on an obligation to pay money to the trustee, including an amount received as consideration for prepaying principal, must be allocated to income without any provision for amortization of premium.

(b) A trustee shall allocate to principal an amount received from the sale, redemption, or other disposition of an obligation to pay money to the trustee more than one year after it is purchased or acquired by the trustee, including an obligation whose purchase price or value when it is acquired is less than its value at maturity. If the obligation matures within one year after it is purchased or acquired by the trustee, an amount received in excess of its purchase price or its value when acquired by the trust must be allocated to income.

(c) This section does not apply to an obligation to which section 30-3135, 30-3136, 30-3137, 30-3138, 30-3140, or 30-3141 applies.

Source:Laws 2001, LB 56, § 17.

30-3133. Insurance policies and similar contracts.

(a) Except as otherwise provided in subsection (b) of this section, a trustee shall allocate to principal the proceeds of a life insurance policy or other contract in which the trust or its trustee is named as beneficiary, including a contract that insures the trust or its trustee against loss for damage to, destruction of, or loss of title to a trust asset. The trustee shall allocate dividends on an insurance policy to income if the premiums on the policy are paid from income, and to principal if the premiums are paid from principal.

(b) A trustee shall allocate to income proceeds of a contract that insures the trustee against loss of occupancy or other use by an income beneficiary, loss of income, or, subject to section 30-3129, loss of profits from a business.

Source:Laws 2001, LB 56, § 18.

30-3134. Insubstantial allocations not required.

If a trustee determines that an allocation between principal and income required by section 30-3135, 30-3136, 30-3137, 30-3138, or 30-3141 is insubstantial, the trustee may allocate the entire amount to principal unless one of the circumstances described in subsection (c) of section 30-3119 applies to the allocation. This power may be exercised by a cotrustee in the circumstances described in subsection (d) of section 30-3119 and may be released for the reasons and in the manner described in subsection (e) of section 30-3119. An allocation is presumed to be insubstantial if:

(1) the amount of the allocation would increase or decrease net income in an accounting period, as determined before the allocation, by less than ten percent; or

(2) the value of the asset producing the receipt for which the allocation would be made is less than ten percent of the total value of the trust's assets at the beginning of the accounting period.

Source:Laws 2001, LB 56, § 19.

30-3135. Deferred compensation, annuities, and similar payments; allocation to principal and income.

(a) In this section:

(1) Payment means a payment that a trustee may receive over a fixed number of years or during the life of one or more individuals because of services rendered or property transferred to the payer in exchange for future payments. The term includes a payment made in money or property from the payer's general assets or from a separate fund created by the payer. For purposes of subsections (d), (e), (f), and (g) of this section, the term also includes any payment from any separate fund, regardless of the reason for the payment; and

(2) Separate fund includes a private or commercial annuity, an individual retirement account, and a pension, profit-sharing, stock-bonus, or stock-ownership plan.

(b) To the extent that a payment is characterized as interest, a dividend, or a payment made in lieu of interest or a dividend, a trustee shall allocate the payment to income. The trustee shall allocate to principal the balance of the payment and any other payment received in the same accounting period that is not characterized as interest, a dividend, or an equivalent payment.

(c) If no part of a payment is characterized as interest, a dividend, or an equivalent payment, and all or part of the payment is required to be made, a trustee shall allocate to income ten percent of the part that is required to be made during the accounting period and the balance to principal. If no part of a payment is required to be made or the payment received is the entire amount to which the trustee is entitled, the trustee shall allocate the entire payment to principal. For purposes of this subsection, a payment is not required to be made to the extent that it is made because the trustee exercises a right of withdrawal.

(d) Except as otherwise provided in subsection (e) of this section, subsections (f) and (g) of this section apply, and subsections (b) and (c) of this section do not apply, in determining the allocation of a payment made from a separate fund to:

(1) a trust to which an election to qualify for a marital deduction under section 2056(b)(7) of the Internal Revenue Code of 1986, as amended, has been made; or

(2) a trust that qualifies for the marital deduction under section 2056(b)(5) of the Internal Revenue Code of 1986, as amended.

(e) Subsections (d), (f), and (g) of this section do not apply if and to the extent that the series of payments would, without the application of subsection (d) of this section, qualify for the marital deduction under section 2056(b)(7)(C) of the Internal Revenue Code of 1986, as amended.

(f) A trustee shall determine the internal income of each separate fund for the accounting period as if the separate fund were a trust subject to the Uniform Principal and Income Act. Upon request of the surviving spouse, the trustee shall demand that the person administering the separate fund distribute the internal income to the trust. The trustee shall allocate a payment from the separate fund to income to the extent of the internal income of the separate fund and distribute that amount to the surviving spouse. The trustee shall allocate the balance of the payment to principal. Upon request of the surviving spouse, the trustee shall allocate principal to income to the extent the internal income of the separate fund exceeds payments made from the separate fund to the trust during the accounting period.

(g) If a trustee cannot determine the internal income of a separate fund but can determine the value of the separate fund, the internal income of the separate fund is deemed to equal at least three percent of the fund's value, according to the most recent statement of value preceding the beginning of the accounting period. If the trustee can determine neither the internal income of the separate fund nor the fund's value, the internal income of the fund is deemed to equal the product of the interest rate and the present value of the expected future payments, as determined under section 7520 of the Internal Revenue Code of 1986, as amended, for the month preceding the accounting period for which the computation is made.

(h) This section does not apply to a payment to which section 30-3136 applies.

Source:Laws 2001, LB 56, § 20; Laws 2009, LB80, § 2.

30-3135.01. Trust; marital deduction; when provisions applicable.

Section 30-3135, as amended by Laws 2009, LB 80, applies to a trust described in subsection (d) of section 30-3135 on and after the following dates:

(1) If the trust is not funded as of February 27, 2009, the date of the decedent's death;

(2) If the trust is initially funded in the calendar year beginning January 1, 2009, the date of the decedent's death; or

(3) If the trust is not described in subdivision (1) or (2) of this section, January 1, 2009.

Source:Laws 2009, LB80, § 4.

30-3136. Liquidating asset.

(a) In this section, liquidating asset means an asset whose value will diminish or terminate because the asset is expected to produce receipts for a period of limited duration. The term includes a leasehold, patent, copyright, royalty right, and right to receive payments during a period of more than one year under an arrangement that does not provide for the payment of interest on the unpaid balance. The term does not include a payment subject to section 30-3135, resources subject to section 30-3137, timber subject to section 30-3138, an activity subject to section 30-3140, an asset subject to section 30-3141, or any asset for which the trustee establishes a reserve for depreciation under section 30-3144.

(b) A trustee shall allocate to income ten percent of the receipts from a liquidating asset and the balance to principal.

Source:Laws 2001, LB 56, § 21.

30-3137. Minerals, water, and other natural resources.

(a) To the extent that a trustee accounts for receipts from an interest in minerals or other natural resources pursuant to this section, the trustee shall allocate them as follows:

(1) If received as nominal delay rental or nominal annual rent on a lease, a receipt must be allocated to income.

(2) If received from a production payment, a receipt must be allocated to income if and to the extent that the agreement creating the production payment provides a factor for interest or its equivalent. The balance must be allocated to principal.

(3) If an amount received as a royalty, shut-in-well payment, take-or-pay payment, bonus, or delay rental is more than nominal, ninety percent must be allocated to principal and the balance to income.

(4) If an amount is received from a working interest or any other interest not provided for in subdivision (1), (2), or (3) of this subsection, ninety percent of the net amount received must be allocated to principal and the balance to income.

(b) An amount received on account of an interest in water that is renewable must be allocated to income. If the water is not renewable, ninety percent of the amount must be allocated to principal and the balance to income.

(c) The Uniform Principal and Income Act applies whether or not a decedent or donor was extracting minerals, water, or other natural resources before the interest became subject to the trust.

(d) If a trust owns an interest in minerals, water, or other natural resources on September 1, 2001, the trustee may allocate receipts from the interest as provided in the act or in the manner used by the trustee before September 1, 2001. If the trust acquires an interest in minerals, water, or other natural resources after September 1, 2001, the trustee shall allocate receipts from the interest as provided in the act.

Source:Laws 2001, LB 56, § 22.

30-3138. Timber.

(a) To the extent that a trustee accounts for receipts from the sale of timber and related products pursuant to this section, the trustee shall allocate the net receipts:

(1) to income to the extent that the amount of timber removed from the land does not exceed the rate of growth of the timber during the accounting periods in which a beneficiary has a mandatory income interest;

(2) to principal to the extent that the amount of timber removed from the land exceeds the rate of growth of the timber or the net receipts are from the sale of standing timber;

(3) to or between income and principal if the net receipts are from the lease of timberland or from a contract to cut timber from land owned by a trust, by determining the amount of timber removed from the land under the lease or contract and applying the rules in subdivisions (1) and (2) of this subsection; or

(4) to principal to the extent that advance payments, bonuses, and other payments are not allocated pursuant to subdivision (1), (2), or (3) of this subsection.

(b) In determining net receipts to be allocated pursuant to subsection (a) of this section, a trustee shall deduct and transfer to principal a reasonable amount for depletion.

(c) The Uniform Principal and Income Act applies whether or not a decedent or transferor was harvesting timber from the property before it became subject to the trust.

(d) If a trust owns an interest in timberland on September 1, 2001, the trustee may allocate net receipts from the sale of timber and related products as provided in the act or in the manner used by the trustee before September 1, 2001. If the trust acquires an interest in timberland after September 1, 2001, the trustee shall allocate net receipts from the sale of timber and related products as provided in the act.

Source:Laws 2001, LB 56, § 23.

30-3139. Property not productive of income.

(a) If a marital deduction is allowed for all or part of a trust whose assets consist substantially of property that does not provide the spouse with sufficient income from or use of the trust assets, and if the amounts that the trustee transfers from principal to income under section 30-3119 and distributes to the spouse from principal pursuant to the terms of the trust are insufficient to provide the spouse with the beneficial enjoyment required to obtain the marital deduction, the spouse may require the trustee to make property productive of income, convert property within a reasonable time, or exercise the power conferred by subsection (a) of section 30-3119. The trustee may decide which action or combination of actions to take.

(b) In cases not governed by subsection (a) of this section, proceeds from the sale or other disposition of an asset are principal without regard to the amount of income the asset produces during any accounting period.

Source:Laws 2001, LB 56, § 24.

30-3140. Derivatives and options.

(a) In this section, derivative means a contract or financial instrument or a combination of contracts and financial instruments which gives a trust the right or obligation to participate in some or all changes in the price of a tangible or intangible asset or group of assets, or changes in a rate, an index of prices or rates, or other market indicator for an asset or a group of assets.

(b) To the extent that a trustee does not account under section 30-3129 for transactions in derivatives, the trustee shall allocate to principal receipts from and disbursements made in connection with those transactions.

(c) If a trustee grants an option to buy property from the trust, whether or not the trust owns the property when the option is granted, grants an option that permits another person to sell property to the trust, or acquires an option to buy property for the trust or an option to sell an asset owned by the trust, and the trustee or other owner of the asset is required to deliver the asset if the option is exercised, an amount received for granting the option must be allocated to principal. An amount paid to acquire the option must be paid from principal. A gain or loss realized upon the exercise of an option, including an option granted to a settlor of the trust for services rendered, must be allocated to principal.

Source:Laws 2001, LB 56, § 25.

30-3141. Asset-backed securities.

(a) In this section, asset-backed security means an asset whose value is based upon the right it gives the owner to receive distributions from the proceeds of financial assets that provide collateral for the security. The term includes an asset that gives the owner the right to receive from the collateral financial assets only the interest or other current return or only the proceeds other than interest or current return. The term does not include an asset to which section 30-3127 or 30-3135 applies.

(b) If a trust receives a payment from interest or other current return and from other proceeds of the collateral financial assets, the trustee shall allocate to income the portion of the payment which the payer identifies as being from interest or other current return and shall allocate the balance of the payment to principal.

(c) If a trust receives one or more payments in exchange for the trust's entire interest in an asset-backed security in one accounting period, the trustee shall allocate the payments to principal. If a payment is one of a series of payments that will result in the liquidation of the trust's interest in the security over more than one accounting period, the trustee shall allocate ten percent of the payment to income and the balance to principal.

Source:Laws 2001, LB 56, § 26.

30-3142. Disbursements from income.

A trustee shall make the following disbursements from income to the extent that they are not disbursements to which subdivision (2)(B) or (C) of section 30-3122 applies:

(1) one-half of the regular compensation of the trustee and of any person providing investment advisory or custodial services to the trustee;

(2) one-half of all expenses for accountings, judicial proceedings, or other matters that involve both the income and remainder interests;

(3) all of the other ordinary expenses incurred in connection with the administration, management, or preservation of trust property and the distribution of income, including interest, ordinary repairs, regularly recurring taxes assessed against principal, and expenses of a proceeding or other matter that concerns primarily the income interest; and

(4) recurring premiums on insurance covering the loss of a principal asset or the loss of income from or use of the asset.

Source:Laws 2001, LB 56, § 27.

30-3143. Disbursements from principal.

(a) A trustee shall make the following disbursements from principal:

(1) the remaining one-half of the disbursements described in subdivisions (1) and (2) of section 30-3142;

(2) all of the trustee's compensation calculated on principal as a fee for acceptance, distribution, or termination, and disbursements made to prepare property for sale;

(3) payments on the principal of a trust debt;

(4) expenses of a proceeding that concerns primarily principal, including a proceeding to construe the trust or to protect the trust or its property;

(5) premiums paid on a policy of insurance not described in subdivision (4) of section 30-3142 of which the trust is the owner and beneficiary;

(6) estate, inheritance, and other transfer taxes, including penalties, apportioned to the trust; and

(7) disbursements related to environmental matters, including reclamation, assessing environmental conditions, remedying and removing environmental contamination, monitoring remedial activities and the release of substances, preventing future releases of substances, collecting amounts from persons liable or potentially liable for the costs of those activities, penalties imposed under environmental laws or regulations and other payments made to comply with those laws or regulations, statutory or common-law claims by third parties, and defending claims based on environmental matters.

(b) If a principal asset is encumbered with an obligation that requires income from that asset to be paid directly to the creditor, the trustee shall transfer from principal to income an amount equal to the income paid to the creditor in reduction of the principal balance of the obligation.

Source:Laws 2001, LB 56, § 28.

30-3144. Transfers from income to principal for depreciation.

(a) In this section, depreciation means a reduction in value due to wear, tear, decay, corrosion, or gradual obsolescence of a fixed asset having a useful life of more than one year.

(b) A trustee may transfer to principal a reasonable amount of the net cash receipts from a principal asset that is subject to depreciation, but may not transfer any amount for depreciation:

(1) of that portion of real property used or available for use by a beneficiary as a residence or of tangible personal property held or made available for the personal use or enjoyment of a beneficiary;

(2) during the administration of a decedent's estate; or

(3) under this section if the trustee is accounting under section 30-3129 for the business or activity in which the asset is used.

Source:Laws 2001, LB 56, § 29.

30-3145. Transfers from income to reimburse principal.

(a) If a trustee makes or expects to make a principal disbursement described in this section, the trustee may transfer an appropriate amount from income to principal in one or more accounting periods to reimburse principal or to provide a reserve for future principal disbursements.

(b) Principal disbursements to which subsection (a) of this section applies include the following, but only to the extent that the trustee has not been and does not expect to be reimbursed by a third party:

(1) an amount chargeable to income but paid from principal because it is unusually large, including extraordinary repairs;

(2) a capital improvement to a principal asset, whether in the form of changes to an existing asset or the construction of a new asset, including special assessments;

(3) disbursements made to prepare property for rental, including tenant allowances, leasehold improvements, and broker's commissions;

(4) periodic payments on an obligation secured by a principal asset to the extent that the amount transferred from income to principal for depreciation is less than the periodic payments; and

(5) disbursements described in subdivision (a)(7) of section 30-3143.

(c) If the asset whose ownership gives rise to the disbursements becomes subject to a successive income interest after an income interest ends, a trustee may continue to transfer amounts from income to principal as provided in subsection (a) of this section.

Source:Laws 2001, LB 56, § 30.

30-3146. Income taxes.

(a) A tax required to be paid by a trustee based on receipts allocated to income must be paid from income.

(b) A tax required to be paid by a trustee based on receipts allocated to principal must be paid from principal, even if the tax is called an income tax by the taxing authority.

(1) from income to the extent that receipts from the entity are allocated to income;

(2) from principal to the extent that receipts from the entity are allocated only to principal;

(3) proportionately from principal and income to the extent that receipts from the entity are allocated to both income and principal; and

(4) from principal to the extent that the tax exceeds the total receipts from the entity.

(d) After applying subsections (a) through (c) of this section, the trustee shall adjust income or principal receipts to the extent that the trust's taxes are reduced because the trust receives a deduction for payments made to a beneficiary.

Source:Laws 2001, LB 56, § 31; Laws 2009, LB80, § 3.

30-3147. Adjustments between principal and income because of taxes.

(a) A fiduciary may make adjustments between principal and income to offset the shifting of economic interests or tax benefits between income beneficiaries and remainder beneficiaries which arise from:

(1) elections and decisions, other than those described in subsection (b) of this section, that the fiduciary makes from time to time regarding tax matters;

(2) an income tax or any other tax that is imposed upon the fiduciary or a beneficiary as a result of a transaction involving or a distribution from the estate or trust; or

(3) the ownership by an estate or trust of an interest in an entity whose taxable income, whether or not distributed, is includable in the taxable income of the estate, trust, or a beneficiary.

(b) If the amount of an estate tax marital deduction or charitable contribution deduction is reduced because a fiduciary deducts an amount paid from principal for income tax purposes instead of deducting it for estate tax purposes, and as a result estate taxes paid from principal are increased and income taxes paid by an estate, trust, or beneficiary are decreased, each estate, trust, or beneficiary that benefits from the decrease in income tax shall reimburse the principal from which the increase in estate tax is paid. The total reimbursement must equal the increase in the estate tax to the extent that the principal used to pay the increase would have qualified for a marital deduction or charitable contribution deduction but for the payment. The proportionate share of the reimbursement for each estate, trust, or beneficiary whose income taxes are reduced must be the same as its proportionate share of the total decrease in income tax. An estate or trust shall reimburse principal from income.

Source:Laws 2001, LB 56, § 32.

30-3148. Uniformity of application and construction.

In applying and construing the Uniform Principal and Income Act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

Source:Laws 2001, LB 56, § 33.

30-3149. Application of act to existing trusts and estates.

The Uniform Principal and Income Act applies to every trust or decedent's estate existing on September 1, 2001, except as otherwise expressly provided in the will or terms of the trust or in the act.

Source:Laws 2001, LB 56, § 34.

30-3201. Investment of funds; prudent investor rule.

Except as may be otherwise provided in section 8-318, or otherwise provided by law or by the instrument creating the fiduciary relationship involved, each and every trustee, guardian, conservator, executor, or administrator, whether appointed by the courts of this state, or acting under authority other than a court appointment, having funds for investment shall comply with the prudent investor rule set forth in sections 30-3883 to 30-3889.

Source:Laws 1933, c. 64, § 1, p. 299; Laws 1935, c. 68, § 1, p. 245; Laws 1937, c. 60, § 1, p. 237; C.S.Supp.,1941, § 27-601; Laws 1943, c. 66, § 1, p. 242; R.S.1943, § 24-601; Laws 1945, c. 56, § 1, p. 243; Laws 1947, c. 79, § 1, p. 248; Laws 1953, c. 67, § 2, p. 213; Laws 1955, c. 82, § 1, p. 238; Laws 1959, c. 263, § 9, p. 931; Laws 1963, c. 134, § 1, p. 505; Laws 1965, c. 113, § 1, p. 438; Laws 1975, LB 481, § 8; R.S.1943, (1985), § 24-601; Laws 1997, LB 54, § 18; Laws 2003, LB 130, § 134.

Annotations

Inherent jurisdiction of district court over trusts conferred by the Constitution is not affected by this section. John A. Creighton Home v. Waltman, 140 Neb. 3, 299 N.W. 261 (1941).

30-3202. Sections; applicability.

Sections 30-3201 and 30-3207 shall apply to fiduciary relationships now in existence or hereafter established.

Source:Laws 1953, c. 67, § 3, p. 218; R.S.1943, (1985), § 24-601.02.

30-3203. Section; applicability.

Section 30-3201 shall apply to fiduciary relationships whether now in existence or established after November 18, 1965.

Source:Laws 1965, c. 113, § 2, p. 438; R.S.1943, (1985), § 24-601.03.

30-3204. Securities received by fiduciary; investments authorized.

Trust funds received by administrators, executors, trustees or guardians may be kept invested in the securities received by them unless it shall be otherwise ordered by the court of appointment or unless the instrument under which such trust was created shall direct that a change of investments shall be made, and they shall not be liable for any loss that may occur through the depreciation of such securities. The provisions of this section and section 30-3201 shall in no manner affect the right of fiduciaries to continue the investments existing before August 9, 1933, that do not conform to the standards contained in said sections, but any investments so held that do conform, or subsequently acquired under the provisions of said sections may be continued notwithstanding changes in conditions of the security or the obligor that would render such securities ineligible for further investments.

Source:Laws 1933, c. 64, § 2, p. 300; C.S.Supp.,1941, § 27-602; R.S.1943, § 24-602; R.S.1943, (1985), § 24-602.

Annotations

This section is not applicable where the will directs that securities of deceased be converted into cash. Bates v. Scottsbluff Nat. Bank, 190 Neb. 456, 209 N.W.2d 165 (1973).

30-3205. Fiduciary; interests in private investment fund, investment company, or investment trust; investments authorized; bank or trust company; investments authorized.

(1) Notwithstanding the prohibition on investments in section 8-224.01, a fiduciary holding funds for investment may invest such funds in securities of, or other interests in, a private investment fund or any open-end or closed-end management-type investment company or investment trust registered or exempt from registration under the federal Investment Company Act of 1940, as amended, if a court order, will, agreement, or other instrument creating or defining the investment powers of the fiduciary directs, requires, authorizes, or permits the investment of such funds in any of the following:

(a) Such investments as the fiduciary may, in his or her discretion, select;

(b) Investments generally, other than those in which fiduciaries are by law authorized to invest trust funds; and

(c) United States Government obligations if the portfolio of such investment company or investment trust is limited to United States Government obligations and to repurchase agreements fully collateralized by such obligations and if such investment company or investment trust takes delivery of the collateral, either directly or through an authorized custodian.

(2)(a) Notwithstanding the prohibition on investments in section 8-224.01, a bank or trust company acting as a fiduciary, agent, or otherwise may, in the exercise of its investment discretion or at the direction of another person authorized to direct investment of funds held by the bank or trust company as a fiduciary, invest and reinvest interests in the securities of a private investment fund or an open-end or closed-end management-type investment company or investment trust registered or exempt from registration under the federal Investment Company Act of 1940, as amended, or may retain, sell, or exchange such interests so long as the portfolio of the investment company or investment trust as an entity consists substantially of investments not prohibited by the instrument governing the fiduciary relationship.

(b) The fact that the bank or trust company or an affiliate of the bank or trust company provides services to the investment company, investment trust, or private investment fund, such as that of an investment advisor, custodian, transfer agent, registrar, sponsor, distributor, manager, or otherwise, and is receiving reasonable compensation for the services shall not preclude the bank or trust company from investing, reinvesting, retaining, or exchanging any interest held by the trust estate in the securities of a private investment fund or any open-end or closed-end management-type investment company or investment trust registered or exempt from registration under the federal Investment Company Act of 1940, as amended.

Source:Laws 1987, LB 576, § 1; R.S.Supp.,1988, § 24-638; Laws 1993, LB 91, § 1; Laws 2000, LB 932, § 28; Laws 2003, LB 130, § 135; Laws 2020, LB909, § 22.

30-3206. Repealed. Laws 2008, LB 851, § 32.

30-3207. Bank or trust company; common trust funds authorized; investments; conditions.

Any bank or trust company qualified to act as fiduciary in this state may establish common trust funds for the purpose of furnishing investments to itself as fiduciary, or to itself and others, as cofiduciaries, and may, as such fiduciary or cofiduciary, invest funds which it lawfully holds for investment in interests in such common trust funds, if such investment is not prohibited by the instrument, judgment, decree, or order creating such fiduciary relationship and if, in the case of cofiduciaries, the bank or trust company procures the consent of its cofiduciaries to such investment.

Source:Laws 1953, c. 67, § 1, p. 212; R.S.1943, (1985), § 24-601.01.

30-3208. Bank or trust company; powers.

(1) Notwithstanding the provisions of sections 30-3201 and 30-3207, any bank or trust company qualified to act as fiduciary in this state may:

(a) Establish and maintain common trust funds for the collective investment of funds held in any fiduciary capacity by it or by another bank or trust company which is owned or controlled by a corporation which owns or controls such bank or trust company; and

(b) As a fiduciary or cofiduciary, invest funds which it holds for investment in common trust funds established and maintained by another bank or trust company which is owned or controlled by a corporation which owns or controls such bank or trust company if such investment is not prohibited by the instrument, judgment, decree, or order creating such fiduciary relationship.

(2) To the extent not inconsistent with this section, sections 30-3201 to 30-3203 and 30-3207 shall apply to the establishment and maintenance of, and investment in common trust funds under this section.

(3) This section shall apply to fiduciary relationships now in existence or hereafter created.

Source:Laws 1982, LB 951, § 1; R.S.1943, (1985), § 24-601.05.

30-3209. Corporate trustee; retirement or pension funds of governmental employees; investments authorized.

(1) Corporate trustees authorized by Nebraska law to exercise fiduciary powers and holding retirement or pension funds for the benefit of employees or former employees of cities, villages, school districts, or other governmental or political subdivisions may invest and reinvest such funds in such securities and investments as are authorized for trustees, guardians, conservators, personal representatives, or administrators under the laws of Nebraska. Retirement or pension funds of such cities, villages, districts, or subdivisions may be invested in annuities issued by life insurance companies authorized to do business in Nebraska. Except as provided in subsection (2) of this section, any other retirement or pension funds of cities, including cities operating under home rule charters, villages, school districts except as provided in section 79-9,107, and all other governmental or political subdivisions may be invested and reinvested, as the governing body of such city, village, school district, or other governmental or political subdivision may determine, in the following classes of securities and investments: (a) Bonds, notes, or other obligations of the United States or those guaranteed by or for which the credit of the United States is pledged for the payment of the principal and interest or dividends thereof; (b) bonds or other evidences of indebtedness of the State of Nebraska and full faith and credit obligations of or obligations unconditionally guaranteed as to principal and interest by any other state of the United States; (c) bonds, notes, or obligations of any municipal or political subdivision of the State of Nebraska which are general obligations of the issuer thereof and revenue bonds or debentures of any city, county, or utility district of this state when the earnings available for debt service have, for a five-year period immediately preceding the date of purchase, averaged not less than one and one-half times such debt service requirements; (d) bonds and debentures issued either singly or collectively by any of the twelve federal land banks, the twelve intermediate credit banks, or the thirteen banks for cooperatives under the supervision of the Farm Credit Administration; (e) certificates of deposit of banks which are members of the Federal Deposit Insurance Corporation or capital stock financial institutions, and if the amount deposited exceeds the amount of insurance available thereon, then the excess shall be secured in the same manner as for the deposit of public funds; (f) accounts with building and loan associations, qualifying mutual financial institutions, or federal savings and loan associations in the State of Nebraska to the extent that such accounts are insured or guaranteed by the Federal Deposit Insurance Corporation; (g) bonds or other interest-bearing obligations of any corporation organized under the laws of the United States or any state thereof if (i) at the time the purchase is made, they are given, by at least one statistical organization whose publication is in general use, one of the three highest ratings given by such organization and (ii) not more than five percent of the fund shall be invested in the obligations of any one issuer; (h) direct short-term obligations, generally classified as commercial paper, of any corporation organized or existing under the laws of the United States or any state thereof with a net worth of ten million dollars or more; and (i) preferred or common stock of any corporation organized under the laws of the United States or of any state thereof with a net worth of ten million dollars or more if (i) not more than fifty percent of the total investments at the time such investment is made is in this class and not more than five percent is invested in each of the first five years and (ii) not more than five percent thereof is invested in the securities of any one corporation. Notwithstanding the percentage limits stated in this subsection, the cash proceeds of the sale of such preferred or common stock may be reinvested in any securities authorized under this subdivision. No city, village, school district, or other governmental subdivision or the governing body thereof shall be authorized to sell any securities short, buy on margin, or buy, sell, or engage in puts and calls. Section 77-2366 shall apply to deposits in capital stock financial institutions. Section 77-2365.01 shall apply to deposits in qualifying mutual financial institutions.

(2) Notwithstanding the limitations prescribed in subsection (1) of this section, trustees or custodians holding retirement or pension funds for the benefit of employees or former employees of any city of the primary class, city of the metropolitan class, metropolitan utilities district, county in which a city of the metropolitan class is located, or public power district shall invest such funds in investments of the nature which individuals of prudence, discretion, and intelligence acquire or retain in dealing with the property of another. Such investments shall not be made for speculation but for investment, considering the probable safety of their capital as well as the probable income to be derived. The trustees or custodians shall not buy on margin, buy call options, or buy put options. The trustees or custodians may lend any security if cash, United States Government obligations, or United States Government agency obligations with a market value equal to or exceeding the market value of the security lent are received as collateral. If shares of stock are purchased under this subsection, all proxies may be voted by the trustees or custodians. The asset allocation restrictions set forth in subsection (1) of this section shall not be applicable to the funds of pension or retirement systems administered by or on behalf of a city of the primary class, city of the metropolitan class, metropolitan utilities district, county in which a city of the metropolitan class is located, or public power district.

(3) For purposes of subsection (2) of this section, a custodian means a custodian meeting the requirements of section 401(f)(2) of the Internal Revenue Code.

Source:Laws 1967, c. 257, § 1, p. 678; Laws 1984, LB 752, § 1; Laws 1989, LB 33, § 25; R.S.Supp.,1989, § 24-601.04; Laws 1992, LB 757, § 21; Laws 1996, LB 900, § 1036; Laws 1998, LB 1321, § 78; Laws 2001, LB 362, § 29; Laws 2001, LB 408, § 12; Laws 2009, LB259, § 12; Laws 2014, LB759, § 18.

30-3210. Real estate mortgage; purchase of stock in federal corporation; court may authorize.

When any court of competent jurisdiction shall issue a license to any trustee, executor, administrator or guardian to execute a real estate mortgage, such court may authorize the trustee, executor, administrator or guardian to purchase stock in any association or corporation created or which may be created by authority of the United States and as an instrumentality of the United States when such purchase of stock is necessary or required as an incident to obtaining such loan; Provided, the amount of stock which may be purchased shall be limited to the amount of stock required for the proposed loan.

Source:Laws 1935, c. 68, § 2, p. 246; C.S.Supp.,1941, § 27-604; R.S.1943, § 24-603; R.S.1943, (1985), § 24-603.

30-3211. Registration of securities; name; conditions; liability of fiduciary.

Any person or any corporation holding any stock, bond, note, debenture, or any other security or property, the title to which may be registered, hereinafter referred to as a security, as executor, administrator, trustee, guardian, conservator or in any other fiduciary capacity, may cause the same to be registered in his or its own name or in the name of a nominee without any words indicating the fiduciary capacity in which such security is held; Provided, (1) the accounts and records of such person or corporation at all times clearly show that such security was held by such person or corporation in such fiduciary capacity; (2) said security is kept separate and apart from the property held by such person or corporation in his or its own right or in any other fiduciary capacity, or such security may be evidenced by book entry; (3) such fiduciary at all times has possession of such security and, if registered in the name of a nominee, before or promptly after such registration, secures from the nominee all such instruments as may be necessary to transfer the same without any further act of such nominee; and (4) the fiduciary shall be liable individually and in his or its own right for any loss resulting to the fiduciary estate because said security was so registered instead of being registered in his or its name as such fiduciary.

Source:Laws 1947, c. 80, § 1, p. 253; Laws 1978, LB 763, § 2; R.S.1943, (1985), § 24-604.

Annotations

Passage of nominee statute in 1947 was such a change of circumstances as to require bond of testamentary trustee even though will provided that no bond be required. In re Estate of Grainger, 151 Neb. 555, 38 N.W.2d 435 (1949).

30-3212. Registration of securities; name of nominee.

A corporation acting as one of two or more fiduciaries, with the consent of its cofiduciary or cofiduciaries, who are hereby authorized to give such consent, may register a security held by said fiduciaries in the name of its nominee, subject in all respects to the requirements, provisions and liabilities set forth in section 30-3211.

Source:Laws 1947, c. 80, § 2, p. 254; R.S.1943, (1985), § 24-605.

30-3213. Real estate investment trust, defined.

For the purpose of this section and section 30-3214 real estate investment trust shall mean an unincorporated trust or an unincorporated association:

(1) Which is managed by one or more trustees;

(2) The beneficial ownership of which is evidenced by the transferable shares, or by transferable certificates of beneficial interest;

(3) Which does not hold any property primarily for sale to customers in the ordinary course of its trade or business; and

(4) The beneficial ownership of which is held by one hundred or more persons.

Source:Laws 1961, c. 108, § 1, p. 345; R.S.1943, (1985), § 24-632.

30-3214. Real estate investment trust; articles of agreement or trust; filing.

A real estate investment trust shall file its articles of agreement or of trust or any modifications thereof with the Secretary of State and with the county clerk of the county in this state in which the trust has its principal place of doing business by complying with the same procedures as set forth in sections 21-215, 21-219 to 21-225, and 21-2,150 to 21-2,160. Such filing shall include a copy of the articles of agreement or of trust and shall name a resident agent in the State of Nebraska and the principal place of doing business in this state.

Source:Laws 1961, c. 108, § 2, p. 345; Laws 1965, c. 114, § 1, p. 439; R.S.1943, (1985), § 24-633; Laws 1995, LB 109, § 213; Laws 2014, LB749, § 278.

30-3215. Private foundations and split-interest trusts; prohibited acts.

Notwithstanding any provision to the contrary in the governing instrument or under any other law of this state and except as otherwise provided by court decree entered after April 30, 1971, a trust, whenever created, which is a private foundation or a split-interest trust as defined in sections 509 and 4947, respectively, of the Internal Revenue Code, during the period it is a private foundation or split-interest trust as so defined:

(1) Shall not engage in any act of self-dealing as defined in section 4941(d) of such code;

(2) Shall distribute the trust income for each taxable year at such time and in such manner as not to subject the trust to the tax on undistributed income imposed by section 4942 of such code;

(3) Shall not retain any excess business holdings as defined in section 4943(c) of such code;

(4) Shall not make any investment in such manner as to subject the trust to tax under section 4944 of such code; and

(5) Shall not make any taxable expenditure as defined in section 4945(d) of such code.

Except as otherwise provided by court decree entered after April 30, 1971, the prohibitions and requirements imposed upon such a trust by subdivisions (1) through (5) of this section shall be deemed to be included within the governing instrument of every private foundation or split-interest trust, as defined in this section.

Source:Laws 1971, LB 793, § 1; R.S.1943, (1985), § 24-634; Laws 1995, LB 574, § 40.

30-3216. Private foundations and split-interest trusts; governing instrument; amendments permitted.

The trustee of a trust, whenever created, which is a private foundation or a split-interest trust as defined in sections 509 and 4947, respectively, of the Internal Revenue Code may, notwithstanding any provision to the contrary in the governing instrument or under any other law of this state and except as otherwise provided by court decree entered after April 30, 1971, amend the terms of the governing instrument to the extent necessary to bring the trust into conformity with the requirements for:

(1) Termination of private foundation status in the manner described in section 507 of such code, and exemption of the trust from the taxes imposed by sections 4941 to 4945, inclusive, thereof; or

(2) Exclusion of the trust from private foundation status under section 509(a)(3) of such code; and to this end may release any power contained in the governing instrument, may reduce or limit the charitable organizations or classes of charitable organizations in whose favor a power to select may be exercised, and may appoint new or additional trustees. If the trust is for the benefit of one or more named charitable organizations, the trustee shall first obtain the consent of those organizations before making any amendment under this subdivision.

Source:Laws 1971, LB 793, § 2; R.S.1943, (1985), § 24-635; Laws 1995, LB 574, § 41.

30-3217. Private foundations and split-interest trusts; applicability of sections.

A trustee of a trust which is a private foundation or a split-interest trust as defined in section 30-3215, may elect that sections 30-3215 to 30-3218 shall not apply to such trust and its trustee or trustees by so notifying the Attorney General in writing within six months following April 30, 1971, or when such trust becomes subject to sections 30-3215 to 30-3218, whichever last occurs. Section 30-3215 shall not apply to any trust with respect to which notice has been given, unless the trust is amended to comply with the terms of section 30-3215.

Source:Laws 1971, LB 793, § 3; R.S.1943, (1985), § 24-636.

30-3218. Private foundations and split-interest trusts; sections; how interpreted.

Sections 30-3215 to 30-3218 shall be interpreted to effectuate the intent of the State of Nebraska to preserve, foster and encourage gifts to or for the benefit of charitable organizations and to preserve to such organizations their right to exemption from federal income taxes.

Source:Laws 1971, LB 793, § 4; R.S.1943, (1985), § 24-637.

30-3219. Electric and communication facilities; easement; license and agreement for construction, operation, and maintenance; fiduciaries; execution.

Administrators and executors of the estates of deceased persons, trustees of trust estates, the guardians of estates of minors and incompetent persons, and conservators may execute easements, licenses, and other contracts with public power districts, electric membership associations, cooperative corporations, individuals, partnerships, limited liability companies, or corporations for the construction, operation, and maintenance of electric generation, transmission, or distribution facilities or facilities for the transmission or distribution of communications upon such terms and conditions as the administrators, executors, trustees, guardians, or conservators of such persons deem reasonable and equitable, and for the best interests of the estates of deceased persons, minors, incompetents, and beneficiaries of a trust.

Source:Laws 1961, c. 462, § 1, p. 1406; Laws 1993, LB 121, § 552; R.S.1943, (1999), § 86-337; Laws 2002, LB 1105, § 434.

Cross References

Oil and gas pipeline easements, powers, see section 57-401.

30-3220. Electric and communication facilities; easement; license and agreement for construction, operation, and maintenance; fiduciaries; execution; procedure.

Easements and contracts authorized in section 30-3219 shall be entered into by administrators, executors, trustees, guardians, and conservators only upon compliance with and upon securing the approval of the county court of the county where the real estate is located in the manner provided in section 57-402, pertaining to oil and gas pipeline easements.

Source:Laws 1961, c. 462, § 2, p. 1406; Laws 1972, LB 1032, § 283; R.S.1943, (1999), § 86-338; Laws 2002, LB 1105, § 435.

30-3301. Repealed. Laws 1995, LB 97, § 74.

30-3302. Repealed. Laws 1995, LB 97, § 74.

30-3303. Repealed. Laws 1995, LB 97, § 74.

30-3304. Repealed. Laws 1995, LB 97, § 74.

30-3305. Repealed. Laws 1995, LB 97, § 74.

30-3306. Repealed. Laws 1995, LB 97, § 74.

30-3307. Repealed. Laws 1995, LB 97, § 74.

30-3308. Repealed. Laws 1995, LB 97, § 74.

30-3309. Repealed. Laws 1995, LB 97, § 74.

30-3310. Repealed. Laws 1995, LB 97, § 74.

30-3311. Repealed. Laws 1995, LB 97, § 74.

30-3401. Legislative intent.

(1) It is the intent of the Legislature to establish a decisionmaking process which allows a competent adult to designate another person to make health care and medical treatment decisions if the adult becomes incapable of making such decisions.

(2) The Legislature does not intend to encourage or discourage any particular health care or treatment decision or to create any new right or alter any existing right of competent adults to make such decisions, but the Legislature does intend through sections 30-3401 to 30-3432 to allow an adult to exercise rights he or she already possesses by means of delegation of decisionmaking authority to a designated attorney in fact.

(3) Sections 30-3401 to 30-3432 shall not confer any new rights regarding the provision or rejection of any specific medical treatment and shall not alter any existing laws concerning homicide, suicide, or assisted suicide. Nothing in sections 30-3401 to 30-3432 shall be construed to condone, authorize, or approve homicide, suicide, or assisted suicide.

Source:Laws 1992, LB 696, § 1.

30-3402. Terms, defined.

For purposes of sections 30-3401 to 30-3432:

(1) Adult shall mean any person who is eighteen years of age or older or is not a minor;

(2) Attending physician shall mean the physician, selected by or assigned to a principal, who has primary responsibility for the care and treatment of such principal;

(3) Attorney in fact shall mean an adult properly designated and authorized under sections 30-3401 to 30-3432 to make health care decisions for a principal pursuant to a power of attorney for health care and shall include a successor attorney in fact;

(4) Health care shall mean any treatment, procedure, or intervention to diagnose, cure, care for, or treat the effects of disease, injury, and degenerative conditions. Health care shall include mental health care;

(5) Health care decision shall include consent, refusal of consent, or withdrawal of consent to health care. Health care decision shall not include (a) the withdrawal or withholding of routine care necessary to maintain patient comfort, (b) the withdrawal or withholding of the usual and typical provision of nutrition and hydration, or (c) the withdrawal or withholding of life-sustaining procedures or of artificially administered nutrition or hydration, except as provided by sections 30-3401 to 30-3432;

(6) Health care provider shall mean an individual or facility licensed, certified, or otherwise authorized or permitted by law to administer health care in the ordinary course of business or professional practice and shall include all facilities defined in the Health Care Facility Licensure Act;

(7) Except as otherwise provided in section 30-4404 for an advance mental health care directive, incapable shall mean the inability to understand and appreciate the nature and consequences of health care decisions, including the benefits of, risks of, and alternatives to any proposed health care or the inability to communicate in any manner an informed health care decision;

(8) Life-sustaining procedure shall mean any medical procedure, treatment, or intervention that (a) uses mechanical or other artificial means to sustain, restore, or supplant a spontaneous vital function and (b) when applied to a person suffering from a terminal condition or who is in a persistent vegetative state, serves only to prolong the dying process. Life-sustaining procedure shall not include routine care necessary to maintain patient comfort or the usual and typical provision of nutrition and hydration;

(9) Mental health care shall include, but not be limited to, mental health care and treatment expressly provided for in the Advance Mental Health Care Directives Act;

(10) Persistent vegetative state shall mean a medical condition that, to a reasonable degree of medical certainty as determined in accordance with currently accepted medical standards, is characterized by a total and irreversible loss of consciousness and capacity for cognitive interaction with the environment and no reasonable hope of improvement;

(11) Power of attorney for health care shall mean a power of attorney executed in accordance with sections 30-3401 to 30-3432 which authorizes a designated attorney in fact to make health care decisions for the principal when the principal is incapable;

(12) Principal shall mean an adult who, when competent, confers upon another adult a power of attorney for health care;

(13) Reasonably available shall mean that a person can be contacted with reasonable efforts by an attending physician or another person acting on behalf of the attending physician;

(14) Terminal condition shall mean an incurable and irreversible medical condition caused by injury, disease, or physical illness which, to a reasonable degree of medical certainty, will result in death regardless of the continued application of medical treatment including life-sustaining procedures; and

(15) Usual and typical provision of nutrition and hydration shall mean delivery of food and fluids orally, including by cup, eating utensil, bottle, or drinking straw.

Source:Laws 1992, LB 696, § 2; Laws 2000, LB 819, § 66; Laws 2020, LB247, § 16; Laws 2024, LB1195, § 6.
Effective Date: July 19, 2024

Cross References

Advance Mental Health Care Directives Act, see section 30-4401.

Health Care Facility Licensure Act, see section 71-401.

30-3403. Power of attorney for health care; designation; competency; presumption.

(1) A principal may confer a power of attorney for health care thereby designating another competent adult as attorney in fact for health care decisions in accordance with sections 30-3401 to 30-3432. A principal may also designate another competent adult as a successor attorney in fact to serve in place of the original attorney in fact when the original attorney in fact is not reasonably available or is unable or unwilling to serve as an attorney in fact. If, after the authority of a successor attorney in fact has commenced, the original attorney in fact becomes available, able, and willing to serve as attorney in fact, the authority of the successor attorney in fact shall cease and the authority of the original designee shall commence.

(2) There shall be a rebuttable presumption that every adult is competent for purposes of executing a power of attorney for health care unless such adult has been adjudged incompetent or unless a guardian has been appointed for such adult.

Source:Laws 1992, LB 696, § 3.

30-3404. Power of attorney; contents.

The power of attorney for health care shall (1) be in writing, (2) identify the principal, the attorney in fact, and the successor attorney in fact, if any, (3) specifically authorize the attorney in fact to make health care decisions on behalf of the principal in the event the principal is incapable, (4) show the date of its execution, and (5) be witnessed and signed by at least two adults, each of whom witnesses either the signing and dating of the power of attorney for health care by the principal or the principal's acknowledgment of the signature and date, or be signed and acknowledged by the principal before a notary public who shall not be the attorney in fact or successor attorney in fact.

Source:Laws 1992, LB 696, § 4; Laws 1993, LB 782, § 20.

30-3405. Witness; disqualification; declaration.

(1)(a) The following shall not qualify to witness a power of attorney for health care: Any person who at the time of witnessing is the principal's spouse, parent, child, grandchild, sibling, presumptive heir, known devisee, attending physician, mental health treatment team member, romantic or dating partner, or attorney in fact; or an employee of a life or health insurance provider for the principal.

(b) No more than one witness may be an administrator or employee of a health care provider who is caring for or treating the principal.

(2) Each witness shall make the written declaration in substantially the form prescribed in section 30-3408.

Source:Laws 1992, LB 696, § 5; Laws 2020, LB247, § 17.

30-3406. Attorney in fact; disqualification.

None of the following may serve as an attorney in fact:

(1) The attending physician or a member of the mental health treatment team of the principal;

(2) An employee of the attending physician or a member of the mental health treatment team of the principal who is unrelated to the principal by blood, marriage, or adoption;

(3) A person unrelated to the principal by blood, marriage, or adoption who is an owner, operator, or employee of a health care provider in or of which the principal is a patient or resident; and

(4) A person unrelated to the principal by blood, marriage, or adoption if, at the time of the proposed designation, he or she is presently serving as an attorney in fact for ten or more principals.

Source:Laws 1992, LB 696, § 6; Laws 2020, LB247, § 18.

30-3407. Attorney in fact; withdrawal.

At any time when the principal is not incapable, the attorney in fact may withdraw by giving notice to the principal. At any time when the principal is incapable, the attorney in fact may withdraw by giving notice to the health care provider who shall cause the withdrawal to be made a part of the principal's medical records.

Source:Laws 1992, LB 696, § 7; Laws 1993, LB 782, § 21.

30-3408. Power of attorney; form; validity.

(1) A power of attorney for health care executed on or after September 9, 1993, shall be in a form which complies with sections 30-3401 to 30-3432 and may be in the form provided in this subsection.

POWER OF ATTORNEY FOR HEALTH CARE

I appoint ..................., whose address is ..........., and whose telephone number is ..........., as my attorney in fact for health care. I appoint ..........., whose address is ................................, and whose telephone number is ..........., as my successor attorney in fact for health care. I authorize my attorney in fact appointed by this document to make health care decisions for me when I am determined to be incapable of making my own health care decisions. I have read the warning which accompanies this document and understand the consequences of executing a power of attorney for health care.

I direct that my attorney in fact comply with the following instructions or limitations: .................................

I direct that my attorney in fact comply with the following instructions on life-sustaining treatment: (optional) ..................................................

I direct that my attorney in fact comply with the following instructions on artificially administered nutrition and hydration: (optional) ..................................................

I HAVE READ THIS POWER OF ATTORNEY FOR HEALTH CARE. I UNDERSTAND THAT IT ALLOWS ANOTHER PERSON TO MAKE LIFE AND DEATH DECISIONS FOR ME IF I AM INCAPABLE OF MAKING SUCH DECISIONS. I ALSO UNDERSTAND THAT I CAN REVOKE THIS POWER OF ATTORNEY FOR HEALTH CARE AT ANY TIME BY NOTIFYING MY ATTORNEY IN FACT, MY PHYSICIAN, OR THE FACILITY IN WHICH I AM A PATIENT OR RESIDENT. I ALSO UNDERSTAND THAT I CAN REQUIRE IN THIS POWER OF ATTORNEY FOR HEALTH CARE THAT THE FACT OF MY INCAPACITY IN THE FUTURE BE CONFIRMED BY A SECOND PHYSICIAN.

.............................................

(Signature of person making designation/date)

DECLARATION OF WITNESSES

We declare that the principal is personally known to us, that the principal signed or acknowledged his or her signature on this power of attorney for health care in our presence, that the principal appears to be of sound mind and not under duress or undue influence, and that neither of us nor the principal's attending physician is the person appointed as attorney in fact by this document.

Witnessed By:

........................... ............................

(Signature of Witness/Date) (Printed Name of Witness)

........................... ...........................

(Signature of Witness/Date) (Printed Name of Witness)

OR

State of Nebraska,)

) ss.

County of ...... .)

On this ........ day of ......... 20...., before me, ......., a notary public in and for .............. County, personally came .........., personally to me known to be the identical person whose name is affixed to the above power of attorney for health care as principal, and I declare that he or she appears in sound mind and not under duress or undue influence, that he or she acknowledges the execution of the same to be his or her voluntary act and deed, and that I am not the attorney in fact or successor attorney in fact designated by this power of attorney for health care.

Witness my hand and notarial seal at ......... in such county the day and year last above written.

..........................

Seal Signature of Notary Public

(2) A power of attorney for health care may be included in a durable power of attorney drafted under the Nebraska Uniform Power of Attorney Act or in any other form if the power of attorney for health care included in such durable power of attorney or any other form fully complies with the terms of section 30-3404.

(3) A power of attorney for health care executed prior to January 1, 1993, shall be effective if it fully complies with the terms of section 30-3404.

(4) A power of attorney for health care which is executed in another state and is valid under the laws of that state shall be valid according to its terms.

(5) A power of attorney for health care may include an advance mental health care directive under the Advance Mental Health Care Directives Act.

Source:Laws 1992, LB 696, § 8; Laws 1993, LB 782, § 22; Laws 2004, LB 813, § 11; Laws 2012, LB1113, § 47; Laws 2020, LB247, § 19.

Cross References

Advance Mental Health Care Directives Act, see section 30-4401.

Nebraska Uniform Power of Attorney Act, see section 30-4001.

30-3409. Power of attorney; medical record.

The power of attorney for health care, when its existence becomes known, shall be made a part of the principal's medical record with any health care provider in or of which the principal is a patient or resides.

Source:Laws 1992, LB 696, § 9; Laws 1993, LB 782, § 23.

30-3410. Power of attorney; duration.

A power of attorney for health care shall continue in effect until the principal's death, until revoked pursuant to section 30-3420, or until the attorney in fact and any successor attorney in fact withdraws pursuant to section 30-3407.

Source:Laws 1992, LB 696, § 10.

30-3411. Authority of attorney in fact; commencement.

The authority of the attorney in fact shall commence upon a determination pursuant to section 30-3412 that the principal is incapable of making health care decisions.

Source:Laws 1992, LB 696, § 11.

30-3412. Incapacity of principal; determination.

(1) A determination that a principal is incapable of making health care decisions shall be made in writing by the attending physician and any physician consulted with respect to the determination that the principal is incapable of making health care decisions, and they shall document the cause and nature of the principal's incapacity. The determination shall be included in the principal's medical record with the attending physician and, when applicable, with the consulting physician and the health care facility in or of which the principal is a patient or resides.

(2) A physician who has been designated a principal's attorney in fact shall not make the determination that the principal is incapable of making health care decisions.

Source:Laws 1992, LB 696, § 12; Laws 1993, LB 782, § 24.

30-3413. Incapacity of principal; notice.

Notice of a determination that a principal is incapable of making health care decisions shall be given by the attending physician (1) to the principal when there is any indication of the principal's ability to comprehend such notice, (2) to the attorney in fact, and (3) to the health care provider.

Source:Laws 1992, LB 696, § 13; Laws 1993, LB 782, § 25.

30-3414. Incapacity of principal; attorney in fact; duties.

Promptly upon being notified that a determination that the principal is incapable of making health care decisions has or is about to be made, the attorney in fact, if other than the principal's most proximate next of kin and if the principal has not directed otherwise, shall notify the most proximate next of kin and the court-appointed guardian of the principal, if any. The order of notification shall be: (1) The spouse; (2) an adult child; (3) either parent; (4) an adult brother or sister; and (5) the next closest kin.

Source:Laws 1992, LB 696, § 14.

30-3415. Incapacity of principal; dispute; hearing.

If a dispute arises as to whether the principal is incapable, a petition may be filed with the county court in the county in which the principal resides or is located requesting the court's determination as to whether the principal is incapable of making health care decisions. If such a petition is filed, the court shall appoint a guardian ad litem to represent the principal. The court shall conduct a hearing on the petition within seven days after the court's receipt of the petition. Within seven days after the hearing, the court shall issue its determination. If the court determines that the principal is incapable, the authority, rights, and responsibilities of the principal's attorney in fact shall become effective. If the court determines that the principal is not incapable, the authority, rights, and responsibilities of the attorney in fact shall not become effective.

Source:Laws 1992, LB 696, § 15.

30-3416. Incapacity of principal; determination; effect.

A determination that a principal is incapable of making health care decisions shall not be construed as a finding that the principal is incapable for any other purpose.

Source:Laws 1992, LB 696, § 16.

30-3417. Attorney in fact; powers and duties; exceptions; responsibility for costs; rights; objection of principal; health care provider; acceptance of decisions.

(1) When the authority conferred by a power of attorney for health care has commenced, the attorney in fact, subject to any instructions and limitations set forth in the power of attorney for health care or elsewhere, shall make health care decisions on the principal's behalf, except that the attorney in fact shall not have authority (a) to consent to any act or omission to which the principal could not consent under law, (b) to make any decision when the principal is known to be pregnant that will result in the death of the principal's unborn child and it is probable that the unborn child will develop to the point of live birth with continued application of health care, or (c) to make decisions regarding withholding or withdrawing a life-sustaining procedure or withholding or withdrawing artificially administered nutrition and hydration except as provided under section 30-3418.

(2) The attorney in fact shall have priority over any person other than the principal to act for the principal in all health care decisions, except that the attorney in fact shall not have the authority to make any health care decision unless and until the principal has been determined to be incapable of making health care decisions pursuant to section 30-3412.

(3) The attorney in fact shall not be personally responsible for the cost of health care provided to the principal.

(4) Except to the extent that the right is limited by the power of attorney for health care, an attorney in fact shall have the same right as the principal to receive information regarding the proposed health care, to receive and review medical and clinical records, and to consent to the disclosures of such records, except that the right to access such records shall not be a waiver of any evidentiary privilege.

(5) Notwithstanding a determination pursuant to section 30-3412 that the principal is incapable of making health care decisions, when a principal objects to the determination or to a health care decision made by an attorney in fact, the principal's objection or decision shall prevail unless the principal is determined by a county court to be incapable of making health care decisions.

(6) No health care provider shall be required to accept health care decisions from an attorney in fact until such health care provider has received a signed original or a photostatic copy of a signed original power of attorney for health care.

Source:Laws 1992, LB 696, § 17.

30-3418. Attorney in fact; consult with medical personnel; authority; limitations.

(1) In exercising authority under the power of attorney for health care, an attorney in fact shall have a duty to consult with medical personnel, including the attending physician, and thereupon to make health care decisions (a) in accordance with the principal's wishes as expressed in the power of attorney for health care or as otherwise made known to the attorney in fact or (b) if the principal's wishes are not reasonably known and cannot with reasonable diligence be ascertained, in accordance with the principal's best interests, with due regard for the principal's religious and moral beliefs if known.

(2) Notwithstanding subdivision (1)(b) of this section, the attorney in fact shall not have the authority to consent to the withholding or withdrawing of a life-sustaining procedure or artificially administered nutrition or hydration unless (a) the principal is suffering from a terminal condition or is in a persistent vegetative state and (b) the power of attorney for health care explicitly grants such authority to the attorney in fact or the intent of the principal to have life-sustaining procedures or artificially administered nutrition or hydration withheld or withdrawn under such circumstances is established by clear and convincing evidence.

(3) In exercising any decision, the attorney in fact shall have no authority to withhold or withdraw consent to routine care necessary to maintain patient comfort or the usual and typical provision of nutrition and hydration.

Source:Laws 1992, LB 696, § 18.

Annotations

Where the wishes expressed by the principal while competent were impossible to fulfill and the attorneys in fact for health care faced medical decisions about which the principal’s wishes were not known and could not be reasonably ascertained due to the principal’s incompetence, the duty of the attorneys in fact for health care was to act in a manner consistent with the principal’s best interests. In re Trust Created by Nabity, 289 Neb. 164, 854 N.W.2d 551 (2014).

30-3419. Attending physician; duties.

(1) Before acting upon a health care decision made by an attorney in fact, other than those decisions made at or about the time of the initial determination, the attending physician shall confirm that the principal continues to be incapable. The confirmation shall be stated in writing and shall be included in the principal's medical records. The notice requirements set forth in sections 30-3413 and 30-3414 shall not apply to the confirmation required by this subsection.

(2) If the attending physician determines that the principal is no longer incapable, the authority of the attorney in fact shall cease unless otherwise directed by the principal, but it shall recommence if the principal subsequently becomes incapable as determined pursuant to section 30-3412.

Source:Laws 1992, LB 696, § 19.

30-3420. Power of attorney; health care decision; revocation; limitations; effect.

(1) A power of attorney for health care or a health care decision made by an attorney in fact may be revoked at any time by a principal who is competent and in any manner by which the principal is able to communicate his or her intent to revoke. Revocation shall be effective upon communication to the attending physician, the health care provider who shall promptly inform the attending physician of the revocation, or the attorney in fact who shall promptly inform the attending physician of the revocation.

(2) The creation by the principal of written wishes or instructions about health care or limitations upon the attorney in fact's authority shall not revoke a power of attorney for health care unless such wishes, instructions, or limitations expressly provide otherwise.

(3) Upon learning of the revocation of the power of attorney for health care, the attending physician shall cause the revocation to be made a part of the principal's medical records.

(4) Unless the power of attorney for health care provides otherwise, execution of a valid power of attorney for health care shall revoke any previously executed power of attorney for health care.

(5) Unless the power of attorney for health care provides otherwise, a power of attorney for health care shall supersede:

(a) Any conflicting preexisting directive;

(b) Any guardianship proceedings under the Nebraska Probate Code to the extent the proceedings involve the right to make health care decisions for the protected person; and

(c) Any conservatorship proceedings under the Nebraska Probate Code to the extent the proceedings involve the right to make health care decisions for the protected person.

(6) A decree of divorce or legal separation entered into pursuant to sections 42-347 to 42-380 may specify whether the choice of the principal's spouse as attorney in fact under a power of attorney for health care shall be revoked or remain effective. If the decree does not specify whether the choice of the spouse as the principal's attorney in fact for health care is revoked or remains effective, the choice of the principal's spouse as attorney in fact for health care shall be deemed revoked upon entry of the decree.

(7) The revocation of a power of attorney for health care shall not revoke or terminate the authority as to the attorney in fact or other person who acts in good faith under the power of attorney for health care and without actual knowledge of the revocation. An action taken without knowledge of the revocation, unless the action is otherwise invalid or unenforceable, shall bind the principal and his or her heirs, devisees, and personal representatives.

Source:Laws 1992, LB 696, § 20.

Cross References

Nebraska Probate Code, see section 30-2201.

Annotations

Where an individual was not competent to execute powers of attorney for health care, her signing of those documents did not effectively revoke previously executed powers of attorney for health care pursuant to this section. In re Trust Created by Nabity, 289 Neb. 164, 854 N.W.2d 551 (2014).

Subsection (5) of this section does not preclude a court from considering a ward's best interests and revoking or setting aside a health care power of attorney in favor of a guardianship when the facts support such action. In re Guardianship & Conservatorship of Mueller, 23 Neb. App. 430, 872 N.W.2d 906 (2015).

Unless the power of attorney provides otherwise, a valid power of attorney for health care supersedes any guardianship or conservatorship proceedings to the extent the proceedings involve the right to make health care decisions for the protected person. In re Guardianship & Conservatorship of Mueller, 23 Neb. App. 430, 872 N.W.2d 906 (2015).

30-3421. Filing of petition; when.

(1) A petition may be filed for any one or more of the following purposes:

(a) To determine whether the power of attorney for health care is in effect or has been revoked or terminated;

(b) To determine whether the acts or proposed acts of the attorney in fact are consistent with the wishes of the principal as expressed in the power of attorney for health care or otherwise established by clear and convincing evidence or, when the wishes of the principal are unknown, whether the acts or proposed acts of the attorney in fact are clearly contrary to the best interests of the principal;

(c) To declare that the power of attorney for health care is revoked upon a determination that the attorney in fact made or proposed to make a health care decision for the principal that authorized an illegal act or omission; or

(d) To declare that the power of attorney for health care is revoked upon a determination by the court of both of the following: (i) That the attorney in fact has violated, failed to perform, or is unable to perform the duty to act in a manner consistent with the wishes of the principal or, when the desires of the principal are unknown, to act in a manner that is in the best interests of the principal; and (ii) that at the time of the determination by the court, the principal lacks the capacity to revoke the power of attorney for health care.

(2) A petition under this section shall be filed with the county court of the county in which the principal resides or is located.

Source:Laws 1992, LB 696, § 21.

Annotations

Where the wishes expressed by the principal while competent were impossible to fulfill and the attorneys in fact for health care faced medical decisions about which the principal’s wishes were not known and could not be reasonably ascertained due to the principal’s incompetence, the appropriate consideration under subdivision (1)(d) of this section was whether the attorneys in fact for health care failed to act in a manner consistent with the principal’s best interests. In re Trust Created by Nabity, 289 Neb. 164, 854 N.W.2d 551 (2014).

30-3422. Filing of petition; by whom.

A petition under section 30-3415 or 30-3421 may be filed by any of the following:

(1) The principal;

(2) The attorney in fact;

(3) The spouse, parent, sibling, or adult child of the principal;

(4) A close adult friend of the principal;

(5) The guardian of the principal;

(6) The attending physician or other health care provider; or

(7) Any other interested party.

Source:Laws 1992, LB 696, § 22; Laws 1993, LB 782, § 26.

30-3423. Attorney in fact; attending physician; health care provider; immunity.

(1) An attorney in fact shall not be guilty of any criminal offense, subject to any civil liability, or in violation of any professional oath or code of ethics or conduct for any action taken in good faith pursuant to a power of attorney for health care or an advance mental health care directive under the Advance Mental Health Care Directives Act.

(2) No attending physician or health care provider acting or declining to act in reliance upon the decision made by a person whom the attending physician or health care provider in good faith believes is the attorney in fact for health care shall be subject to criminal prosecution, civil liability, or professional disciplinary action. Nothing in sections 30-3401 to 30-3432, however, shall limit the liability of an attending physician or health care provider for a negligent act or omission in connection with the medical diagnosis, treatment, or care of the principal.

Source:Laws 1992, LB 696, § 23; Laws 1993, LB 782, § 27; Laws 2020, LB247, § 20.

Cross References

Advance Mental Health Care Directives Act, see section 30-4401.

30-3424. Right to make health care decisions; sections; effect.

Subject to subsection (5) of section 30-3417 and subsection (7) of section 30-3420, in the absence of an effective designation of power of attorney for health care nothing in sections 30-3401 to 30-3432 shall affect any right a person may otherwise have to make health care decisions on behalf of another.

Source:Laws 1992, LB 696, § 24; Laws 1993, LB 782, § 28.

30-3425. Health care providers; assumption of validity.

Health care providers shall be entitled to assume the validity of a power of attorney for health care executed in this state until given actual notice to the contrary.

Source:Laws 1992, LB 696, § 32.

30-3426. Execution of power of attorney; effect on right to routine care.

By executing a power of attorney for health care, a principal shall not waive his or her right to routine hygiene, nursing, and comfort care and the usual and typical provision of nutrition and hydration.

Source:Laws 1992, LB 696, § 25.

30-3427. Health care provider; exercise independent medical judgment.

In following the decision of an attorney in fact, a health care provider shall exercise the same independent medical judgment that the health care provider would exercise in following the decision of the principal if the principal were not incapable.

Source:Laws 1992, LB 696, § 26.

30-3428. Health care provider; refusal to honor health care decision; duties.

(1) Nothing in sections 30-3401 to 30-3432 shall obligate a health care provider organization to honor a health care decision by an attorney in fact that the health care provider organization would not honor if the decision had been made by the principal because the decision is contrary to a formally adopted policy of the health care provider organization that is expressly based on religious beliefs or sincerely held ethical or moral convictions central to the operating principles of the health care provider organization. The health care provider organization may refuse to honor the decision whether made by the principal or by the attorney in fact if the health care provider organization has informed the principal or the attorney in fact of such policy, if reasonably possible. If the attorney in fact is unable or unwilling to arrange a transfer to another health care facility, the health care provider organization may intervene to facilitate such a transfer.

(2) Nothing in sections 30-3401 to 30-3432 shall obligate an individual as a health care provider to honor or cooperate with a health care decision by an attorney in fact that the individual would not honor or cooperate with if the decision had been made by the principal because the decision is contrary to the individual's religious beliefs or sincerely held moral or ethical convictions. The individual health care provider shall promptly inform the attorney in fact and the health care provider organization of his or her refusal to honor or cooperate with the decision of the attorney in fact. In such event, the health care provider organization shall promptly assist in the transfer of responsibility for the principal to another individual health care provider who is willing to honor the decision of the attorney in fact.

Source:Laws 1992, LB 696, § 27.

30-3429. Power of attorney; prohibited acts.

(1) No person shall be required to execute or to refrain from executing a power of attorney for health care as a criterion for insurance or as a condition for receiving health care.

(2) No person authorized to engage in the business of insurance in this state, medical care corporation, health care corporation, health maintenance organization, other health care plan, or legal entity that is self-insured and provides benefits to its employees or members shall do any of the following because of the execution or implementation of a power of attorney for health care or because of the failure or refusal to execute or implement a power of attorney for health care: (a) Refuse to provide or continue coverage to any person; (b) limit or increase the amount of coverage available to any person; (c) charge a person a different rate; (d) consider the terms of an existing policy of life or health insurance to have been breached or modified; or (e) invoke a suicide or intentional death exemption or exclusion in a policy covering the person.

(3) Nothing in sections 30-3401 to 30-3432 shall be intended to impair or supersede any federal statute.

(4) Except as provided in subsections (2) and (3) of section 30-3408 and subsection (4) of section 30-3420, nothing in sections 30-3401 to 30-3432 shall impair or supersede any durable power of attorney in effect prior to January 1, 1993.

Source:Laws 1992, LB 696, § 28; Laws 1993, LB 782, § 29.

30-3430. Presumptions not created.

The fact that a person has not appointed an attorney in fact or has not provided the attorney in fact with specific health care instructions shall create no presumptions regarding the person's wishes about health care.

Source:Laws 1992, LB 696, § 29.

30-3431. Attempted suicide; how construed.

For purposes of making health care decisions, an attempted suicide by the principal shall not be construed as any indication of the principal's wishes with regard to health care.

Source:Laws 1992, LB 696, § 31.

30-3432. Violations; penalties.

(1) It shall be a Class II felony for a person to willfully sign or alter without authority or to otherwise alter, forge, conceal, or destroy a power of attorney for health care or to willfully conceal or destroy a revocation with the intent and effect of causing a withholding or withdrawing of life-sustaining procedures or artificially administered nutrition or hydration which hastens the death of the principal.

(2) It shall be a Class I misdemeanor for a person without the authorization of the principal to willfully alter, forge, conceal, or destroy a power of attorney for health care or a revocation of a power of attorney for health care.

(3) A physician or other health care provider who willfully prevents the transfer of a principal in accordance with section 30-3428 with the intention of avoiding the provisions of sections 30-3401 to 30-3432 shall be guilty of a Class I misdemeanor.

Source:Laws 1992, LB 696, § 30; Laws 1993, LB 782, § 30.

30-3501. Act, how cited.

Sections 30-3501 to 30-3522 shall be known and may be cited as the Nebraska Uniform Custodial Trust Act.

Source:Laws 1997, LB 51, § 1.

30-3502. Terms, defined.

For purposes of the Nebraska Uniform Custodial Trust Act:

(1) Adult means an individual who is at least nineteen years of age;

(2) Beneficiary means an individual for whom property has been transferred to or held under a declaration of trust by a custodial trustee for the individual's use and benefit under the act;

(3) Conservator means a person appointed or qualified by a court to manage the estate of an individual or a person legally authorized to perform substantially the same functions;

(4) Court means a county court of this state;

(5) Custodial trust property means an interest in property transferred to or held under a declaration of trust by a custodial trustee under the act and the income from and proceeds of that interest;

(6) Custodial trustee means a person designated as trustee of a custodial trust under the act or a substitute or successor to the person designated;

(7) Guardian means a person appointed or qualified by a court as a guardian of an individual, including a limited guardian, but not a person who is only a guardian ad litem;

(8) Incapacitated means lacking the ability to manage property and business affairs effectively by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, disappearance, minority, or other disabling cause;

(9) Legal representative means a personal representative or conservator;

(10) Member of the beneficiary's family means a beneficiary's spouse, descendant, stepchild, parent, stepparent, grandparent, brother, sister, uncle, or aunt, whether of whole or half blood or by adoption;

(11) Person means an individual, corporation, limited liability company, or other legal entity;

(12) Personal representative means an executor, administrator, or special administrator of a decedent's estate, a person legally authorized to perform substantially the same functions, or a successor to any of them;

(13) State means a state, territory, or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico;

(14) Transferor means a person who creates a custodial trust by transfer or declaration; and

(15) Trust company means a financial institution, corporation, or other legal entity, authorized to act as a corporate trustee in the State of Nebraska.

Source:Laws 1997, LB 51, § 2.

30-3503. Custodial trust; general provisions.

(a) A person may create a custodial trust of property by a written transfer of the property to another person, evidenced by registration or by other instrument of transfer, executed in any lawful manner, naming as beneficiary, an individual who may be the transferor, in which the transferee is designated, in substance, as the custodial trustee under the Nebraska Uniform Custodial Trust Act.

(b) A person may create a custodial trust of property by a written declaration, evidenced by registration of the property or by other instrument of declaration, executed in any lawful manner, describing the property and naming as beneficiary an individual other than the declarant, in which the declarant as titleholder is designated, in substance, as custodial trustee under the act. A registration or other declaration of trust in which the declarant is designated as custodial trustee for the sole benefit of the declarant is not a custodial trust under the act.

(d) Except as provided in subsection (e) of this section, a transferor may not terminate a custodial trust.

(e) The beneficiary, if not incapacitated, or the conservator of an incapacitated beneficiary, may terminate a custodial trust by delivering to the custodial trustee a writing signed by the beneficiary or conservator declaring the termination. If not previously terminated, the custodial trust terminates on the death of the beneficiary.

(f) Any person may augment existing custodial trust property by the addition of other property pursuant to the act.

(g) The transferor may designate, or authorize the designation of, a successor custodial trustee in the trust instrument.

(h) The act does not displace or restrict other means of creating trusts. A trust whose terms do not conform to the act may be enforceable according to its terms under other law.

Source:Laws 1997, LB 51, § 3; Laws 1999, LB 62, § 1.

30-3504. Custodial trustee for future payment or transfer.

(a) A person having the right to designate the recipient of property payable or transferable upon a future event may create a custodial trust upon the occurrence of the future event by designating in writing the recipient, followed in substance by "as custodial trustee for ................ (name of beneficiary) under the Nebraska Uniform Custodial Trust Act".

(b) Persons may be designated as substitute or successor custodial trustees to whom the property must be paid or transferred in the order named if the first designated custodial trustee is unable or unwilling to serve.

(c) A designation under this section may be made in a will, a trust, a deed, a multiple-party account, an insurance policy, an instrument exercising a power of appointment, or a writing designating a beneficiary of contractual rights. Otherwise, to be effective, the designation must be registered with or delivered to the fiduciary, payor, issuer, or obligor of the future right.

Source:Laws 1997, LB 51, § 4.

30-3505. Form and effect of receipt and acceptance by custodial trustee; jurisdiction.

(a) Obligations of a custodial trustee, including the obligation to follow directions of the beneficiary, arise under the Nebraska Uniform Custodial Trust Act upon the custodial trustee's written acceptance of the custodial trust property.

(b) The custodial trustee's acceptance may be evidenced by a writing stating in substance:

CUSTODIAL TRUSTEE'S RECEIPT AND ACCEPTANCE

I, ............ (name of custodial trustee), acknowledge receipt of the custodial trust property described below or in the attached instrument and accept the custodial trust as custodial trustee for ............ (name of beneficiary) under the Nebraska Uniform Custodial Trust Act. I undertake to administer and distribute the custodial trust property pursuant to the Nebraska Uniform Custodial Trust Act. My obligations as custodial trustee are subject to the directions of the beneficiary unless the beneficiary is designated as, is, or becomes incapacitated. The custodial trust property consists of ............................................................... .

Dated: ...............................................

(Signature of Custodial Trustee) .....................

(c) Upon accepting custodial trust property, a person designated as custodial trustee under the act is subject to personal jurisdiction of the court with respect to any matter relating to the custodial trust.

Source:Laws 1997, LB 51, § 5.

30-3506. Transfer to custodial trustee by fiduciary or obligor; facility of payment.

(a) Unless otherwise directed by an instrument designating a custodial trustee pursuant to section 30-3504, a person, including a fiduciary other than a custodial trustee, who holds property of or owes a debt to an incapacitated individual not having a conservator may make a transfer to an adult member of the beneficiary's family or to a trust company as custodial trustee for the use and benefit of the incapacitated individual. If the value of the property or the debt exceeds ten thousand dollars, the transfer is not effective unless authorized by the court.

(b) A written acknowledgment of delivery, signed by a custodial trustee, is a sufficient receipt and discharge for property transferred to the custodial trustee pursuant to this section.

Source:Laws 1997, LB 51, § 6.

30-3507. Multiple beneficiaries; separate custodial trusts; survivorship.

(a) Beneficial interests in a custodial trust created for multiple beneficiaries are deemed to be separate custodial trusts of equal undivided interests for each beneficiary. Except in a transfer or declaration for use and benefit of husband and wife, for whom survivorship is presumed, a right of survivorship does not exist unless the instrument creating the custodial trust specifically provides for survivorship.

(b) Custodial trust property held under the Nebraska Uniform Custodial Trust Act by the same custodial trustee for the use and benefit of the same beneficiary may be administered as a single custodial trust.

(c) A custodial trustee of custodial trust property held for more than one beneficiary shall separately account to each beneficiary pursuant to sections 30-3508 and 30-3516 for the administration of the custodial trust.

Source:Laws 1997, LB 51, § 7.

30-3508. General duties of custodial trustee.

(a) If appropriate, a custodial trustee shall register or record the instrument vesting title to custodial trust property.

(b) If the beneficiary is not incapacitated, a custodial trustee shall follow the directions of the beneficiary in the management, control, investment, or retention of the custodial trust property. In the absence of effective contrary direction by the beneficiary while not incapacitated, the custodial trustee shall comply with the prudent investor rule set forth in sections 30-3883 to 30-3889 and is not limited by any other law restricting investments by fiduciaries. However, a custodial trustee, in the custodial trustee's discretion, may retain any custodial trust property received from the transferor.

(c) Subject to subsection (b) of this section, a custodial trustee shall take control of and collect, hold, manage, invest, and reinvest custodial trust property.

(d) A custodial trustee at all times shall keep custodial trust property of which the custodial trustee has control, separate from all other property in a manner sufficient to identify it clearly as custodial trust property of the beneficiary. Custodial trust property, the title to which is subject to recordation, is so identified if an appropriate instrument so identifying the property is recorded, and custodial trust property subject to registration is so identified if it is registered, or held in an account in the name of the custodial trustee, designated in substance: "as custodial trustee for ............ (name of beneficiary) under the Nebraska Uniform Custodial Trust Act".

(e) A custodial trustee shall keep records of all transactions with respect to custodial trust property, including information necessary for the preparation of tax returns, and shall make the records and information available at reasonable times to the beneficiary or legal representative of the beneficiary.

Source:Laws 1997, LB 51, § 8; Laws 1999, LB 62, § 2; Laws 2003, LB 130, § 136.

30-3509. General powers of custodial trustee.

(a) A custodial trustee, acting in a fiduciary capacity, has all the rights and powers over custodial trust property which an unmarried adult owner has over individually owned property, but a custodial trustee may exercise those rights and powers in a fiduciary capacity only.

(b) This section does not relieve a custodial trustee from liability for a violation of section 30-3508.

Source:Laws 1997, LB 51, § 9.

30-3510. Use of custodial trust property.

(a) A custodial trustee shall pay to the beneficiary or expend for the beneficiary's use and benefit so much or all of the custodial trust property as the beneficiary, while not incapacitated, may direct in writing from time to time.

(b) If the beneficiary is incapacitated, the custodial trustee shall expend so much or all of the custodial trust property as the custodial trustee considers advisable for the use and benefit of the beneficiary and individuals who were supported by the beneficiary when the beneficiary became incapacitated or who are legally entitled to support by the beneficiary. Expenditures may be made in the manner, when, and to the extent that the custodial trustee determines suitable and proper, without court order and without regard to other support, income, or property of the beneficiary.

(c) A custodial trustee may establish checking, savings, or other similar accounts of reasonable amounts under which either the custodial trustee or the beneficiary may withdraw funds from, or draw checks against, the accounts. Funds withdrawn from, or checks written against, the account by the beneficiary are distributions of custodial trust property by the custodial trustee to the beneficiary.

Source:Laws 1997, LB 51, § 10.

30-3511. Determination of incapacity; effect.

(a) The custodial trustee shall administer the custodial trust as for an incapacitated beneficiary if (i) the custodial trust was created under section 30-3506, (ii) the transferor has so directed in the instrument creating the custodial trust, or (iii) the custodial trustee has determined that the beneficiary is incapacitated.

(b) A custodial trustee may determine that the beneficiary is incapacitated in reliance upon (i) previous direction or authority given by the beneficiary while not incapacitated, including direction or authority pursuant to a durable power of attorney, (ii) the certificate of the beneficiary's physician, or (iii) other persuasive evidence.

(c) If a custodial trustee for an incapacitated beneficiary reasonably concludes that the beneficiary's incapacity has ceased, or that circumstances concerning the beneficiary's ability to manage property and business affairs have changed since the creation of a custodial trust directing administration as for an incapacitated beneficiary, the custodial trustee may administer the trust as for a beneficiary who is not incapacitated.

(d) On petition of the beneficiary, the custodial trustee, or other person interested in the custodial trust property or the welfare of the beneficiary, the court shall determine whether the beneficiary is incapacitated. A determination of incapacity does not require appointment of a guardian or conservator unless, in the discretion of the court, such appointment is otherwise warranted.

(e) Absent determination of incapacity of the beneficiary under subsection (b) or (d) of this section, a custodial trustee who has reason to believe that the beneficiary is incapacitated shall administer the custodial trust in accordance with the provisions of the Nebraska Uniform Custodial Trust Act applicable to an incapacitated beneficiary.

(f) Incapacity of a beneficiary does not terminate (i) the custodial trust, (ii) any designation of a successor custodial trustee, (iii) rights or powers of the custodial trustee, or (iv) any immunities of third persons acting on instructions of the custodial trustee.

(g) A custodial trustee shall not be liable for any determinations authorized by this section regarding the capacity or incapacity of the beneficiary made in good faith.

Source:Laws 1997, LB 51, § 11.

30-3512. Exemption of third person from liability.

A third person in good faith and without a court order may act on instructions of, or otherwise deal with, a person purporting to make a transfer as, or purporting to act in the capacity of, a custodial trustee. In the absence of knowledge to the contrary, the third person is not responsible for determining:

(1) The validity of the purported custodial trustee's designation;

(2) The propriety of, or the authority under the Nebraska Uniform Custodial Trust Act for, any action of the purported custodial trustee;

(3) The validity or propriety of an instrument executed or instruction given pursuant to the act either by the person purporting to make a transfer or declaration or by the purported custodial trustee; or

(4) The propriety of the application of property vested in the purported custodial trustee.

Source:Laws 1997, LB 51, § 12.

30-3513. Liability to third person.

(a) A claim based on a contract entered into by a custodial trustee acting in a fiduciary capacity, an obligation arising from the ownership or control of custodial trust property, or a tort committed in the course of administering the custodial trust, may be asserted by a third person against the custodial trust property by proceeding against the custodial trustee in a fiduciary capacity, whether or not the custodial trustee or the beneficiary is personally liable.

(b) A custodial trustee is not personally liable to a third person:

(1) On a contract properly entered into in a fiduciary capacity unless the custodial trustee fails to reveal that capacity or to identify the custodial trust in the contract; or

(2) For an obligation arising from control of custodial trust property or for a tort committed in the course of the administration of the custodial trust unless the custodial trustee is personally at fault.

(c) A beneficiary is not personally liable to a third person for an obligation arising from beneficial ownership of custodial trust property or for a tort committed in the course of administration of the custodial trust unless the beneficiary is personally in possession of the custodial trust property giving rise to the liability or is personally at fault.

(d) Subsections (b) and (c) of this section do not preclude actions or proceedings to establish liability of the custodial trustee or beneficiary as owner or possessor of the custodial trust property to the extent the person is protected as the insured by liability insurance.

Source:Laws 1997, LB 51, § 13.

30-3514. Declination, resignation, incapacity, death, or removal of custodial trustee; designation of successor custodial trustee.

(a) Before accepting the custodial trust property, a person designated as custodial trustee may decline to serve by notifying the person who made the designation, the transferor, or the transferor's legal representative. If an event giving rise to a transfer has not occurred, the substitute custodial trustee designated under section 30-3504 becomes the custodial trustee, or, if a substitute custodial trustee has not been designated, the person who made the designation may designate a substitute custodial trustee pursuant to section 30-3504. In other cases, the transferor or the transferor's legal representative may designate a substitute custodial trustee.

(b) A custodial trustee who has accepted the custodial trust property may resign by (i) delivering written notice to a successor custodial trustee, if any, the beneficiary and, if the beneficiary is incapacitated, to the beneficiary's conservator, if any, and (ii) transferring or registering, or recording an appropriate instrument relating to, the custodial trust property, in the name of, and delivering the records to, the successor custodial trustee identified under subsection (c) of this section.

(c) If a custodial trustee or successor custodial trustee is ineligible, resigns, dies, or becomes incapacitated, the successor designated under subsection (g) of section 30-3503 or section 30-3504 becomes custodial trustee. If there is no effective provision for a successor, the beneficiary, if not incapacitated, may designate a successor custodial trustee. If the beneficiary is incapacitated, or fails to act within ninety days after the ineligibility, resignation, death, or incapacity of the custodial trustee, the beneficiary's conservator becomes successor custodial trustee. If the beneficiary does not have a conservator or the conservator fails to act, the resigning custodial trustee may designate a successor custodial trustee.

(d) If a successor custodial trustee is not designated pursuant to subsection (c) of this section, the transferor, the legal representative of the transferor or of the custodial trustee, an adult member of the beneficiary's family, the guardian of the beneficiary, a person interested in the custodial trust property, or a person interested in the welfare of the beneficiary may petition the court to designate a successor custodial trustee.

(e) A custodial trustee who declines to serve or resigns, or the legal representative of a deceased or incapacitated custodial trustee, as soon as practicable, shall put the custodial trust property and records in the possession and control of the successor custodial trustee. The successor custodial trustee shall enforce the obligation to deliver custodial trust property and records and becomes responsible for each item as received.

(f) A beneficiary, the beneficiary's conservator, an adult member of the beneficiary's family, a guardian of the person of the beneficiary, a person interested in the custodial trust property, or a person interested in the welfare of the beneficiary may petition the court to remove the custodial trustee for cause and designate a successor custodial trustee, to require the custodial trustee to furnish a bond or other security for the faithful performance of fiduciary duties, or for other appropriate relief.

Source:Laws 1997, LB 51, § 14.

30-3515. Expenses, compensation, and bond of custodial trustee.

Except as otherwise provided in the instrument creating the custodial trust, in an agreement with the beneficiary, or by court order, a custodial trustee:

(1) Is entitled to reimbursement from custodial trust property for reasonable expenses incurred in the performance of fiduciary services;

(2) Has a noncumulative election, to be made no later than three months after the end of each calendar year, to charge a reasonable compensation for fiduciary services performed during that year; and

(3) Need not furnish a bond or other security for the faithful performance of fiduciary duties.

Source:Laws 1997, LB 51, § 15.

30-3516. Reporting and accounting by custodial trustee; determination of liability of custodial trustee.

(a) Upon the acceptance of custodial trust property, the custodial trustee shall provide a written statement that the custodial trust property is held pursuant to the Nebraska Uniform Custodial Trust Act and describing the custodial trust property. The custodial trustee shall thereafter provide a written statement of the administration of the custodial trust property (i) once each year, (ii) upon request at reasonable times by the beneficiary or the beneficiary's legal representative, (iii) upon resignation or removal of the custodial trustee, and (iv) upon termination of the custodial trust. The statements must be provided to the beneficiary or to the beneficiary's legal representative, if any. Upon termination of the beneficiary's interest, the custodial trustee shall furnish a current statement to the person to whom the custodial trust property is to be delivered.

(b) A beneficiary, the beneficiary's legal representative, an adult member of the beneficiary's family, a person interested in the custodial trust property, or a person interested in the welfare of the beneficiary may petition the court for an accounting by the custodial trustee or the custodial trustee's legal representative.

(c) A successor custodial trustee may petition the court for an accounting by a predecessor custodial trustee or the personal representative of a predecessor custodial trustee.

(d) In an action or proceeding under the Nebraska Uniform Custodial Trust Act or in any other proceeding, the court may require or permit the custodial trustee or the custodial trustee's legal representative to account. The custodial trustee or the custodial trustee's legal representative may petition the court for approval of final accounts.

(e) If a custodial trustee is removed, the court shall require an accounting and order delivery of the custodial trust property and records to the successor custodial trustee and the execution of all instruments required for transfer of the custodial trust property.

(f) On petition of the custodial trustee or any person who could petition for an accounting, the court, after notice to interested persons, may issue instructions to the custodial trustee or review the propriety of the acts of a custodial trustee or the reasonableness of compensation determined by the custodial trustee for the services of the custodial trustee or others.

Source:Laws 1997, LB 51, § 16.

30-3517. Limitations of action against custodial trustee.

(a) Except as provided in subsections (b) and (c) of this section, unless previously barred by adjudication, consent, or limitation, a claim for relief against a custodial trustee for accounting or breach of duty is barred as to a beneficiary, a person to whom custodial trust property is to be paid or delivered, or the legal representative of an incapacitated or deceased beneficiary or payee:

(1) Who has received a final account or statement fully disclosing the matter unless an action or proceeding to assert the claim is commenced within six months after receipt of the final account or statement; or

(2) Who has not received a final account or statement fully disclosing the matter unless an action or proceeding to assert the claim is commenced within four years after the termination of the custodial trust.

(b) Except as provided in subsection (c) of this section, a claim for relief to recover from a custodial trustee for fraud, misrepresentation, or concealment related to the final settlement of the custodial trust or concealment of the existence of the custodial trust is barred unless an action or proceeding to assert the claim is commenced within five years after the termination of the custodial trust.

(1) Is a minor, until the earlier of two years after the claimant becomes an adult or dies;

(2) Is an incapacitated adult, until the earliest of two years after (i) the appointment of a conservator, (ii) the removal of the incapacity, or (iii) the death of the claimant; or

(3) Was an adult, now deceased, who was not incapacitated at the time of his or her death, until two years after the claimant's death.

(d) For purposes of this section, a beneficiary or other person is deemed to have received an account or statement if, being an adult, it is received by him or her personally or if, being a minor or incapacitated person, it is received by his or her representative as described in subdivision (3) of section 30-2222.

Source:Laws 1997, LB 51, § 17.

30-3518. Distribution on termination.

(a) Upon termination of a custodial trust, the custodial trustee shall transfer the unexpended custodial trust property:

(1) To the beneficiary, if not incapacitated or deceased;

(2) To the holder of the beneficiary's power of attorney;

(3) To the conservator or other recipient designated by the court for an incapacitated beneficiary; or

(4) Upon the beneficiary's death, in the following order:

(i) As last directed in a writing signed by the deceased beneficiary while not incapacitated and received by the custodial trustee during the life of the deceased beneficiary;

(ii) To the survivor of multiple beneficiaries if survivorship is provided for pursuant to section 30-3507;

(iii) As designated in the instrument creating the custodial trust; or

(iv) To the estate of the deceased beneficiary.

(b) If, when the custodial trust would otherwise terminate, the distributee is incapacitated, the custodial trust continues for the use and benefit of the distributee as beneficiary until the incapacity is removed or the custodial trust is otherwise terminated.

(c) Death of a beneficiary does not terminate the power of the custodial trustee to discharge obligations of the custodial trustee or beneficiary incurred before the termination of the custodial trust.

Source:Laws 1997, LB 51, § 18; Laws 1999, LB 62, § 3.

30-3519. Methods and forms for creating custodial trusts.

(a) If a transaction, including a declaration with respect to or a transfer of specific property, otherwise satisfies applicable law, the criteria of section 30-3503 are satisfied by:

(1) The execution and either delivery to the custodial trustee or recording of an instrument in substantially the following form:

TRANSFER UNDER THE NEBRASKA

UNIFORM CUSTODIAL TRUST ACT

I, ........... (name of transferor or name and representative capacity if a fiduciary), transfer to ............ (name of trustee other than transferor), as custodial trustee for ............ (name of beneficiary) as beneficiary and ............ as distributee on termination of the trust in absence of direction by the beneficiary under the Nebraska Uniform Custodial Trust Act, the following: (Insert a description of the custodial trust property legally sufficient to identify and transfer each item of property).

Dated: ......................................

...........................................

(Signature); or

(2) The execution and the recording or giving notice of its execution to the beneficiary of an instrument in substantially the following form:

DECLARATION OF TRUST UNDER THE NEBRASKA

UNIFORM CUSTODIAL TRUST ACT

I, ............ (name of owner of property), declare that henceforth I hold as custodial trustee for ............ (name of beneficiary other than transferor) as beneficiary and ............ as distributee on termination of the trust in absence of direction by the beneficiary under the Nebraska Uniform Custodial Trust Act, the following: (Insert a description of the custodial trust property legally sufficient to identify and transfer each item of property).

Dated: ..........................

.................................

(Signature)

(b) Customary methods of transferring or evidencing ownership of property may be used to create a custodial trust, including any of the following:

(1) Registration of a security in the name of a trust company, an adult other than the transferor, or the transferor if the beneficiary is other than the transferor, designated in substance: "as custodial trustee for ............ (name of beneficiary) under the Nebraska Uniform Custodial Trust Act";

(2) Delivery of a certificated security, or a document necessary for the transfer of an uncertificated security, together with any necessary endorsement, to an adult other than the transferor or to a trust company as custodial trustee, accompanied by an instrument in substantially the form prescribed in subdivision (a)(1) of this section;

(3) Payment of money or transfer of a security held in the name of a broker or a financial institution or its nominee to a broker or financial institution for credit to an account in the name of a trust company, an adult other than the transferor, or the transferor if the beneficiary is other than the transferor, designated in substance: "as custodial trustee for .............. (name of beneficiary) under the Nebraska Uniform Custodial Trust Act";

(4) Registration of ownership of a life or endowment insurance policy or annuity contract with the issuer in the name of a trust company, an adult other than the transferor, or the transferor if the beneficiary is other than the transferor, designated in substance: "as custodial trustee for ............ (name of beneficiary) under the Nebraska Uniform Custodial Trust Act";

(5) Delivery of a written assignment to an adult other than the transferor or to a trust company whose name in the assignment is designated in substance by the words: "as custodial trustee for ............ (name of beneficiary) under the Nebraska Uniform Custodial Trust Act";

(6) Irrevocable exercise of a power of appointment, pursuant to its terms, in favor of a trust company, an adult other than the donee of the power, or the donee who holds the power if the beneficiary is other than the donee, whose name in the appointment is designated in substance: "as custodial trustee for ............ (name of beneficiary) under the Nebraska Uniform Custodial Trust Act";

(7) Delivery of a written notification or assignment of a right to future payment under a contract to an obligor which transfers the right under the contract to a trust company, an adult other than the transferor, or the transferor if the beneficiary is other than the transferor, whose name in the notification or assignment is designated in substance: "as custodial trustee for .......... (name of beneficiary) under the Nebraska Uniform Custodial Trust Act";

(8) Execution, delivery, and recordation of a conveyance of an interest in real property in the name of a trust company, an adult other than the transferor, or the transferor if the beneficiary is other than the transferor, designated in substance: "as custodial trustee for .......... (name of beneficiary) under the Nebraska Uniform Custodial Trust Act";

(9) Issuance of a certificate of title by an agency of a state or of the United States which evidences title to tangible personal property:

(i) Issued in the name of a trust company, an adult other than the transferor, or the transferor if the beneficiary is other than the transferor, designated in substance: "as custodial trustee for ............ (name of beneficiary) under the Nebraska Uniform Custodial Trust Act"; or

(ii) Delivered to a trust company or an adult other than the transferor or endorsed by the transferor to that person, designated in substance: "as custodial trustee for ............ (name of beneficiary) under the Nebraska Uniform Custodial Trust Act"; or

(10) Execution and delivery of an instrument of gift to a trust company or an adult other than the transferor, designated in substance: "as custodial trustee for ............ (name of beneficiary) under the Nebraska Uniform Custodial Trust Act".

Source:Laws 1997, LB 51, § 19; Laws 1999, LB 62, § 4.

30-3520. Applicability of act.

(a) The Nebraska Uniform Custodial Trust Act applies to a transfer or declaration creating a custodial trust that refers to the act if, at the time of the transfer or declaration, the transferor, beneficiary, or custodial trustee is a resident of or has its principal place of business in this state or custodial trust property is located in this state. The custodial trust remains subject to the act despite a later change in residence or principal place of business of the transferor, beneficiary, or custodial trustee, or removal of the custodial trust property from this state.

(b) A transfer made pursuant to an act of another state substantially similar to the Nebraska Uniform Custodial Trust Act is governed by the law of that state and may be enforced in this state.

Source:Laws 1997, LB 51, § 20.

30-3521. Custodial trust; aggregate value; limitation.

Transfers or declarations of property to a custodial trust under the Nebraska Uniform Custodial Trust Act shall not exceed, in the aggregate, one hundred thousand dollars in net value, exclusive of the value of the transferor's or declarant's personal residence. This limitation does not apply to any income received by the custodial trust and any appreciation in the value of the property held in the custodial trust. A good faith violation of this section does not invalidate the custodial trust.

Source:Laws 1997, LB 51, § 21.

30-3522. Act; application and construction.

The Nebraska Uniform Custodial Trust Act shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of the act among states enacting it.

Source:Laws 1997, LB 51, § 22.

30-3601. Act, how cited.

Sections 30-3601 to 30-3604 shall be known and may be cited as the Uniform Testamentary Additions to Trusts Act (1991).

Source:Laws 1999, LB 18, § 1.

30-3602. Testamentary additions to trusts.

(a) A will may validly devise or bequeath property to the trustee of a trust established or to be established (i) during the testator's lifetime by the testator, by the testator and some other person, or by some other person including a funded or unfunded life insurance trust, although the trustor has reserved any or all rights of ownership of the insurance contracts, or (ii) at the testator's death by the testator's devise to the trustee, if the trust is identified in the testator's will and its terms are set forth in a written instrument, other than a will, executed before, concurrently with, or after the execution of the testator's will or in another individual's will if that other individual has predeceased the testator, regardless of the existence, size, or character of the corpus of the trust. The devise or bequest is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or the testator's death.

(b) Unless the testator's will provides otherwise, property devised or bequeathed to a trust described in subsection (a) is not held under a testamentary trust of the testator but it becomes a part of the trust to which it is devised or bequeathed, and must be administered and disposed of in accordance with the provisions of the governing instrument setting forth the terms of the trust, including any amendments thereto made before or after the testator's death.

(c) Unless the testator's will provides otherwise, a revocation or termination of the trust before the testator's death causes the devise or bequest to lapse.

Source:Laws 1974, LB 354, § 58, UPC § 2-511; R.S.1943, (1995), § 30-2336; Laws 1999, LB 18, § 2.

30-3603. Act; applicability.

The Uniform Testamentary Additions to Trusts Act (1991) applies to a will of a testator who dies on or after August 28, 1999.

Source:Laws 1999, LB 18, § 3.

30-3604. Act; how construed.

The Uniform Testamentary Additions to Trusts Act (1991) shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of the act among states enacting it.

Source:Laws 1999, LB 18, § 4.

30-3701. Transferred to section 30-38,102.

30-3702. Transferred to section 30-38,103.

30-3703. Transferred to section 30-38,104.

30-3704. Transferred to section 30-38,105.

30-3705. Transferred to section 30-38,106.

30-3706. Transferred to section 30-38,107.

30-3801. (UTC 101) Code, how cited.

(UTC 101) Sections 30-3801 to 30-38,115 shall be known and may be cited as the Nebraska Uniform Trust Code.

Source:Laws 2003, LB 130, § 1; Laws 2024, LB1074, § 74.
Operative Date: July 19, 2024

Annotations

The Nebraska Uniform Trust Code statutes are derived from the Restatement (Third) of Trusts. In re William R. Zutavern Revocable Trust, 309 Neb. 542, 961 N.W.2d 807 (2021).

30-3802. (UTC 102) Scope.

(UTC 102) The Nebraska Uniform Trust Code applies to express trusts, charitable or noncharitable, and trusts created pursuant to a statute, judgment, or decree that requires the trust to be administered in the manner of an express trust.

Source:Laws 2003, LB 130, § 2.

Annotations

It is clear from the plain language of this section that resulting and constructive trusts are not governed by the Nebraska Uniform Trust Code. Washington v. Conley, 273 Neb. 908, 734 N.W.2d 306 (2007).

30-3803. (UTC 103) Definitions.

(UTC 103) In the Nebraska Uniform Trust Code:

(1) "Action", with respect to an act of a trustee, includes a failure to act.

(2) "Ascertainable standard" means a standard relating to an individual's health, education, support, or maintenance within the meaning of section 2041(b)(1)(A) or 2514(c)(1) of the Internal Revenue Code of 1986, as defined in section 49-801.01.

(3) "Beneficiary" means a person that:

(A) has a present or future beneficial interest in a trust, vested or contingent; or

(B) in a capacity other than that of trustee, holds a power of appointment over trust property.

(4) "Charitable trust" means a trust, or portion of a trust, created for a charitable purpose described in subsection (a) of section 30-3831.

(5) "Conservator" means a person appointed by the court to administer the estate of a minor or adult individual.

(6) "Environmental law" means a federal, state, or local law, rule, regulation, or ordinance relating to protection of the environment.

(7) "Guardian" means a person who has qualified as a guardian of a minor or incapacitated person pursuant to testamentary or court appointment, but excludes one who is merely a guardian ad litem.

(8) "Interests of the beneficiaries" means the beneficial interests provided in the terms of the trust.

(9) "Jurisdiction", with respect to a geographic area, includes a state or country.

(10) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; public corporation, or any other legal or commercial entity.

(11) "Power of withdrawal" means a presently exercisable general power of appointment other than a power: (A) which is exercisable by a trustee and limited by an ascertainable standard; or (B) which is exercisable by another person only upon consent of the trustee or a person holding an adverse interest.

(12) "Property" means anything that may be the subject of ownership, whether real or personal, legal or equitable, or any interest therein.

(13) "Qualified beneficiary" means a beneficiary who, on the date the beneficiary's qualification is determined:

(A) is a distributee or permissible distributee of trust income or principal;

(B) would be a distributee or permissible distributee of trust income or principal if the interests of the distributees described in subdivision (A) of this subdivision terminated on that date without causing the trust to terminate; or

(14) "Regulated financial-service institution" means a state-chartered or federally chartered financial institution in which the monetary deposits are insured by the Federal Deposit Insurance Corporation.

(15) "Revocable", as applied to a trust, means revocable by the settlor without the consent of the trustee or a person holding an adverse interest.

(16) "Settlor" means a person, including a testator, who creates, or contributes property to, a trust. If more than one person creates or contributes property to a trust, each person is a settlor of the portion of the trust property attributable to that person's contribution except to the extent another person has the power to revoke or withdraw that portion.

(17) "Spendthrift provision" means a term of a trust which restrains both voluntary and involuntary transfer of a beneficiary's interest.

(18) "State" includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States.

(19) "Terms of a trust" means the manifestation of the settlor's intent regarding a trust's provisions as expressed in the trust instrument or as may be established by other evidence that would be admissible in a judicial proceeding.

(20) "Trust instrument" means an instrument executed by the settlor that contains terms of the trust, including any amendments thereto.

(21) "Trustee" includes an original, additional, and successor trustee, and a cotrustee.

Source:Laws 2003, LB 130, § 3; Laws 2005, LB 533, § 36.

Annotations

"Beneficiary" is defined as a person or class of persons that has a present or future beneficial interest in a trust, vested or contingent. The fact that a member of the class may ultimately take nothing does not prevent that beneficiary from maintaining suit; each of the beneficiaries of such a trust is in this position, for if none could sue, the trustee might commit a breach of trust with impunity. In re William R. Zutavern Revocable Trust, 309 Neb. 542, 961 N.W.2d 807 (2021).

Where a trust agreement provided limited testamentary power to appoint trust property to or for the benefit of joint descendants, the power of appointment was neither a general power of appointment nor a power of withdrawal. In re Conservatorship of Abbott, 295 Neb. 510, 890 N.W.2d 469 (2017).

When the parties do not claim that the terms are unclear or contrary to the settlor's actual intent pursuant to subsection (19) of this section, the interpretation of a trust's terms is a question of law. In re Trust Created by Hansen, 274 Neb. 199, 739 N.W.2d 170 (2007).

30-3804. (UTC 104) Knowledge.

(UTC 104) (a) Subject to subsection (b) of this section, a person has knowledge of a fact if the person:

(1) has actual knowledge of it;

(2) has received a notice or notification of it; or

(3) from all the facts and circumstances known to the person at the time in question, has reason to know it.

(b) An organization that conducts activities through employees has notice or knowledge of a fact involving a trust only from the time the information was received by an employee having responsibility to act for the trust, or would have been brought to the employee's attention if the organization had exercised reasonable diligence. An organization exercises reasonable diligence if it maintains reasonable routines for communicating significant information to the employee having responsibility to act for the trust and there is reasonable compliance with the routines. Reasonable diligence does not require an employee of the organization to communicate information unless the communication is part of the individual's regular duties or the individual knows a matter involving the trust would be materially affected by the information.

Source:Laws 2003, LB 130, § 4.

30-3805. (UTC 105) Default and mandatory rules.

(UTC 105) (a) Except as otherwise provided in the terms of the trust, the Nebraska Uniform Trust Code governs the duties and powers of a trustee, relations among trustees, and the rights and interests of a beneficiary.

(b) The terms of a trust prevail over any provision of the code except:

(1) the requirements for creating a trust;

(2) subject to sections 30-4309, 30-4311, and 30-4312, the duty of a trustee to act in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries;

(3) the requirement that a trust and its terms be for the benefit of its beneficiaries, and that the trust have a purpose that is lawful, not contrary to public policy, and possible to achieve;

(4) the power of the court to modify or terminate a trust under sections 30-3836 to 30-3842;

(5) the effect of a spendthrift provision and the rights of certain creditors and assignees to reach a trust as provided in sections 30-3846 to 30-3852;

(6) the power of the court under section 30-3858 to require, dispense with, or modify or terminate a bond;

(7) the power of the court under subsection (b) of section 30-3864 to adjust a trustee's compensation specified in the terms of the trust;

(8) the duty under subsection (a) of section 30-3878 to keep the qualified beneficiaries of the trust reasonably informed about the administration of the trust and of the material facts necessary for them to protect their interests, and to respond to the request of a qualified beneficiary of an irrevocable trust for trustee's reports and other information reasonably related to the administration of a trust;

(9) the effect of an exculpatory term under section 30-3897;

(10) the rights under sections 30-3899 to 30-38,107 of a person other than a trustee or beneficiary;

(11) periods of limitation for commencing a judicial proceeding;

(12) the power of the court to take such action and exercise such jurisdiction as may be necessary in the interests of justice;

(13) the subject matter jurisdiction of the court and venue for commencing a proceeding as provided in sections 30-3814 and 30-3815;

(14) the power of a court under subdivision (a)(1) of section 30-3807; and

(15) the power of a court to review the action or the proposed action of the trustee for an abuse of discretion.

Source:Laws 2003, LB 130, § 5; Laws 2005, LB 533, § 37; Laws 2007, LB124, § 22; Laws 2019, LB536, § 20.

Annotations

A reasonable person acting in good faith and in the interests of the beneficiaries would not wait until an annual report was due before informing the beneficiaries that the trust assets were in danger of being lost, but would instead inform the beneficiaries of the material facts immediately in order to allow them to protect their interests. Rafert v. Meyer, 290 Neb. 219, 859 N.W.2d 332 (2015).

An attorney's duty to report any danger to the trust property becomes immediate when he or she knows or should know that such danger exists rather than when an annual report is due. Rafert v. Meyer, 290 Neb. 219, 859 N.W.2d 332 (2015).

In drafting a trust, an attorney cannot abrogate his or her duty to administer the trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries, and in accordance with the Nebraska Uniform Trust Code. Rafert v. Meyer, 290 Neb. 219, 859 N.W.2d 332 (2015).

In drafting a trust, an attorney cannot abrogate his or her duty under this section to keep beneficiaries of the trust reasonably informed of the material facts necessary for them to protect their interests. Rafert v. Meyer, 290 Neb. 219, 859 N.W.2d 332 (2015).

The beneficiaries alleged sufficient facts for a court to find that the trustee acted in bad faith or reckless indifference to the purposes of the trust or the interests of the beneficiaries by providing a false address to the insurers of life insurance policies, which were the sole trust property. Rafert v. Meyer, 290 Neb. 219, 859 N.W.2d 332 (2015).

The Nebraska Uniform Trust Code provides deference to the terms of the trust, but that deference does not extend to those duties described in this section or otherwise required by statute. Rafert v. Meyer, 290 Neb. 219, 859 N.W.2d 332 (2015).

30-3806. (UTC 106) Common law of trusts; principles of equity.

(UTC 106) The common law of trusts and principles of equity supplement the Nebraska Uniform Trust Code, except to the extent modified by the code or another statute of this state.

Source:Laws 2003, LB 130, § 6.

Annotations

The right of retainer of a distribution is a valid, equitable remedy available to trustees of trusts. In re Trust of Hrnicek, 280 Neb. 898, 792 N.W.2d 143 (2010).

30-3807. (UTC 107) Governing law.

(UTC 107) (a) Except as provided in subsection (b) of this section, the meaning and effect of the terms of a trust are determined by:

(1) the law of the jurisdiction designated in the terms unless the designation of that jurisdiction's law is contrary to a strong public policy of the jurisdiction having the most significant relationship to the matter at issue; or

(2) in the absence of a controlling designation in the terms of the trust, the law of the jurisdiction having the most significant relationship to the matter at issue.

(b) The meaning and effect of the terms of a trust that pertain to title to Nebraska real estate are determined by the law of Nebraska.

Source:Laws 2003, LB 130, § 7.

30-3808. (UTC 108) Principal place of administration.

(UTC 108) (a) Without precluding other means for establishing a sufficient connection with the designated jurisdiction, terms of a trust designating the principal place of administration are valid and controlling if:

(1) a trustee's principal place of business is located in or a trustee is a resident of the designated jurisdiction;

(2) all or part of the administration occurs in the designated jurisdiction; or

(3) a trust director's principal place of business is located in or a trust director is a resident of the designated jurisdiction.

(b) A trustee is under a continuing duty to administer the trust at a place appropriate to its purposes, its administration, and the interests of the beneficiaries.

(c) Without precluding the right of the court to order, approve, or disapprove a transfer, the trustee, in furtherance of the duty prescribed by subsection (b) of this section, may transfer the trust's principal place of administration to another state or to a jurisdiction outside of the United States.

(d) The trustee shall notify the qualified beneficiaries of a proposed transfer of a trust's principal place of administration not less than sixty days before initiating the transfer. The notice of proposed transfer must include:

(1) the name of the jurisdiction to which the principal place of administration is to be transferred;

(2) the address and telephone number at the new location at which the trustee can be contacted;

(3) an explanation of the reasons for the proposed transfer;

(4) the date on which the proposed transfer is anticipated to occur; and

(5) the date, not less than sixty days after the giving of the notice, by which the qualified beneficiary must notify the trustee of an objection to the proposed transfer.

(e) The authority of a trustee under this section to transfer a trust's principal place of administration terminates if a qualified beneficiary notifies the trustee of an objection to the proposed transfer on or before the date specified in the notice.

(f) In connection with a transfer of the trust's principal place of administration, the trustee may transfer some or all of the trust property to a successor trustee designated in the terms of the trust or appointed pursuant to section 30-3860.

Source:Laws 2003, LB 130, § 8; Laws 2019, LB536, § 21.

30-3809. (UTC 109) Methods and waiver of notice.

(UTC 109) (a) Notice to a person under the Nebraska Uniform Trust Code or the sending of a document to a person under the code must be accomplished in a manner reasonably suitable under the circumstances and likely to result in receipt of the notice or document. Permissible methods of notice or for sending a document include first-class mail, personal delivery, delivery to the person's last-known place of residence or place of business, or a properly directed electronic message.

(b) Notice otherwise required under the code or a document otherwise required to be sent under the code need not be provided to a person whose identity or location is unknown to and not reasonably ascertainable by the trustee.

(c) Notice under the code or the sending of a document under the code may be waived by the person to be notified or sent the document.

(d) Notice of a judicial proceeding may be given as provided in the applicable rules of civil procedure or as in section 30-2220.

Source:Laws 2003, LB 130, § 9.

30-3810. (UTC 110) Others treated as qualified beneficiaries.

(UTC 110) (a) Whenever notice to qualified beneficiaries of a trust is required under the Nebraska Uniform Trust Code, the trustee must also give notice to any other beneficiary who has sent the trustee a request for notice.

(b) A charitable organization expressly designated to receive distributions under the terms of a charitable trust has the rights of a qualified beneficiary under the code if the charitable organization, on the date the charitable organization's qualification is being determined:

(1) is a distributee or permissible distributee of trust income or principal;

(2) would be a distributee or permissible distributee of trust income or principal upon the termination of the interests of other distributees or permissible distributees then receiving or eligible to receive distributions; or

(3) would be a distributee or permissible distributee of trust income or principal if the trust terminated on that date.

(c) A person appointed to enforce a trust created for the care of an animal or another noncharitable purpose as provided in section 30-3834 or 30-3835 has the rights of a qualified beneficiary under the code.

(d) The Attorney General has the rights of a qualified beneficiary with respect to a charitable trust having its principal place of administration in this state.

Source:Laws 2003, LB 130, § 10; Laws 2005, LB 533, § 38.

30-3811. (UTC 111) Nonjudicial settlement agreements.

(UTC 111) (a) For purposes of this section, "interested persons" means persons whose consent would be required in order to achieve a binding settlement were the settlement to be approved by the court.

(b) Except as otherwise provided in subsection (c) of this section, interested persons may enter into a binding nonjudicial settlement agreement with respect to any matter involving a trust.

(c) A nonjudicial settlement agreement is valid only to the extent it does not violate a material purpose of the trust and includes terms and conditions that could be properly approved by the court under the Nebraska Uniform Trust Code or other applicable law. A spendthrift provision in the terms of the trust is presumed to constitute a material purpose of the trust.

(d) Matters that may be resolved by a nonjudicial settlement agreement include:

(1) the interpretation or construction of the terms of the trust;

(2) the approval of a trustee's report or accounting;

(3) direction to a trustee to refrain from performing a particular act or the grant to a trustee of any necessary or desirable power;

(4) the resignation or appointment of a trustee and the determination of a trustee's compensation;

(5) transfer of a trust's principal place of administration; and

(6) liability of a trustee for an action relating to the trust.

(e) Any interested person may request the court to approve a nonjudicial settlement agreement, to determine whether the representation as provided in sections 30-3822 to 30-3826 was adequate, and to determine whether the agreement contains terms and conditions the court could have properly approved.

Source:Laws 2003, LB 130, § 11; Laws 2004, LB 999, § 24.

Annotations

A nonjudicial settlement agreement is valid only to the extent it does not violate a material purpose of the trust. A spendthrift provision in the terms of the trust is presumed to constitute a material purpose of the trust. In re Trust Created by McGregor, 308 Neb. 405, 954 N.W.2d 612 (2021).

Changes made to an irrevocable trust by a nonjudicial settlement agreement between the surviving spouse and her two children, which provided for distribution of the trust's assets upon the spouse's death free of trust, violated a "material purpose" of the trust established by its spendthrift provisions, and thus made the agreement invalid. In re Trust Created by McGregor, 308 Neb. 405, 954 N.W.2d 612 (2021).

If the continuance of a trust is necessary to carry out a material purpose of the trust, the beneficiaries cannot compel its termination. In re Trust Created by McGregor, 308 Neb. 405, 954 N.W.2d 612 (2021).

The material purposes of a trust are subject to the settlor's discretion, to the extent that its purposes are lawful, are not contrary to public policy, are possible to achieve, and are for the benefit of its beneficiaries. In re Trust Created by McGregor, 308 Neb. 405, 954 N.W.2d 612 (2021).

30-3812. (UTC 201) Role of court in administration of trust.

(UTC 201) (a) The court may intervene in the administration of a trust to the extent its jurisdiction is invoked by an interested person or as provided by law.

(b) A trust is not subject to continuing judicial supervision unless ordered by the court.

(c) A judicial proceeding involving a trust may relate to any matter involving the trust's administration, including a request for instructions and an action to declare rights.

Source:Laws 2003, LB 130, § 12.

Annotations

A beneficiary of property left to a trust has standing to raise the trustee's self-dealing and to seek damages, an accounting, and a constructive trust. In re Estate of Hedke, 278 Neb. 727, 775 N.W.2d 13 (2009).

The remainder beneficiaries' motion for a declaration of rights was construed as a request for the court to instruct the trustee on its duties and powers when they asked the county court to decide whether the trustee could pay the billings for the beneficiary's last-illness expenses and, if so, what standards should be applied. In re Trust Created by Hansen, 274 Neb. 199, 739 N.W.2d 170 (2007).

This section does not limit to trustees the right to seek instructions from the court. In re Trust Created by Hansen, 274 Neb. 199, 739 N.W.2d 170 (2007).

30-3813. (UTC 202) Jurisdiction over trustee and beneficiary.

(UTC 202) (a) By accepting the trusteeship of a trust having its principal place of administration in this state or by moving the principal place of administration to this state, the trustee submits personally to the jurisdiction of the courts of this state regarding any matter involving the trust.

(b) With respect to their interests in the trust, the beneficiaries of a trust having its principal place of administration in this state are subject to the jurisdiction of the courts of this state regarding any matter involving the trust. By accepting a distribution from such a trust, the recipient submits personally to the jurisdiction of the courts of this state regarding any matter involving the trust.

(c) This section does not preclude other methods of obtaining jurisdiction over a trustee, beneficiary, or other person receiving property from the trust.

Source:Laws 2003, LB 130, § 13.

30-3814. Subject-matter jurisdiction.

(a) To the full extent permitted by the Constitution of Nebraska, the county court has jurisdiction over all subject matter relating to trusts.

(b) The county court has full power to make orders, judgments, and decrees and take all other action necessary and proper to administer justice in the matters which come before it.

(d) Petitions for formal orders of the court may combine various requests for relief in a single proceeding if the orders sought may be finally granted without delay. Except as required for proceedings which are particularly described by other sections of the Nebraska Uniform Trust Code, no petition is defective because it fails to embrace all matters which might then be the subject of a final order.

(e) A proceeding for appointment of a trustee is concluded by an order making or declining the appointment.

(f) For purposes of this section, "proceeding" includes action at law and suit in equity.

Source:Laws 2003, LB 130, § 14.

Annotations

A proceeding initiated under this section and section 30-3862 to remove a trustee is a special proceeding within the meaning of section 25-1902. In re Trust of Rosenberg, 269 Neb. 310, 693 N.W.2d 500 (2005).

30-3815. (UTC 204) Venue.

(UTC 204) (a) Except as otherwise provided in subsections (b) and (c) of this section, venue for a judicial proceeding involving a trust is in the county of this state in which the trust's principal place of administration is or will be located and, if the trust is created by will and the estate is not yet closed, in the county in which the decedent's estate is being administered.

(b) Except as provided in subsection (c) of this section, if a trust has no trustee, venue for a judicial proceeding for the appointment of a trustee is in a county of this state in which a beneficiary resides, in a county in which any trust property is located, in a county in which the trust's principal place of administration was located before a vacancy in the office of trustee occurred, and if the trust is created by will, in the county in which the decedent's estate was or is being administered.

(c) If a trust is registered in Nebraska, unless the registration has been released, the venue is in the court in which the trust is registered, even if there is no trustee.

(d)(i) Where a proceeding under the Nebraska Uniform Trust Code could be maintained in more than one place in this state, the court in which the proceeding is first commenced has the exclusive right to proceed.

(ii) If proceedings concerning the same trust are commenced in more than one court of this state, the court in which the proceeding was first commenced shall continue to hear the matter, and the other courts shall hold the matter in abeyance until the question of venue is decided, and if the ruling court determines that venue is properly in another court, it shall transfer the proceeding to the other court.

(iii) If a court finds that in the interest of justice a proceeding or a file should be located in another court of this state, the court making the finding may transfer the proceeding or file to the other court.

Source:Laws 2003, LB 130, § 15.

30-3816. Duty to register trusts.

(1) The trustee of a trust having its principal place of administration in this state may register the trust in the county court of this state at the principal place of administration. Unless otherwise designated in the trust instrument, the principal place of administration of a trust is the trustee's usual place of business where the records pertaining to the trust are kept, or at the trustee's residence if he or she has no such place of business.

(2) In the case of cotrustees, the principal place of administration, if not otherwise designated in the trust instrument, is (a) the usual place of business of the corporate trustee if there is one corporate cotrustee, (b) the usual place of business or residence of the individual trustee who is a professional fiduciary if there is one such person and no corporate cotrustee, and (c) the usual place of business or residence of any of the cotrustees as agreed upon by such cotrustees.

(3) If there is more than one trustee, any trustee may register the trust in the county in which the principal place of administration is located under subsection (2). If the principal place of administration is determined under subdivision (2)(c) and the cotrustees cannot agree on the principal place of administration, a proceeding may be filed under section 30-3812 by any interested person to determine the principal place of administration.

(4) The right to register under sections 30-3816 to 30-3820 does not apply to the trustee of a trust if registration would be inconsistent with the retained jurisdiction of a foreign court from which the trustee cannot obtain release.

(5) No one other than a trustee shall register a trust. Registration of a trust is not required in order for a court to exercise jurisdiction over a trust, a trustee, or the beneficiaries.

Source:Laws 1974, LB 354, § 296, UPC § 7-101; R.S.1943, (1995), § 30-2801; Laws 2003, LB 130, § 16; Laws 2024, LB1195, § 7.
Effective Date: July 19, 2024

Annotations

When a person has been removed as trustee of a trust, that person no longer has standing under this section to register the trust in Nebraska. In re Trust Created by Del Castillo, 268 Neb. 671, 686 N.W.2d 900 (2004).

Where principal place of administration of testamentary trust was in Iowa, trust could not have been registered in Nebraska under this section. Raynor v. Northwestern National Bank, 211 Neb. 119, 317 N.W.2d 786 (1982).

30-3817. Registration procedures.

Registration shall be accomplished by filing a statement indicating the name and address of the trustee in which it acknowledges the trusteeship. The statement shall indicate whether the trust has been registered elsewhere. The statement shall identify the trust: (1) in the case of a testamentary trust, by the name of the testator and the date and place of domiciliary probate; (2) in the case of a written inter vivos trust, by the name of each settlor and the original trustee and the date of the trust instrument; or (3) in the case of an oral trust, by information identifying the settlor or other source of funds and describing the time and manner of the trust's creation and the terms of the trust, including the subject matter, beneficiaries, and time of performance.

Source:Laws 1974, LB 354, § 297, UPC § 7-102; R.S.1943, (1995), § 30-2802; Laws 2003, LB 130, § 17.

30-3818. Clerk of court; records.

The clerk of court shall keep a record for each trust involved in any document which may be filed with the court under sections 30-3816 to 30-3820, including petitions and applications, trust registrations, and of any orders or responses relating thereto by the court, and establish and maintain a system for indexing, filing, or recording which is sufficient to enable users of the records to obtain adequate information. Upon payment of the fees required by law, the clerk must issue certified copies of any record or paper filed or recorded.

Source:Laws 2003, LB 130, § 18.

30-3819. Effect of registration.

(a) By registering a trust, or accepting the trusteeship of a registered trust, the trustee submits personally to the jurisdiction of the court of registration in any proceeding under section 30-3812 relating to the trust that may be initiated by any interested person while the trust remains registered. Notice of any proceeding shall be delivered to the trustee or mailed to him or her by ordinary first-class mail at his or her address as listed in the registration or as thereafter reported to the court and to his or her address as then known to the petitioner.

(b) To the extent of their interests in the trust, all beneficiaries of a trust properly registered in this state are subject to the jurisdiction of the court of registration for the purposes of proceedings under section 30-3812, provided notice is given pursuant to section 30-2220.

Source:Laws 1974, LB 354, § 298, UPC § 7-103; R.S.1943, (1995), § 30-2803; Laws 2003, LB 130, § 19.

Annotations

The act of registering a trust gives the county court jurisdiction over the interests of all notified beneficiaries to decide issues related to any matter involving the trust's administration, including a request for instructions or an action to declare rights. In re Trust Created by Hansen, 274 Neb. 199, 739 N.W.2d 170 (2007).

Under this section, the county court of Dakota County, Nebraska, could not acquire jurisdiction of a trust having principal place of administration in Iowa since the trust could not be registered in Nebraska under section 30-2801. Raynor v. Northwestern National Bank, 211 Neb. 119, 317 N.W.2d 786 (1982).

30-3820. Registration, qualification of foreign trustee.

A foreign corporate trustee is required to qualify as a foreign corporation doing business in this state if it maintains the principal place of administration of any trust within the state. A foreign cotrustee is not required to qualify in this state solely because its cotrustee maintains the principal place of administration in this state. Unless otherwise doing business in this state, local qualification by a foreign trustee, corporate or individual, is not required in order for the trustee to receive distribution from a local estate or to hold, invest in, manage, or acquire property located in this state, or maintain litigation if the laws of the state of incorporation or residence of the foreign trustee grant the same authority to a trustee incorporated or resident in this state. Nothing in this section affects a determination of what other acts require qualification as doing business in this state.

Source:Laws 1974, LB 354, § 300, UPC § 7-105; R.S.1943, (1995), § 30-2805; Laws 2003, LB 130, § 20.

30-3821. Appellate review.

Appellate review under the Nebraska Uniform Trust Code shall be governed by section 30-1601.

Source:Laws 2003, LB 130, § 21.

30-3822. (UTC 301) Representation; basic effect.

(UTC 301) (a) Notice to a person who may represent and bind another person under sections 30-3822 to 30-3826 has the same effect as if notice were given directly to the other person.

(b) The consent of a person who may represent and bind another person under sections 30-3822 to 30-3826 is binding on the person represented unless the person represented objects to the representation before the consent would otherwise have become effective.

(c) Except as otherwise provided in sections 30-3837 and 30-3854, a person who under sections 30-3822 to 30-3826 may represent a settlor who lacks capacity may receive notice and give a binding consent on the settlor's behalf.

(d) A settlor may not represent and bind a beneficiary under sections 30-3822 to 30-3826 with respect to the termination or modification of a trust under subsection (a) of section 30-3837.

Source:Laws 2003, LB 130, § 22; Laws 2005, LB 533, § 39.

30-3823. (UTC 302) Holder of power of appointment or power to terminate an interest.

(UTC 302) The holder of a power of appointment or other power to terminate an interest may represent and bind persons whose interests, as permissible appointees, takers in default, or otherwise, are subject to the power.

Source:Laws 2003, LB 130, § 23; Laws 2013, LB38, § 1.

30-3824. (UTC 303) Representation by fiduciaries and parents.

(UTC 303) To the extent there is no conflict of interest between the representative and the person represented or among those being represented with respect to a particular question or dispute:

(1) a conservator may represent and bind the estate that the conservator controls;

(2) a guardian may represent and bind the ward if a conservator of the ward's estate has not been appointed;

(3) an agent having authority to act with respect to the particular question or dispute may represent and bind the principal;

(4) a trustee may represent and bind the beneficiaries of the trust;

(5) a personal representative of a decedent's estate may represent and bind persons interested in the estate; and

(6) a parent may represent and bind the parent's minor or unborn child if a conservator or guardian for the child has not been appointed.

Source:Laws 2003, LB 130, § 24.

30-3825. (UTC 304) Representation by person having substantially identical interest.

(UTC 304) Unless otherwise represented, a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown and not reasonably ascertainable, may be represented by and bound by another having a substantially identical interest with respect to the particular question or dispute, but only to the extent there is no conflict of interest between the representative and the person represented.

Source:Laws 2003, LB 130, § 25.

Annotations

Under section 30-3837(b), the party seeking a modification of a trust must affirmatively demonstrate that all beneficiaries have consented to the modification. The issue of consent for unknown beneficiaries must be resolved pursuant to this section and section 30-3826. In re Trust of Shire, 299 Neb. 25, 907 N.W.2d 263 (2018).

30-3826. (UTC 305) Appointment of representative.

(UTC 305) (a) If the court determines that an interest is not represented under sections 30-3822 to 30-3826, or that the otherwise available representation might be inadequate, the court may appoint a representative to receive notice, give consent, and otherwise represent, bind, and act on behalf of a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown. A representative may be appointed to represent several persons or interests.

(b) A representative may act on behalf of the individual represented with respect to any matter arising under the Nebraska Uniform Trust Code, whether or not a judicial proceeding concerning the trust is pending.

(c) In making decisions, a representative may consider general benefit accruing to the living members of the individual's family.

Source:Laws 2003, LB 130, § 26.

Annotations

Under section 30-3837(b), the party seeking a modification of a trust must affirmatively demonstrate that all beneficiaries have consented to the modification. The issue of consent for unknown beneficiaries must be resolved pursuant to section 30-3825 and this section. In re Trust of Shire, 299 Neb. 25, 907 N.W.2d 263 (2018).

30-3827. (UTC 401) Methods of creating trust.

(UTC 401) A trust may be created by:

(1) transfer of property to another person as trustee during the settlor's lifetime or by will or other disposition taking effect upon the settlor's death;

(2) except as required by a statute other than the Nebraska Uniform Trust Code, declaration by the owner of property that the owner holds identifiable property as trustee; or

(3) exercise of a power of appointment in favor of a trustee.

Source:Laws 2003, LB 130, § 27.

Annotations

Under subsection (1) of this section, a trust may be created in life insurance death benefits. In re Trust of Rosenberg, 273 Neb. 59, 727 N.W.2d 430 (2007).

30-3828. (UTC 402) Requirements for creation.

(UTC 402) (a) A trust is created only if:

(1) the settlor has capacity to create a trust and meets one of the following requirements:

(A) the settlor is eighteen years of age or older; or

(B) the settlor is not a minor;

(2) the settlor indicates an intention to create the trust;

(3) the trust has a definite beneficiary or is:

(A) a charitable trust;

(B) a trust for the care of an animal, as provided in section 30-3834; or

(4) the trustee has duties to perform; and

(5) the same person is not the sole trustee and sole beneficiary.

(b) A beneficiary is definite if the beneficiary can be ascertained now or in the future, subject to any applicable rule against perpetuities.

(c) A power in a trustee to select a beneficiary from an indefinite class is valid. If the power is not exercised within a reasonable time, the power fails and the property subject to the power passes to the persons who would have taken the property had the power not been conferred.

Source:Laws 2003, LB 130, § 28; Laws 2024, LB1195, § 8.
Effective Date: July 19, 2024

Annotations

A beneficiary must be "definite." A class of beneficiaries is not indefinite merely because it consists of a changing or shifting group, the number of whose members may increase or decrease.- Typical examples of definite classes for trust beneficiaries are "children" or "grandchildren," the "issue" or "descendants," or the "heirs" or "next of kin" of a designated person.- In re William R. Zutavern Revocable Trust, 309 Neb. 542, 961 N.W.2d 807 (2021).

The provision in subsection (b) of this section that a "beneficiary is definite if the beneficiary can be ascertained now or in the future" did not change the common-law rule that the beneficiary must be ascertainable from the trust instrument. Newman v. Liebig, 282 Neb. 609, 810 N.W.2d 408 (2011).

30-3829. (UTC 403) Trusts created in other jurisdictions.

(UTC 403) A trust not created by will is validly created if its creation complies with the law of the jurisdiction in which the trust instrument was executed, or the law of the jurisdiction in which, at the time of creation:

(1) the settlor was domiciled, had a place of abode, or was a national; or

(2) except with respect to Nebraska real estate, (A) a trustee was domiciled or had a place of business; or (B) any trust property was located.

Source:Laws 2003, LB 130, § 29.

30-3830. (UTC 404) Trust purposes.

(UTC 404) A trust may be created only to the extent its purposes are lawful, not contrary to public policy, and possible to achieve. A trust and its terms must be for the benefit of its beneficiaries.

Source:Laws 2003, LB 130, § 30.

30-3831. (UTC 405) Charitable purposes; enforcement.

(UTC 405) (a) A charitable trust may be created for the relief of poverty, the advancement of education or religion, the promotion of health, governmental or municipal purposes, or other purposes the achievement of which is beneficial to the community.

(b) If the terms of a charitable trust do not indicate a particular charitable purpose or beneficiary, the court may select one or more charitable purposes or beneficiaries. The selection must be consistent with the settlor's intention to the extent it can be ascertained.

Source:Laws 2003, LB 130, § 31.

30-3832. (UTC 406) Creation of trust induced by fraud, duress, or undue influence.

(UTC 406) A trust is void to the extent its creation was induced by fraud, duress, or undue influence.

Source:Laws 2003, LB 130, § 32.

30-3833. (UTC 407) Evidence of oral trust.

(UTC 407) Except as required by a statute other than the Nebraska Uniform Trust Code, a trust need not be evidenced by a trust instrument, but the creation of an oral trust and its terms, or an amendment or revocation of an oral trust, may be established only by clear and convincing evidence.

Source:Laws 2003, LB 130, § 33.

30-3834. (UTC 408) Trust for care of animal.

(UTC 408) (a) A trust may be created to provide for the care of an animal alive during the settlor's lifetime. The trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor's lifetime, upon the death of the last surviving animal.

(b) A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is so appointed, by a person appointed by the court. A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove a person appointed.

(c) Property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use must be distributed to the settlor, if then living, otherwise to the settlor's successors in interest.

Source:Laws 2003, LB 130, § 34.

30-3835. (UTC 409) Noncharitable trust without ascertainable beneficiary.

(UTC 409) Except as otherwise provided in section 30-3834 or Chapter 12, article 5, or by another statute, the following rules apply:

(1) A trust may be created for a noncharitable purpose without a definite or definitely ascertainable beneficiary or for a noncharitable but otherwise valid purpose to be selected by the trustee. The trust may not be enforced for more than twenty-one years.

(2) A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is so appointed, by a person appointed by the court.

(3) Property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use must be distributed to the settlor, if then living, otherwise to the settlor's successors in interest.

Source:Laws 2003, LB 130, § 35.

30-3836. (UTC 410) Modification or termination of trust; proceeding for approval or disapproval.

(UTC 410) (a) In addition to the methods of termination prescribed by sections 30-3837 to 30-3840, a trust terminates to the extent the trust is revoked or expires pursuant to its terms, no purpose of the trust remains to be achieved, or the purposes of the trust have become unlawful, contrary to public policy, or impossible to achieve.

(b) A proceeding to approve or disapprove a proposed modification or termination under sections 30-3837 to 30-3842, or trust combination or division under section 30-3843, may be commenced by a trustee or beneficiary. The settlor of a charitable trust may maintain a proceeding to modify the trust under section 30-3839.

Source:Laws 2003, LB 130, § 36; Laws 2005, LB 533, § 40.

Annotations

When a trust does not contain a termination clause, its termination date is implied from its terms. In re Estate of Hedke, 278 Neb. 727, 775 N.W.2d 13 (2009).

Where a trust did not contain a termination clause, the trust impliedly terminated with the settlor's death, because the settlor's beneficial interests in the trust ended upon her death when providing for her care and support was the only purpose for the trust. The trustee's payments for a settlor's outstanding debts, taxes, and expenses upon the settlor's death are part of the trustee's winding-up duties after a trust terminates. In re Estate of Hedke, 278 Neb. 727, 775 N.W.2d 13 (2009).

A trust may expire or terminate by its own terms, thereby triggering the period for winding up the trust; the winding-up period continues to exist until the trust is fully terminated by distribution of the trust property. In re Trust Created by Augustin, 27 Neb. App. 593, 935 N.W.2d 493 (2019).

If a trustee knows or should know of circumstances that justify judicial action to modify an administrative or distributive provision of a trust because of circumstances not anticipated by the settlor, the trustee has a duty to petition the court for appropriate modification of, or deviation from, the terms of the trust. The possible imposition of such a duty on a trustee further supports permitting a trustee to seek modification under section 30-3838 even in those instances where a trust may have terminated or expired by its own terms, but the winding up and distribution of trust property is still pending. In re Trust Created by Augustin, 27 Neb. App. 593, 935 N.W.2d 493 (2019).

If the trustees fail to distribute the property once the purpose of the trust was fulfilled, a court can enter an order fully terminating the trust with directions to distribute the trust property in accordance with the terms of the trust or, if appropriate, enter an order modifying (or reforming) the trust terms. In re Trust Created by Augustin, 27 Neb. App. 593, 935 N.W.2d 493 (2019).

Regardless of how a trust may terminate, subsection (b) of this section authorizes a trustee or beneficiary to commence a proceeding to approve or disapprove a proposed modification or termination under sections 30-3837 to 30-3842. In re Trust Created by Augustin, 27 Neb. App. 593, 935 N.W.2d 493 (2019).

The Nebraska Uniform Trust Code allows a beneficiary or trustee to petition a county court to consider modification or termination of a trust which has expired or terminated pursuant to its own terms but remains in the winding-up period, including the possible modification of, or deviation from, dispositive terms. In re Trust Created by Augustin, 27 Neb. App. 593, 935 N.W.2d 493 (2019).

The Nebraska Uniform Trust Code provides statutory options for a trustee to seek a modification of the trust during the winding-up period following the expiration or termination of a trust by its own terms. In re Trust Created by Augustin, 27 Neb. App. 593, 935 N.W.2d 493 (2019).

30-3837. (UTC 411) Modification or termination of noncharitable irrevocable trust by consent.

(UTC 411) (a) If, upon petition, the court finds that the settlor and all beneficiaries consent to the modification or termination of a noncharitable irrevocable trust, the court shall approve the modification or termination even if the modification or termination is inconsistent with a material purpose of the trust. A settlor's power to consent to a trust's modification or termination may be exercised by an agent under a power of attorney only to the extent expressly authorized by the power of attorney or the terms of the trust; by the settlor's conservator with the approval of the court supervising the conservatorship if an agent is not so authorized; or by the settlor's guardian with the approval of the court supervising the guardianship if an agent is not so authorized and a conservator has not been appointed.

(b) A noncharitable irrevocable trust may be terminated upon consent of all of the beneficiaries if the court concludes that continuance of the trust is not necessary to achieve any material purpose of the trust. A noncharitable irrevocable trust may be modified upon consent of all of the beneficiaries if the court concludes that modification is not inconsistent with a material purpose of the trust.

(d) Upon termination of a trust under subsection (a) or (b) of this section, the trustee shall distribute the trust property as agreed by the beneficiaries.

(e) If not all of the beneficiaries consent to a proposed modification or termination of the trust under subsection (a) or (b) of this section, the modification or termination may be approved by the court if the court is satisfied that:

(1) if all of the beneficiaries had consented, the trust could have been modified or terminated under this section; and

(2) the interests of a beneficiary who does not consent will be adequately protected.

Source:Laws 2003, LB 130, § 37; Laws 2004, LB 999, § 25; Laws 2005, LB 533, § 41.

Annotations

Under subsection (b) of this section, the party seeking a modification of a trust must affirmatively demonstrate that all beneficiaries have consented to the modification. The issue of consent for unknown beneficiaries must be resolved pursuant to sections 30-3825 and 30-3826. In re Trust of Shire, 299 Neb. 25, 907 N.W.2d 263 (2018).

Under subsection (e) of this section, there must be a showing that the interests of nonconsenting beneficiaries will be adequately protected by a modification. For the interests of nonconsenting beneficiaries to be adequately protected, the court must determine that modification will not affect those interests and impose safeguards to prevent them from being affected, when deemed necessary. In re Trust of Shire, 299 Neb. 25, 907 N.W.2d 263 (2018).

Although subsection (e) of this section authorizes a court to modify a trust without the consent of all beneficiaries, it can only do so if the modification is not inconsistent with a material purpose of the trust and any nonconsenting beneficiary would be adequately protected. In re Trust Created by Augustin, 27 Neb. App. 593, 935 N.W.2d 493 (2019).

While this section refers to a noncharitable irrevocable trust, and the trusts at issue here were revocable when made, this section's application is nevertheless appropriate because of the death of the last surviving grantor/settlor. A trust which is revocable when made remains revocable during the settlor's lifetime; however, a revocable trust necessarily becomes irrevocable upon the settlor's death. In re Trust Created by Augustin, 27 Neb. App. 593, 935 N.W.2d 493 (2019).

30-3838. (UTC 412) Modification or termination because of unanticipated circumstances or inability to administer trust effectively.

(UTC 412) (a) The court may modify the administrative or dispositive terms of a trust or terminate the trust if, because of circumstances not anticipated by the settlor, modification or termination will further the purposes of the trust. To the extent practicable, the modification must be made in accordance with the settlor's probable intention.

(b) The court may modify the administrative terms of a trust if continuation of the trust on its existing terms would be impracticable or wasteful or impair the trust's administration.

(c) Upon termination of a trust under this section, the trustee shall distribute the trust property in a manner consistent with the purposes of the trust.

Source:Laws 2003, LB 130, § 38.

Annotations

If a trustee knows or should know of circumstances that justify judicial action to modify an administrative or distributive provision of a trust because of circumstances not anticipated by the settlor, the trustee has a duty to petition the court for appropriate modification of, or deviation from, the terms of the trust. The possible imposition of such a duty on a trustee further supports permitting a trustee to seek modification under this section even in those instances where a trust may have terminated or expired by its own terms, but the winding up and distribution of trust property is still pending. In re Trust Created by Augustin, 27 Neb. App. 593, 935 N.W.2d 493 (2019).

This section broadens the court's ability to apply equitable deviation to modify a trust. The application of equitable deviation allows a court to modify the dispositive provisions of a trust, as well as its administrative terms. The purpose of equitable deviation is not to disregard the settlor's intent but to modify inopportune details to effectuate better the settlor's broader purpose. In re Trust Created by Augustin, 27 Neb. App. 593, 935 N.W.2d 493 (2019).

30-3839. (UTC 413) Cy pres.

(UTC 413) (a) Except as otherwise provided in subsection (b) of this section, if a particular charitable purpose becomes unlawful, impracticable, impossible to achieve, or wasteful:

(1) the trust does not fail, in whole or in part;

(2) the trust property does not revert to the settlor or the settlor's successors in interest; and

(3) the court may apply cy pres to modify or terminate the trust by directing that the trust property be applied or distributed, in whole or in part, in a manner consistent with the settlor's charitable purposes or to the Legal Aid and Services Fund.

(b) Subsection (a) of this section does not apply if the document creating the charitable interest expressly provides for an alternate disposition of the charitable interest in the event the charitable purpose becomes unlawful, impracticable, impossible to achieve, or wasteful. A general residuary disposition by trust shall not be considered an express provision for an alternate disposition.

(c) This section shall not be deemed to limit application of the common law doctrines of cy pres and deviation or section 58-615.

Source:Laws 2003, LB 130, § 39; Laws 2010, LB758, § 4; Laws 2014, LB1089, § 2.

30-3840. (UTC 414) Modification or termination of uneconomic trust.

(UTC 414) (a) After notice to the qualified beneficiaries, the trustee of a trust consisting of trust property having a total value less than one hundred thousand dollars may terminate the trust if the trustee concludes that the value of the trust property is insufficient to justify the cost of administration.

(b) The court may modify or terminate a trust or remove the trustee and appoint a different trustee if it determines that the value of the trust property is insufficient to justify the cost of administration.

(c) Upon termination of a trust under this section, the trustee shall distribute the trust property in a manner consistent with the purposes of the trust.

(d) This section does not apply to an easement for conservation or preservation.

Source:Laws 2003, LB 130, § 40.

30-3841. (UTC 415) Reformation to correct mistakes.

(UTC 415) The court may reform the terms of a trust, even if unambiguous, to conform the terms to the settlor's intention if it is proved by clear and convincing evidence that both the settlor's intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement.

Source:Laws 2003, LB 130, § 41.

Annotations

A document by which a settlor purports to revoke a revocable trust is a term of that trust. In re Trust Created by Isvik, 274 Neb. 525, 741 N.W.2d 638 (2007).

Absent clear and convincing evidence that a settlor's stated intent to revoke her trust was a product of mistake, the trust was revoked and ceased to exist. In re Trust Created by Isvik, 274 Neb. 525, 741 N.W.2d 638 (2007).

A document by which a settlor purports to revoke a revocable trust is a term of that trust within the meaning of this section. In re Trust of O'Donnell, 19 Neb. App. 696, 815 N.W.2d 640 (2012).

30-3842. (UTC 416) Modification to achieve settlor's tax objectives.

(UTC 416) To achieve the settlor's tax objectives, the court may modify the terms of a trust in a manner that is not contrary to the settlor's probable intention. The court may provide that the modification has retroactive effect.

Source:Laws 2003, LB 130, § 42.

30-3843. (UTC 417) Combination and division of trusts.

(UTC 417) After notice to the qualified beneficiaries, a trustee may combine two or more trusts into a single trust or divide a trust into two or more separate trusts, if the result does not impair rights of any beneficiary or adversely affect achievement of the purposes of the trust.

Source:Laws 2003, LB 130, § 43.

30-3844. Reference to written statement or list.

A trust may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the trust, other than money, evidences of indebtedness, documents of title, and securities, and property used in trade or business. To be admissible under this section as evidence of the intended disposition, the writing must have an indication of the date of the writing or signing and, in the absence of such indication of date, be the only such writing or contain no inconsistency with any other like writing or permit determination of such date of writing or signing from the contents of such writing, from extrinsic circumstances, or from any other evidence, must either be in the handwriting of the settlor or be signed by him or her, and must describe the items and the beneficiaries or recipients with reasonable certainty. The writing may be referred to as one to be in existence at the time of the settlor's death; it may be prepared before or after the execution of the trust; it may be altered by the settlor after its preparation; and it may be a writing which has no significance apart from its effect upon the disposition made by the trust.

Source:Laws 2003, LB 130, § 44.

30-3845. Renunciation.

Renunciations under the Nebraska Uniform Trust Code shall be governed by section 30-2352.

Source:Laws 2003, LB 130, § 45.

30-3846. (UTC 501) Rights of beneficiary's creditor or assignee.

(UTC 501) To the extent a beneficiary's interest is not subject to a spendthrift provision, the court may authorize a creditor or assignee of the beneficiary to reach the beneficiary's interest by attachment of present or future distributions to or for the benefit of the beneficiary or other means. The court may limit the award to such relief as is appropriate under the circumstances.

Source:Laws 2003, LB 130, § 46; Laws 2007, LB124, § 23.

30-3847. (UTC 502) Spendthrift provision.

(UTC 502) (a) A spendthrift provision is valid only if it restrains both voluntary and involuntary transfer of a beneficiary's interest.

(b) A term of a trust providing that the interest of a beneficiary is held subject to a "spendthrift trust", or words of similar import, is sufficient to restrain both voluntary and involuntary transfer of the beneficiary's interest.

(c) A beneficiary may not transfer an interest in a trust in violation of a valid spendthrift provision and, except as otherwise provided in sections 30-3846 to 30-3852, a creditor or assignee of the beneficiary may not reach the interest or a distribution by the trustee before its receipt by the beneficiary.

Source:Laws 2003, LB 130, § 47.

30-3848. (UTC 503) Exceptions to spendthrift provision.

(UTC 503) (a) In this section, "child" includes any person for whom an order or judgment for child support has been entered in this or another state.

(b) A spendthrift provision is unenforceable against:

(1) a beneficiary's child, spouse, or former spouse who has a judgment or court order against the beneficiary for support or maintenance;

(2) a judgment creditor who has provided services for the protection of a beneficiary's interest in the trust; and

(3) a claim of this state or the United States to the extent a statute of this state or federal law so provides.

(c) A claimant against which a spendthrift provision cannot be enforced may obtain from a court an order attaching present or future distributions to or for the benefit of the beneficiary. The court may limit the award to such relief as is appropriate under the circumstances.

Source:Laws 2003, LB 130, § 48; Laws 2007, LB124, § 24.

30-3849. (UTC 504) Discretionary trusts; effect of standard.

(UTC 504) (a) In this section, "child" includes any person for whom an order or judgment for child support has been entered in this or another state.

(b) Except as otherwise provided in subsection (c) of this section, whether or not a trust contains a spendthrift provision, a creditor of a beneficiary may not compel a distribution that is subject to the trustee's discretion, even if:

(1) the discretion is expressed in the form of a standard of distribution; or

(2) the trustee has abused the discretion.

(1) a distribution may be ordered by the court to satisfy a judgment or court order against the beneficiary for support or maintenance of the beneficiary's child, spouse, or former spouse; and

(2) the court shall direct the trustee to pay to the child, spouse, or former spouse such amount as is equitable under the circumstances but not more than the amount the trustee would have been required to distribute to or for the benefit of the beneficiary had the trustee complied with the standard or not abused the discretion.

(d) This section does not limit the right of a beneficiary to maintain a judicial proceeding against a trustee for an abuse of discretion or failure to comply with a standard for distribution.

(e) If the trustee's or cotrustee's discretion to make distributions for the trustee's or cotrustee's own benefit is limited by an ascertainable standard, a creditor may not reach or compel distribution of the beneficial interest except to the extent the interest would be subject to the creditor's claim were the beneficiary not acting as trustee or cotrustee.

Source:Laws 2003, LB 130, § 49; Laws 2005, LB 533, § 42; Laws 2007, LB124, § 25.

30-3850. (UTC 505) Creditor's claim against settlor.

(UTC 505) (a) Whether or not the terms of a trust contain a spendthrift provision, the following rules apply:

(1) During the lifetime of the settlor, the property of a revocable trust is subject to claims of the settlor's creditors.

(2) With respect to an irrevocable trust:

(A) A creditor or assignee of the settlor may reach the maximum amount that can be distributed to or for the settlor's benefit. If a trust has more than one settlor, the amount the creditor or assignee of a particular settlor may reach may not exceed the settlor's interest in the portion of the trust attributable to that settlor's contribution.

(B) A trustee's discretionary authority to pay directly to the taxing authorities or to reimburse the settlor for any tax on trust income or principal, that is payable by the settlor under the law imposing the tax, shall not be considered to be an amount that can be distributed to or for the settlor's benefit, and a creditor or assignee of the settlor shall not be entitled to reach any amount solely by reason of this discretionary authority.

(C) Anything in the Nebraska Uniform Trust Code to the contrary notwithstanding, the settlor shall not be considered to be a beneficiary of an irrevocable trust solely by reason of the trustee's authority to pay directly to the taxing authorities or to reimburse the settlor for any tax on trust income or principal that is payable by the settlor under the law imposing the tax, whether such authority arises pursuant to subsection (b) of section 30-3881 or the terms of the trust.

(3) After the death of a settlor, and subject to the settlor's right to direct the source from which liabilities will be paid, the property of a trust that was revocable at the settlor's death is subject to claims of the settlor's creditors, costs of administration of the settlor's estate, the expenses of the settlor's funeral and disposal of remains, and statutory allowances to a surviving spouse and children to the extent the settlor's probate estate is inadequate to satisfy those claims, costs, expenses, and allowances. A proceeding to assert the liability for claims against the estate and statutory allowances may not be commenced unless the personal representative has received a written demand by the surviving spouse, a creditor, a child, or a person acting for a child of the decedent. The proceeding must be commenced within one year after the death of the decedent. Sums recovered by the personal representative of the settlor's estate must be administered as part of the decedent's estate. The liability created by this subdivision shall not apply to any assets to the extent that such assets are otherwise exempt under the laws of this state or under federal law.

(4) A beneficiary of a trust subject to subdivision (a)(3) of this section who receives one or more distributions from the trust after the death of the settlor against whom a proceeding to account is brought may join as a party to the proceeding any other beneficiary who has received a distribution from that trust or any other trust subject to subdivision (a)(3) of this section, any surviving owner or beneficiary under sections 30-2734 to 30-2745 of any other security or securities account of the decedent or proceeds thereof, or a surviving party or beneficiary of any account under sections 30-2716 to 30-2733.

(5) Unless a written notice asserting that a decedent's probate estate is insufficient to pay allowed claims and statutory allowances has been received from the decedent's personal representative before the distribution, a trustee is released from liability under this section on any assets distributed to the trust's beneficiaries.

(b) For purposes of this section:

(1) during the period the power may be exercised, the holder of a power of withdrawal is treated in the same manner as the settlor of a revocable trust to the extent of the property subject to the power; and

(2) upon the lapse, release, or waiver of the power, the holder is treated as the settlor of the trust only to the extent the value of the property affected by the lapse, release, or waiver exceeds the greater of the amount specified in section 2041(b)(2), 2503(b), or 2514(e) of the Internal Revenue Code as defined in section 49-801.01.

Source:Laws 2003, LB 130, § 50; Laws 2022, LB707, § 32.

Annotations

A creditor does not fail to comply with the notice provisions contained in subsection (a)(3) of this section merely because the amount requested by the creditor does not match the amount ultimately recovered after trial. Hastings State Bank v. Misle, 282 Neb. 1, 804 N.W.2d 805 (2011).

Under subsection (a)(3) of this section, a surviving spouse's elective share is neither a statutory allowance nor a claim against the estate. In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).

Under this section, a personal representative has no interest in the decedent's validly created nontestamentary trust except to assert the trust's liability for this section's specified claims against the estate and statutory allowances that the decedent's estate is inadequate to satisfy. In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).

Whether premarital trust assets are part of the augmented estate for determining a surviving spouse's elective share is governed by section 30-2314 of the Nebraska Probate Code, not this section. In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).

30-3851. (UTC 506) Mandatory distribution.

(UTC 506) (a) In this section, "mandatory distribution" means a distribution of income or principal which the trustee is required to make to a beneficiary under the terms of the trust, including a distribution upon termination of the trust. The term does not include a distribution subject to the exercise of the trustee's discretion even if (1) the discretion is expressed in the form of a standard of distribution or (2) the terms of the trust authorizing a distribution couple language of discretion with language of direction.

(b) Whether or not a trust contains a spendthrift provision, a creditor or assignee of a beneficiary may reach a mandatory distribution of income or principal, including a distribution upon termination of the trust, if the trustee has not made the distribution to the beneficiary within a reasonable time after the designated distribution date.

Source:Laws 2003, LB 130, § 51; Laws 2007, LB124, § 26.

30-3852. (UTC 507) Personal obligations of trustee.

(UTC 507) Trust property is not subject to personal obligations of the trustee, even if the trustee becomes insolvent or bankrupt.

Source:Laws 2003, LB 130, § 52.

30-3853. (UTC 601) Capacity of settlor of revocable trust.

(UTC 601) The capacity required to create, amend, revoke, or add property to a revocable trust, or to direct the actions of the trustee of a revocable trust, is the same as that required to make a will.

Source:Laws 2003, LB 130, § 53.

30-3854. (UTC 602) Revocation or amendment of revocable trust.

(UTC 602) (a) Unless the terms of a trust expressly provide that the trust is irrevocable, the settlor may revoke or amend the trust. This subsection does not apply to a trust created under an instrument executed before January 1, 2005.

(b) If a revocable trust is created or funded by more than one settlor:

(1) to the extent the trust consists of community property, the trust may be revoked by either spouse acting alone but may be amended only by joint action of both spouses;

(2) to the extent the trust consists of property other than community property, each settlor may revoke or amend the trust with regard to the portion of the trust property attributable to that settlor's contribution; and

(3) upon the revocation or amendment of the trust by fewer than all of the settlors, the trustee shall promptly notify the other settlors of the revocation or amendment.

(1) by substantial compliance with a method provided in the terms of the trust; or

(2) if the terms of the trust do not provide a method or the method provided in the terms is not expressly made exclusive, by:

(A) a later will or codicil that expressly refers to the trust or specifically devises property that would otherwise have passed according to the terms of the trust; or

(B) an instrument evidencing an intent to amend or revoke the trust signed by the settlor, or in the settlor's name by some other individual in the presence of and by the direction of the settlor. The instrument must have an indication of the date of the writing or signing and, in the absence of such indication of the date, be the only such writing or contain no inconsistency with any other like writing or permit determination of such date of writing or signing from the content of such writing, from extrinsic circumstances, or from any other evidence.

(d) Upon revocation of a revocable trust, the trustee shall deliver the trust property as the settlor directs.

(e) A settlor's powers with respect to revocation, amendment, or distribution of trust property may be exercised by an agent under a power of attorney only to the extent expressly authorized by the terms of the trust or the power.

(f) A conservator of the settlor or, if no conservator has been appointed, a guardian of the settlor may exercise a settlor's powers with respect to revocation, amendment, or distribution of trust property only with the approval of the court supervising the conservatorship or guardianship.

(g) A trustee who does not know that a trust has been revoked or amended is not liable to the settlor or settlor's successors in interest for distributions made and other actions taken in reliance on the terms of the trust.

(h) The revocation, amendment, and distribution of trust property of a trust pursuant to this section is subject to section 30-2333.

Source:Laws 2003, LB 130, § 54; Laws 2004, LB 999, § 26; Laws 2017, LB517, § 6.

30-3855. (UTC 603) Rights and duties.

(UTC 603) (a) To the extent a trust is revocable by a settlor, a trustee may follow a direction of the settlor that is contrary to the terms of the trust. To the extent a trust is revocable by a settlor in conjunction with a person other than a trustee or person holding an adverse interest, the trustee may follow a direction from the settlor and the other person holding the power to revoke even if the direction is contrary to the terms of the trust.

(b) While a trust is revocable, rights of the beneficiaries are subject to the control of, and the duties of the trustee are owed exclusively to, the settlor.

(c) While the trust is irrevocable and during the period the power may be exercised, the holder of a power of withdrawal has the rights of a settlor of a revocable trust under this section and the duties of the trustee are owed exclusively to the holder of the power to the extent of the property subject to the power.

(d) While the trust is irrevocable and during the period the interest of any beneficiary not having a present interest may be terminated by the exercise of a power of appointment or other power, the duties of the trustee are owed exclusively to the holder of the power to the extent of the property subject to the power.

Source:Laws 2003, LB 130, § 55; Laws 2004, LB 999, § 27; Laws 2005, LB 533, § 43; Laws 2013, LB38, § 2; Laws 2019, LB536, § 22.

Annotations

This section does not dictate who may petition for the removal of a trustee, but, rather, describes to whom fiduciary duties are owed. In re Conservatorship of Abbott, 295 Neb. 510, 890 N.W.2d 469 (2017).

Where a trust agreement provided for the discretionary payment of trust principal to beneficiaries for their health, maintenance, support, and education, the beneficiaries had enforceable, present interests in the trust and the trustee owed fiduciary duties to the beneficiaries. In re Conservatorship of Abbott, 295 Neb. 510, 890 N.W.2d 469 (2017).

Under this section, incapacity of the settlor does not affect the settlor's power to revoke a trust, though it might affect the ability of the settlor to exercise that power. Manon v. Orr, 289 Neb. 484, 856 N.W.2d 106 (2014).

Pursuant to this section, the rights of the beneficiaries of a revocable trust are subject to the continued control of the settlor. In re Trust Created by Haberman, 24 Neb. App. 359, 886 N.W.2d 829 (2016).

30-3856. (UTC 604) Limitation on action contesting validity of revocable trust; distribution of trust property.

(UTC 604) (a) A person may commence a judicial proceeding to contest the validity of a trust that was revocable at the settlor's death within the earlier of:

(1) one year after the settlor's death; or

(2) one hundred twenty days after the trustee sent the person a copy of the trust instrument and a notice informing the person of the trust's existence, of the trustee's name and address, and of the time allowed for commencing a proceeding.

(b) Upon the death of the settlor of a trust that was revocable at the settlor's death, the trustee may proceed to distribute the trust property in accordance with the terms of the trust. The trustee is not subject to liability for doing so unless:

(1) the trustee knows of a pending judicial proceeding contesting the validity of the trust; or

(2) a potential contestant has notified the trustee of a possible judicial proceeding to contest the trust and a judicial proceeding is commenced within sixty days after the contestant sent the notification.

(1) the property and its income since distribution, if the beneficiary has the property; or

(2) the value of the property as of the date of disposition of the property, and its income and gain received by the beneficiary, if the beneficiary has disposed of the property.

Source:Laws 2003, LB 130, § 56.

30-3857. (UTC 701) Accepting or declining trusteeship.

(UTC 701) (a) Except as otherwise provided in subsection (c) of this section, a person designated as trustee accepts the trusteeship:

(1) by substantially complying with a method of acceptance provided in the terms of the trust;

(2) if the terms of the trust do not provide a method or the method provided in the terms is not expressly made exclusive, by accepting delivery of the trust property, exercising powers or performing duties as trustee, or otherwise indicating acceptance of the trusteeship; or

(3) by registering the trust in accordance with established statutory procedures.

(b) A person designated as trustee who has not yet accepted the trusteeship may reject the trusteeship. A designated trustee who does not accept the trusteeship within a reasonable time after knowing of the designation is deemed to have rejected the trusteeship.

(1) act to preserve the trust property if, within a reasonable time after acting, the person sends a rejection of the trusteeship to the settlor or, if the settlor is dead or lacks capacity, to a qualified beneficiary; and

(2) inspect or investigate trust property to determine potential liability under environmental or other law or for any other purpose.

Source:Laws 2003, LB 130, § 57.

30-3858. (UTC 702) Trustee's bond.

(UTC 702) (a) A trustee shall give bond to secure performance of the trustee's duties only if the court finds that a bond is needed to protect the interests of the beneficiaries or is required by the terms of the trust and the court has not dispensed with the requirement.

(b) The court may specify the amount of a bond, its liabilities, and whether sureties are necessary. The court may modify or terminate a bond at any time.

(c) A bank or trust company qualified to act as a trustee in this state need not give bond, even if required by the terms of the trust.

Source:Laws 2003, LB 130, § 58.

30-3859. (UTC 703) Cotrustees.

(UTC 703) (a) Cotrustees who are unable to reach a unanimous decision may act by majority decision, except that any cotrustee may act independently as provided in section 30-901.

(b) If a vacancy occurs in a cotrusteeship, the remaining cotrustees may act for the trust.

(c) Subject to section 30-4312, a cotrustee must participate in the performance of a trustee's function unless the cotrustee is unavailable to perform the function because of absence, illness, disqualification under other law, or other temporary incapacity or the cotrustee has properly delegated the performance of the function to another trustee.

(d) If a cotrustee is unavailable to perform duties because of absence, illness, disqualification under other law, or other temporary incapacity, and prompt action is necessary to achieve the purposes of the trust or to avoid injury to the trust property, the remaining cotrustee or a majority of the remaining cotrustees may act for the trust.

(e) A trustee may not delegate to a cotrustee the performance of a function the settlor reasonably expected the trustees to perform jointly. Unless a delegation was irrevocable, a trustee may revoke a delegation previously made.

(f) Except as otherwise provided in subsection (g) of this section, a trustee who does not join in an action of another trustee is not liable for the action.

(g) Subject to section 30-4312, each trustee shall exercise reasonable care to:

(1) prevent a cotrustee from committing a serious breach of trust; and

(2) compel a cotrustee to redress a serious breach of trust.

(h) A dissenting trustee who joins in an action at the direction of the majority of the trustees and who notified any cotrustee of the dissent at or before the time of the action is not liable for the action unless the action is a serious breach of trust.

Source:Laws 2003, LB 130, § 59; Laws 2019, LB55, § 4; Laws 2019, LB536, § 23.

Annotations

A trustee is liable for the action of another trustee if he joins in the action, fails to prevent the cotrustee from committing a serious breach of trust, or fails to compel the cotrustee to redress a serious breach of trust. In re Conservatorship of Abbott, 295 Neb. 510, 890 N.W.2d 469 (2017).

Where one cotrustee also acts as a power of attorney for a second cotrustee in managing trust affairs, that cotrustee is considered to join in all actions of the second cotrustee and may owe certain fiduciary duties as a result. In re Conservatorship of Abbott, 295 Neb. 510, 890 N.W.2d 469 (2017).

30-3860. (UTC 704) Vacancy in trusteeship; appointment of successor.

(UTC 704) (a) A vacancy in a trusteeship occurs if:

(1) a person designated as trustee rejects the trusteeship;

(2) a person designated as trustee cannot be identified or does not exist;

(3) a trustee resigns;

(4) a trustee is disqualified or removed;

(5) a trustee dies; or

(6) a guardian or conservator is appointed for an individual serving as trustee.

(b) If one or more cotrustees remain in office, a vacancy in a trusteeship need not be filled. A vacancy in a trusteeship must be filled if the trust has no remaining trustee.

(c) A vacancy in a trusteeship of a noncharitable trust that is required to be filled must be filled in the following order of priority:

(1) by a person designated in the terms of the trust to act as successor trustee;

(2) by a person appointed by unanimous agreement of the qualified beneficiaries; or

(3) by a person appointed by the court.

(d) A vacancy in a trusteeship of a charitable trust that is required to be filled must be filled in the following order of priority:

(1) by a person designated in the terms of the trust to act as successor trustee;

(2) by a person selected by the charitable organizations expressly designated to receive distributions under the terms of the trust if the Attorney General concurs in the selection; or

(3) by a person appointed by the court.

(e) Whether or not a vacancy in a trusteeship exists or is required to be filled, the court may appoint an additional trustee or special fiduciary whenever the court considers the appointment necessary for the administration of the trust.

Source:Laws 2003, LB 130, § 60.

30-3861. (UTC 705) Resignation of trustee.

(UTC 705) (a) A trustee may resign:

(1) upon at least thirty days' notice to the qualified beneficiaries, the settlor, if living, and all cotrustees; or

(2) with the approval of the court.

(b) In approving a resignation, the court may issue orders and impose conditions reasonably necessary for the protection of the trust property.

(c) Any liability of a resigning trustee or of any sureties on the trustee's bond for acts or omissions of the trustee is not discharged or affected by the trustee's resignation.

Source:Laws 2003, LB 130, § 61.

30-3862. (UTC 706) Removal of trustee.

(UTC 706) (a) The settlor, a cotrustee, or a beneficiary may request the court to remove a trustee, or a trustee may be removed by the court on its own initiative.

(b) The court may remove a trustee if:

(1) the trustee has committed a serious breach of trust;

(2) lack of cooperation among cotrustees substantially impairs the administration of the trust;

(3) because of unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the interests of the beneficiaries; or

(4) there has been a substantial change of circumstances or removal is requested by all of the qualified beneficiaries, the court finds that removal of the trustee best serves the interests of all of the beneficiaries and is not inconsistent with a material purpose of the trust, and a suitable cotrustee or successor trustee is available.

(c) Pending a final decision on a request to remove a trustee, or in lieu of or in addition to removing a trustee, the court may order such appropriate relief under subsection (b) of section 30-3890 as may be necessary to protect the trust property or the interests of the beneficiaries.

Source:Laws 2003, LB 130, § 62.

Annotations

The petitioners qualified as beneficiaries under the Nebraska Uniform Trust Code, because a family trust granted them a contingent future beneficial interest. In re William R. Zutavern Revocable Trust, 309 Neb. 542, 961 N.W.2d 807 (2021).

Removal of bank as trustee was inconsistent with material purpose of trust, where bank was selected because settlor wanted a trustee that was independent, and settlor did not want trustee that was a part of settlor's family. In re Trust Created by Fenske, 303 Neb. 430, 930 N.W.2d 43 (2019).

Where two trusts share the same beneficiaries, trustee, and trust instrument and removal of the trustee for breach of fiduciary duty was appropriate for one of the trusts, a county court has the power in equity to determine if it is in the best interests of the beneficiaries to remove the trustee of the second trust. In re Conservatorship of Abbott, 295 Neb. 510, 890 N.W.2d 469 (2017).

A proceeding initiated under section 30-3814 and this section to remove a trustee is a special proceeding within the meaning of section 25-1902. In re Trust of Rosenberg, 269 Neb. 310, 693 N.W.2d 500 (2005).

The court has the authority to remove a trustee if the trustee has engaged in self-dealing. Sherman v. Sherman, 16 Neb. App. 766, 751 N.W.2d 168 (2008).

The trial court did not refer to language of this section in finding that the cotrustee should be removed but made several factual findings supporting removal under this section, and the appellate court concluded that the cotrustee's actions when considered together justified removal of the cotrustee under this section. In re Charles C. Wells Revocable Trust, 15 Neb. App. 624, 734 N.W.2d 323 (2007).

30-3863. (UTC 707) Delivery of property by former trustee.

(UTC 707) (a) Unless a cotrustee remains in office or the court otherwise orders, and until the trust property is delivered to a successor trustee or other person entitled to it, a trustee who has resigned or been removed has the duties of a trustee and the powers necessary to protect the trust property.

(b) A trustee who has resigned or been removed shall proceed expeditiously to deliver the trust property within the trustee's possession to the cotrustee, successor trustee, or other person entitled to it.

(c) Title to all trust property shall be owned by and vested in any successor trustee without any conveyance, transfer, or assignment by the prior trustee.

Source:Laws 2003, LB 130, § 63.

30-3864. (UTC 708) Compensation of trustee.

(UTC 708) (a) If the terms of a trust do not specify the trustee's compensation, a trustee is entitled to compensation that is reasonable under the circumstances.

(b) If the terms of a trust specify the trustee's compensation, the trustee is entitled to be compensated as specified, but the court may allow more or less compensation if:

(1) the duties of the trustee are substantially different from those contemplated when the trust was created; or

(2) the compensation specified by the terms of the trust would be unreasonably low or high.

Source:Laws 2003, LB 130, § 64.

30-3865. (UTC 709) Reimbursement of expenses.

(UTC 709) (a) A trustee is entitled to be reimbursed out of the trust property, with interest as appropriate, for:

(1) expenses that were properly incurred in the administration of the trust; and

(2) to the extent necessary to prevent unjust enrichment of the trust, expenses that were not properly incurred in the administration of the trust.

(b) An advance by the trustee of money for the protection of the trust gives rise to a lien against trust property to secure reimbursement with reasonable interest.

Source:Laws 2003, LB 130, § 65.

30-3866. (UTC 801) Duty to administer trust.

(UTC 801) Upon acceptance of a trusteeship, the trustee shall administer the trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries, and in accordance with the Nebraska Uniform Trust Code.

Source:Laws 2003, LB 130, § 66.

Annotations

Upon acceptance of a trusteeship, a trustee has a duty to administer the trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries, and in accordance with the Nebraska Uniform Trust Code. In re William R. Zutavern Revocable Trust, 309 Neb. 542, 961 N.W.2d 807 (2021).

30-3867. (UTC 802) Duty of loyalty.

(UTC 802) (a) A trustee shall administer the trust solely in the interests of the beneficiaries.

(b) Subject to the rights of persons dealing with or assisting the trustee as provided in section 30-38,101, a sale, encumbrance, or other transaction involving the investment or management of trust property entered into by the trustee for the trustee's own personal account or which is otherwise affected by a conflict between the trustee's fiduciary and personal interests is voidable by a beneficiary affected by the transaction unless:

(1) the transaction was authorized by the terms of the trust;

(2) the transaction was approved by the court;

(3) the beneficiary did not commence a judicial proceeding within the time allowed by section 30-3894;

(4) the beneficiary consented to the trustee's conduct, ratified the transaction, or released the trustee in compliance with section 30-3898; or

(5) the transaction involves a contract entered into or claim acquired by the trustee before the person became or contemplated becoming trustee.

(c) A sale, encumbrance, or other transaction involving the investment or management of trust property is presumed to be affected by a conflict between personal and fiduciary interests if it is entered into by the trustee with:

(1) the trustee's spouse;

(2) the trustee's descendants, siblings, parents, or their spouses;

(3) an agent or attorney of the trustee; or

(4) a corporation or other person or enterprise in which the trustee, or a person that owns a significant interest in the trustee, has an interest that might affect the trustee's best judgment.

(d) A transaction not concerning trust property in which the trustee engages in the trustee's individual capacity involves a conflict between personal and fiduciary interests if the transaction concerns an opportunity properly belonging to the trust.

(e)(1) The following transactions shall not be presumed to be affected by a conflict between the personal and fiduciary interests of a trustee, if the transaction and any investment made pursuant to the transaction complies with the prudent investor rule set forth in sections 30-3883 to 30-3889 and is in the best interests of the beneficiaries:

(A) an investment by a trustee in securities of an investment company or investment trust to which the trustee or its affiliate provides services in a capacity other than as trustee; or

(B) the placing of securities transactions by a trustee through a securities broker that is part of the same company as the trustee, is owned by the trustee, or is affiliated with the trustee.

(2) In addition to the trustee's fees charged to the trust, the trustee, its affiliate, or its associated entity may be reasonably compensated for any transaction or provision of services described in this subsection performed by the trustee, its affiliate, or its associated entity. However, with respect to any investment in securities of an investment company or investment trust to which the trustee or its affiliate provides investment advisory or investment management services, the trustee shall, at least annually, notify the persons entitled under section 30-3878 to receive a copy of the trustee's annual report of the rate and method by which the compensation was determined.

(f) In voting shares of stock or in exercising powers of control over similar interests in other forms of enterprise, the trustee shall act in the best interests of the beneficiaries. If the trust is the sole owner of a corporation or other form of enterprise, the trustee shall elect or appoint directors or other managers who will manage the corporation or enterprise in the best interests of the beneficiaries.

(g) This section does not preclude the following transactions, if fair to the beneficiaries:

(1) an agreement between a trustee and a beneficiary relating to the appointment or compensation of the trustee;

(2) payment of reasonable compensation to the trustee;

(3) a transaction between a trust and another trust, decedent's estate, or conservatorship of which the trustee is a fiduciary or in which a beneficiary has an interest;

(4) a deposit of trust money in a regulated financial-service institution operated by the trustee; or

(5) an advance by the trustee of money for the protection of the trust.

(h) The court may appoint a special fiduciary to make a decision with respect to any proposed transaction that might violate this section if entered into by the trustee.

Source:Laws 2003, LB 130, § 67; Laws 2004, LB 999, § 28; Laws 2005, LB 533, § 44; Laws 2007, LB124, § 27.

Annotations

Unless an exception under this section applies, a trust beneficiary establishes a prima facie case of fraud by showing that a trustee's transaction benefited the trustee at the beneficiary's expense. The burden of going forward with evidence then shifts to the trustee to establish the following by clear and convincing evidence: The transaction was made under a power expressly granted in the trust and the clear intent of the settlor and the transaction was in the beneficiary's best interests. In re Estate of Hedke, 278 Neb. 727, 775 N.W.2d 13 (2009).

30-3868. (UTC 803) Impartiality.

(UTC 803) If a trust has two or more beneficiaries, the trustee shall act impartially in investing, managing, and distributing the trust property, giving due regard to the beneficiaries' respective interests.

Source:Laws 2003, LB 130, § 68.

Annotations

A trustee's duty of impartiality in administering trust property plays particular importance in distributing assets. In re Estate of Hedke, 278 Neb. 727, 775 N.W.2d 13 (2009).

In conjunction with this section and section 8-2207, a trustee has a statutory duty of impartiality. In re Trust of Rosenberg, 273 Neb. 59, 727 N.W.2d 430 (2007).

30-3869. (UTC 804) Prudent administration.

(UTC 804) A trustee shall administer the trust as a prudent person would, by considering the purposes, terms, distributional requirements, and other circumstances of the trust. In satisfying this standard, the trustee shall exercise reasonable care, skill, and caution.

Source:Laws 2003, LB 130, § 69.

30-3870. (UTC 805) Costs of administration.

(UTC 805) In administering a trust, the trustee may incur only costs that are reasonable in relation to the trust property, the purposes of the trust, and the skills of the trustee.

Source:Laws 2003, LB 130, § 70.

30-3871. (UTC 806) Trustee's skills.

(UTC 806) A trustee who has special skills or expertise, or is named trustee in reliance upon the trustee's representation that the trustee has special skills or expertise, shall use those special skills or expertise.

Source:Laws 2003, LB 130, § 71.

30-3872. Delegation by trustee.

A trustee may delegate functions as provided in section 30-3888.

Source:Laws 2003, LB 130, § 72.

30-3873. Repealed. Laws 2019, LB536, § 25.

30-3874. (UTC 809) Control and protection of trust property.

(UTC 809) A trustee shall take reasonable steps to take control of and protect the trust property.

Source:Laws 2003, LB 130, § 74.

30-3875. (UTC 810) Record keeping and identification of trust property.

(UTC 810) (a) A trustee shall keep adequate records of the administration of the trust.

(b) A trustee shall keep trust property separate from the trustee's own property.

(c) Except as otherwise provided in subsection (d) of this section, a trustee shall cause the trust property to be designated so that the interest of the trust, to the extent feasible, appears in records maintained by a party other than a trustee or beneficiary.

(d) If the trustee maintains records clearly indicating the respective interests, a trustee may invest as a whole the property of two or more separate trusts.

Source:Laws 2003, LB 130, § 75.

Annotations

A trustee's failure to keep required records is reason, among other things, for a court reviewing a judicial accounting to resolve doubts against the trustee. In re Estate of Hedke, 278 Neb. 727, 775 N.W.2d 13 (2009).

To further help prevent conflicts of interests, trustees are required to keep adequate records of the trust administration and to keep trust property separate from the trustee's property. In re Estate of Robb, 21 Neb. App. 429, 839 N.W.2d 368 (2013).

30-3876. (UTC 811) Enforcement and defense of claims.

(UTC 811) A trustee shall take reasonable steps to enforce claims of the trust and to defend claims against the trust.

Source:Laws 2003, LB 130, § 76.

30-3877. (UTC 812) Collecting trust property.

(UTC 812) A trustee shall take reasonable steps to compel a former trustee or other person to deliver trust property to the trustee, and to redress a breach of trust known to the trustee to have been committed by a former trustee.

Source:Laws 2003, LB 130, § 77.

30-3878. (UTC 813) Duty to inform and report.

(UTC 813) (a) A trustee shall keep the qualified beneficiaries of the trust reasonably informed about the administration of the trust and of the material facts necessary for them to protect their interests. Unless unreasonable under the circumstances, a trustee shall promptly respond to a beneficiary's request for information related to the administration of the trust.

(b) A trustee:

(1) upon request of a beneficiary, shall promptly furnish to the beneficiary a copy of the trust instrument;

(2) within sixty days after accepting a trusteeship, shall notify the qualified beneficiaries of the acceptance and of the trustee's name, address, and telephone number;

(3) within sixty days after the date the trustee acquires knowledge of the creation of an irrevocable trust, or the date the trustee acquires knowledge that a formerly revocable trust has become irrevocable, whether by the death of the settlor or otherwise, shall notify the qualified beneficiaries of the trust's existence, of the identity of the settlor or settlors, of the right to request a copy of the trust instrument, and of the right to a trustee's report as provided in subsection (c) of this section; and

(4) shall notify the qualified beneficiaries in advance of any change in the method or rate of the trustee's compensation.

(c) A trustee shall send to the distributees or permissible distributees of trust income or principal, and to other qualified or nonqualified beneficiaries who request it, at least annually and at the termination of the trust, a report of the trust property, liabilities, receipts, and disbursements, including the source and amount of the trustee's compensation, a listing of the trust assets and, if feasible, their respective market values. Upon a vacancy in a trusteeship, unless a cotrustee remains in office, a report must be sent to the qualified beneficiaries by the former trustee. A personal representative, conservator, or guardian may send the qualified beneficiaries a report on behalf of a deceased or incapacitated trustee.

(d) A beneficiary may waive the right to a trustee's report or other information otherwise required to be furnished under this section. A beneficiary, with respect to future reports and other information, may withdraw a waiver previously given.

(e) The duties of a trustee specified in this section are subject to the provisions of section 30-3855.

(f) Subdivisions (b)(2) and (3) of this section do not apply to a trustee who accepts a trusteeship before January 1, 2006, to an irrevocable trust created before January 1, 2006, or to a revocable trust that becomes irrevocable before January 1, 2006.

Source:Laws 2003, LB 130, § 78; Laws 2005, LB 533, § 45.

Annotations

The beneficiaries alleged sufficient facts for a court to find that the trustee's actions in providing a false address to the insurers of life insurance policies, which were the sole trust property, prevented the beneficiaries from receiving material facts necessary for them to protect their interests. Rafert v. Meyer, 290 Neb. 219, 859 N.W.2d 332 (2015).

30-3879. (UTC 814) Discretionary powers; tax savings.

(UTC 814) (a) Notwithstanding the breadth of discretion granted to a trustee in the terms of the trust, including the use of such terms as "absolute", "sole", or "uncontrolled", the trustee shall exercise a discretionary power in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries.

(b) Subject to subsection (d) of this section, and unless the terms of the trust expressly indicate that a rule in this subsection does not apply:

(1) a person other than a settlor who is a beneficiary and trustee of a trust that confers on the trustee a power to make discretionary distributions to or for the trustee's personal benefit may exercise the power only in accordance with an ascertainable standard; and

(2) a trustee may not exercise a power to make discretionary distributions to satisfy a legal obligation of support that the trustee personally owes another person.

(c) A power whose exercise is limited or prohibited by subsection (b) of this section may be exercised by a majority of the remaining trustees whose exercise of the power is not so limited or prohibited. If the power of all trustees is so limited or prohibited, the court may appoint a special fiduciary with authority to exercise the power.

(d) Subsection (b) of this section does not apply to:

(1) a power held by the settlor's spouse who is the trustee of a trust for which a marital deduction, as defined in section 2056(b)(5) or 2523(e) of the Internal Revenue Code as defined in section 49-801.01, was previously allowed;

(2) any trust during any period that the trust may be revoked or amended by its settlor; or

(3) a trust if contributions to the trust qualify for the annual exclusion under section 2503(c) of the Internal Revenue Code as defined in section 49-801.01.

Source:Laws 2003, LB 130, § 79; Laws 2005, LB 533, § 46.

30-3880. (UTC 815) General powers of trustee.

(UTC 815) (a) A trustee, without authorization by the court, may exercise:

(1) powers conferred by the terms of the trust; and

(2) except as limited by the terms of the trust:

(A) all powers over the trust property which an unmarried competent owner has over individually owned property;

(B) any other powers appropriate to achieve the proper investment, management, and distribution of the trust property; and

(b) The exercise of a power is subject to the fiduciary duties prescribed by sections 30-3866 to 30-3882.

Source:Laws 2003, LB 130, § 80; Laws 2015, LB72, § 1; Laws 2017, LB268, § 4; Laws 2019, LB593, § 2.

Annotations

A trustee may exercise powers conferred by the Nebraska Uniform Trust Code, except as limited by the terms of the trust. In re William R. Zutavern Revocable Trust, 309 Neb. 542, 961 N.W.2d 807 (2021).

All powers of a trustee, whether express or implied, are held in a fiduciary capacity, and their exercise or nonexercise is subject to the fiduciary duties of trusteeship. In re William R. Zutavern Revocable Trust, 309 Neb. 542, 961 N.W.2d 807 (2021).

30-3881. (UTC 816) Specific powers of trustee.

(UTC 816) (a) Without limiting the authority conferred by section 30-3880, a trustee may:

(1) collect trust property and accept or reject additions to the trust property from a settlor or any other person;

(2) acquire or sell property, for cash or on credit, at public or private sale;

(3) exchange, partition, or otherwise change the character of trust property;

(4) deposit trust money in an account in a regulated financial-service institution;

(5) borrow money, including from the trustee, with or without security, and mortgage or pledge trust property for a period within or extending beyond the duration of the trust;

(6) with respect to an interest in a proprietorship, partnership, limited liability company, business trust, corporation, or other form of business or enterprise, continue the business or other enterprise and take any action that may be taken by shareholders, members, or property owners, including merging, dissolving, or otherwise changing the form of business organization or contributing additional capital;

(7) with respect to stocks or other securities, exercise the rights of an absolute owner, including the right to:

(A) vote, or give proxies to vote, with or without power of substitution, or enter into or continue a voting trust agreement;

(B) hold a security in the name of a nominee or in other form without disclosure of the trust so that title may pass by delivery;

(C) pay calls, assessments, and other sums chargeable or accruing against the securities, and sell or exercise stock subscription or conversion rights; and

(D) deposit the securities with a depositary or other regulated financial-service institution;

(8) with respect to an interest in real property, construct, or make ordinary or extraordinary repairs to, alterations to, or improvements in, buildings or other structures, demolish improvements, raze existing or erect new party walls or buildings, subdivide or develop land, dedicate land to public use or grant public or private easements, and make or vacate plats and adjust boundaries;

(9) enter into a lease for any purpose as lessor or lessee, including a lease or other arrangement for exploration and removal of natural resources, with or without the option to purchase or renew, for a period within or extending beyond the duration of the trust;

(10) grant an option involving a sale, lease, or other disposition of trust property or acquire an option for the acquisition of property, including an option exercisable beyond the duration of the trust, and exercise an option so acquired;

(11) insure the property of the trust against damage or loss and insure the trustee, the trustee's agents, and beneficiaries against liability arising from the administration of the trust;

(12) abandon or decline to administer property of no value or of insufficient value to justify its collection or continued administration;

(13) with respect to possible liability for violation of environmental law:

(A) inspect or investigate property the trustee holds or has been asked to hold, or property owned or operated by an organization in which the trustee holds or has been asked to hold an interest, for the purpose of determining the application of environmental law with respect to the property;

(B) take action to prevent, abate, or otherwise remedy any actual or potential violation of any environmental law affecting property held directly or indirectly by the trustee, whether taken before or after the assertion of a claim or the initiation of governmental enforcement;

(C) decline to accept property into trust or disclaim any power with respect to property that is or may be burdened with liability for violation of environmental law;

(D) compromise claims against the trust which may be asserted for an alleged violation of environmental law; and

(E) pay the expense of any inspection, review, abatement, or remedial action to comply with environmental law;

(14) pay or contest any claim, settle a claim by or against the trust, and release, in whole or in part, a claim belonging to the trust;

(15) pay taxes, assessments, compensation of the trustee and of employees and agents of the trust, and other expenses incurred in the administration of the trust;

(16) exercise elections with respect to federal, state, and local taxes;

(17) select a mode of payment under any employee benefit or retirement plan, annuity, or life insurance payable to the trustee, exercise rights thereunder, including exercise of the right to indemnification for expenses and against liabilities, and take appropriate action to collect the proceeds;

(18) make loans out of trust property, including loans to a beneficiary on terms and conditions the trustee considers to be fair and reasonable under the circumstances, and the trustee has a lien on future distributions for repayment of those loans;

(19) pledge trust property to guarantee loans made by others to the beneficiary;

(20) appoint a trustee to act in another jurisdiction with respect to trust property located in the other jurisdiction, confer upon the appointed trustee all of the powers and duties of the appointing trustee, require that the appointed trustee furnish security, and remove any trustee so appointed;

(21) pay an amount distributable to a beneficiary who is under a legal disability or who the trustee reasonably believes is incapacitated, by paying it directly to the beneficiary or applying it for the beneficiary's benefit, or by:

(A) paying it to the beneficiary's conservator or, if the beneficiary does not have a conservator, the beneficiary's guardian;

(B) paying it to the beneficiary's custodian under the Nebraska Uniform Transfers to Minors Act or custodial trustee under the Nebraska Uniform Custodial Trust Act, and, for that purpose, creating a custodianship or custodial trust;

(C) if the trustee does not know of a conservator, guardian, custodian, or custodial trustee, paying it to an adult relative or other person having legal or physical care or custody of the beneficiary, to be expended on the beneficiary's behalf; or

(D) managing it as a separate fund on the beneficiary's behalf, subject to the beneficiary's continuing right to withdraw the distribution;

(22) on distribution of trust property or the division or termination of a trust, make distributions in divided or undivided interests, allocate particular assets in proportionate or disproportionate shares, value the trust property for those purposes, and adjust for resulting differences in valuation;

(23) resolve a dispute concerning the interpretation of the trust or its administration by mediation, arbitration, or other procedure for alternative dispute resolution;

(24) prosecute or defend an action, claim, or judicial proceeding in any jurisdiction to protect trust property and the trustee in the performance of the trustee's duties;

(25) sign and deliver contracts and other instruments that are useful to achieve or facilitate the exercise of the trustee's powers; and

(26) on termination of the trust, exercise the powers appropriate to wind up the administration of the trust and distribute the trust property to the persons entitled to it.

(b) Except as otherwise provided under the terms of the trust, a trustee, other than a trustee who is a related or subordinate party with respect to the settlor within the meaning of section 672(c) of the Internal Revenue Code as defined in section 49-801.01, may, from time to time, in the trustee's absolute discretion, pay directly to the taxing authorities or reimburse the settlor for any tax on trust income or principal that is payable by the settlor for the portion of the settlor's income tax liability attributable to the trust under sections 671 to 678 of the Internal Revenue Code as defined in section 49-801.01 or any similar tax law. A trustee shall not exercise or participate in the exercise of discretion pursuant to this subsection in a manner that (1) would cause the inclusion of the trust assets in the settlor's gross taxable estate for federal estate tax purposes at the time of exercise or (2) is inconsistent with the qualification of all or any portion of the trust for the federal gift or estate tax marital deduction, to the extent the trust is intended to qualify for such deduction.

Source:Laws 2003, LB 130, § 81; Laws 2015, LB72, § 2; Laws 2017, LB268, § 5; Laws 2019, LB593, § 3; Laws 2022, LB707, § 33.

Cross References

Nebraska Uniform Custodial Trust Act, see section 30-3501.

Nebraska Uniform Transfers to Minors Act, see section 43-2701.

Annotations

Pursuant to subsection (26) of this section, after the termination of a trust, the trustees continue to have a nonbeneficial interest in the trust for timely winding it up and distributing its assets; but their powers are limited to those that are reasonable and appropriate to the expeditious distribution of the trust property and preserving the trust property pending the winding up and distribution of that property. In re Estate of Barger, 303 Neb. 817, 931 N.W.2d 660 (2019).

A trustee's duty of impartiality in administering trust property plays particular importance in distributing assets. In re Estate of Hedke, 278 Neb. 727, 775 N.W.2d 13 (2009).

After a trust terminates, a trustee continues to have a nonbeneficial interest in the trust for timely winding up the trust and distributing its assets. But after a trust terminates, a trustee's property management powers are limited to those that are reasonable and appropriate in preserving the trust property, pending the winding up and distribution of assets. In re Estate of Hedke, 278 Neb. 727, 775 N.W.2d 13 (2009).

30-3882. (UTC 817) Distribution upon termination.

(UTC 817) (a) Upon termination or partial termination of a trust, the trustee may send to the beneficiaries a proposal for distribution. The right of any beneficiary to object to the proposed distribution terminates if the beneficiary does not notify the trustee of an objection within thirty days after the proposal was sent but only if the proposal informed the beneficiary of the right to object and of the time allowed for objection.

(b) Upon the occurrence of an event terminating or partially terminating a trust, the trustee shall proceed expeditiously to distribute the trust property to the persons entitled to it, subject to the right of the trustee to retain a reasonable reserve for the payment of debts, expenses, and taxes.

(1) it was induced by improper conduct of the trustee; or

(2) the beneficiary, at the time of the release, did not know of the beneficiary's rights or of the material facts relating to the breach.

(d) The changes made to this section by Laws 2019, LB593, shall apply retroactively to August 30, 2015.

Source:Laws 2003, LB 130, § 82; Laws 2015, LB72, § 3; Laws 2017, LB268, § 6; Laws 2019, LB593, § 4.

Annotations

Pursuant to subsection (b) of this section, after a trust has been terminated, a trustee must expeditiously exercise the powers appropriate to wind up the administration of the trust and distribute the trust property to the persons entitled to it. In re Estate of Barger, 303 Neb. 817, 931 N.W.2d 660 (2019).

Under this section, a trustee's duty to pay the settlor's debts, expenses, and taxes does not normally justify a trustee's failure to make distributions. An unduly delayed distribution is a breach of the duty of care unless the trustee shows that some realistic complication prevented the trustee from determining in a timely manner a reasonable sum to reserve for winding-up costs. In re Estate of Hedke, 278 Neb. 727, 775 N.W.2d 13 (2009).

30-3883. Prudent investor rule.

(a) Except as otherwise provided in subsection (b) of this section, a trustee who invests and manages trust assets owes a duty to the beneficiaries of the trust to comply with the prudent investor rule set forth in sections 30-3883 to 30-3889.

(b) The prudent investor rule, a default rule, may be expanded, restricted, eliminated, or otherwise altered by the provisions of a trust. A trustee is not liable to a beneficiary to the extent that the trustee acted in reasonable reliance on the provisions of the trust.

Source:Laws 1997, LB 54, § 2; R.S.1943, (1997), § 8-2202; Laws 2003, LB 130, § 83.

30-3884. Standard of care; portfolio strategy; risk and return objectives.

(a) A trustee shall invest and manage trust assets as a prudent investor would, by considering the purposes, terms, distribution requirements, and other circumstances of the trust. In satisfying this standard, the trustee shall exercise reasonable care, skill, and caution.

(b) A trustee's investment and management decisions respecting individual assets must be evaluated not in isolation but in the context of the trust portfolio as a whole and as a part of an overall investment strategy having risk and return objectives reasonably suited to the trust.

(c) Among circumstances that a trustee shall consider in investing and managing trust assets are such of the following as are relevant to the trust or its beneficiaries:

(1) General economic conditions;

(2) The possible effect of inflation or deflation;

(3) The expected tax consequences of investment decisions or strategies;

(4) The role that each investment or course of action plays within the overall trust portfolio, which may include financial assets, interests in closely held enterprises, tangible and intangible personal property, and real property;

(5) The expected total return from income and the appreciation of capital;

(6) Other resources of the beneficiaries;

(7) Needs for liquidity, regularity of income, and preservation or appreciation of capital; and

(8) An asset's special relationship or special value, if any, to the purposes of the trust or to one or more of the beneficiaries.

(d) A trustee shall make a reasonable effort to verify facts relevant to the investment and management of trust assets.

(e) A trustee may invest in any kind of property or type of investment consistent with the standards of the prudent investor rule set forth in sections 30-3883 to 30-3889.

Source:Laws 1997, LB 54, § 3; R.S.1943, (1997), § 8-2203; Laws 2003, LB 130, § 84.

30-3885. Diversification.

A trustee shall diversify the investments of the trust unless the trustee reasonably determines that, because of special circumstances, the purposes of the trust are better served without diversifying.

Source:Laws 1997, LB 54, § 4; R.S.1943, (1997), § 8-2204; Laws 2003, LB 130, § 85.

30-3886. Duties at inception of trusteeship.

Within a reasonable time after accepting a trusteeship or receiving trust assets, a trustee shall review the trust assets and make and implement decisions concerning the retention and disposition of assets, in order to bring the trust portfolio into compliance with the purposes, terms, distribution requirements, and other circumstances of the trust, and with the requirements of the prudent investor rule set forth in sections 30-3883 to 30-3889.

Source:Laws 1997, LB 54, § 5; R.S.1943, (1997), § 8-2205; Laws 2003, LB 130, § 86.

30-3887. Reviewing compliance.

Compliance with the prudent investor rule is determined in light of the facts and circumstances existing at the time of a trustee's decision or action and not by hindsight.

Source:Laws 1997, LB 54, § 9; R.S.1943, (1997), § 8-2209; Laws 2003, LB 130, § 87.

30-3888. Delegation of investment and management functions.

(a) A trustee may delegate investment and management functions that a prudent trustee of comparable skills could properly delegate under the circumstances. The trustee shall exercise reasonable care, skill, and caution in:

(1) Selecting an agent;

(2) Establishing the scope and terms of the delegation, consistent with the purposes and terms of the trust; and

(3) Periodically reviewing the agent's actions in order to monitor the agent's performance and compliance with the terms of the delegation.

(b) In performing a delegated function, an agent owes a duty to the trust to exercise reasonable care to comply with the terms of the delegation.

(c) A trustee who complies with the requirements of subsection (a) of this section is not liable to the beneficiaries or to the trust for the decisions or actions of the agent to whom the function was delegated.

(d) By accepting the delegation of a trust function from the trustee of a trust that is subject to the law of this state, an agent submits to the jurisdiction of the courts of this state.

Source:Laws 1997, LB 54, § 10; R.S.1943, (1997), § 8-2210; Laws 2003, LB 130, § 88.

30-3889. Language invoking standard of prudent investor rule.

The following terms or comparable language in the provisions of a trust, unless otherwise limited or modified, authorizes any investment or strategy permitted under the prudent investor rule set forth in sections 30-3883 to 30-3889: Investments permissible by law for investment of trust funds, legal investments, authorized investments, using the judgment and care under the circumstances then prevailing that persons of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital, prudent man rule, prudent trustee rule, prudent person rule, and prudent investor rule.

Source:Laws 1997, LB 54, § 11; R.S.1943, (1997), § 8-2211; Laws 2003, LB 130, § 89.

30-3890. (UTC 1001) Remedies for breach of trust.

(UTC 1001) (a) A violation by a trustee of a duty the trustee owes to a beneficiary is a breach of trust.

(b) To remedy a breach of trust that has occurred or may occur, the court may:

(1) compel the trustee to perform the trustee's duties;

(2) enjoin the trustee from committing a breach of trust;

(3) compel the trustee to redress a breach of trust by paying money, restoring property, or other means;

(4) order a trustee to account;

(5) appoint a special fiduciary to take possession of the trust property and administer the trust;

(6) suspend the trustee;

(7) remove the trustee as provided in section 30-3862;

(8) reduce or deny compensation to the trustee;

(9) subject to section 30-38,101, void an act of the trustee, impose a lien or a constructive trust on trust property, or trace trust property wrongfully disposed of and recover the property or its proceeds; or

(10) order any other appropriate relief.

Source:Laws 2003, LB 130, § 90.

Annotations

An accounting is ordinarily an appropriate remedy for a breach of a trustee’s duty to inform and report on a trust and its administration. In re Rolf H. Brennemann Testamentary Trust, 288 Neb. 389, 849 N.W.2d 458 (2014).

When a trustee unduly delays distributions from a trust, the trustee has breached a duty of care owed to a beneficiary, and the violation of that duty is a breach of trust. In re Trust Created by Augustin, 27 Neb. App. 593, 935 N.W.2d 493 (2019).

Under subsection (b) of this section, the court has various options available to remedy a violation by a trustee of a duty the trustee owes to a beneficiary. In re Louise v. Steinhoefel Trust, 22 Neb. App. 293, 854 N.W.2d 792 (2014).

30-3891. (UTC 1002) Damages for breach of trust.

(UTC 1002) (a) A trustee who commits a breach of trust is liable to the beneficiaries affected for the greater of:

(1) the amount required to restore the value of the trust property and trust distributions to what they would have been had the breach not occurred; or

(2) the profit the trustee made by reason of the breach.

(b) Except as otherwise provided in this subsection, if more than one trustee is liable to the beneficiaries for a breach of trust, a trustee is entitled to contribution from the other trustee or trustees. A trustee is not entitled to contribution if the trustee was substantially more at fault than another trustee or if the trustee committed the breach of trust in bad faith or with reckless indifference to the purposes of the trust or the interests of the beneficiaries. A trustee who received a benefit from the breach of trust is not entitled to contribution from another trustee to the extent of the benefit received.

Source:Laws 2003, LB 130, § 91.

Annotations

30-3892. (UTC 1003) Damages in absence of breach.

(UTC 1003) (a) A trustee is accountable to an affected beneficiary for any profit made by the trustee arising from the administration of the trust, even absent a breach of trust.

(b) Absent a breach of trust, a trustee is not liable to a beneficiary for a loss or depreciation in the value of trust property or for not having made a profit.

Source:Laws 2003, LB 130, § 92.

30-3893. (UTC 1004) Attorney's fees and costs.

(UTC 1004) In a judicial proceeding involving the administration of a trust, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney's fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.

Source:Laws 2003, LB 130, § 93.

Annotations

An accounting is ordinarily an appropriate remedy for a breach of trustee’s duty to inform and report on a trust and its administration. In re Rolf H. Brennemann Testamentary Trust, 288 Neb. 389, 849 N.W.2d 458 (2014).

The county court had the authority to consider an award of attorney fees in an action for an accounting where the trustees had breached their duty to inform and report to the beneficiary on the trust and its administration, even if the breach was harmless. In re Rolf H. Brennemann Testamentary Trust, 288 Neb. 389, 849 N.W.2d 458 (2014).

Whether attorney fees and expenses are awarded is addressed to the discretion of the trial court. In re Trust of Rosenberg, 273 Neb. 59, 727 N.W.2d 430 (2007).

30-3894. (UTC 1005) Limitation of action against trustee.

(UTC 1005) (a) A beneficiary may not commence a proceeding against a trustee for breach of trust more than one year after the date the beneficiary or a representative of the beneficiary was sent a report that adequately disclosed the existence of a potential claim for breach of trust and informed the beneficiary of the time allowed for commencing a proceeding.

(b) A report adequately discloses the existence of a potential claim for breach of trust if it provides sufficient information so that the beneficiary or representative knows of the potential claim or should have inquired into its existence.

(c) If subsection (a) of this section does not apply, a judicial proceeding by a beneficiary against a trustee for breach of trust must be commenced within four years after the first to occur of:

(1) the removal, resignation, or death of the trustee;

(2) the termination of the beneficiary's interest in the trust; or

(3) the termination of the trust.

Source:Laws 2003, LB 130, § 94.

Annotations

The court viewed this section as recognition of the general rule that a cause of action for breach of trust, including a request for accounting, does not accrue until termination of the trust, with an exception if a potential claim for breach of trust is disclosed to the beneficiary. In re Charles C. Wells Revocable Trust, 15 Neb. App. 624, 734 N.W.2d 323 (2007).

30-3895. (UTC 1006) Reliance on trust instrument.

(UTC 1006) A trustee who acts in reasonable reliance on the terms of the trust as expressed in the trust instrument is not liable to a beneficiary for a breach of trust to the extent the breach resulted from the reliance.

Source:Laws 2003, LB 130, § 95.

30-3896. (UTC 1007) Event affecting administration or distribution.

(UTC 1007) If the happening of an event, including marriage, divorce, performance of educational requirements, or death, affects the administration or distribution of a trust, a trustee who has exercised reasonable care to ascertain the happening of the event is not liable for a loss resulting from the trustee's lack of knowledge.

Source:Laws 2003, LB 130, § 96.

30-3897. (UTC 1008) Exculpation of trustee.

(UTC 1008) (a) A term of a trust relieving a trustee of liability for breach of trust is unenforceable to the extent that it:

(1) relieves the trustee of liability for breach of trust committed in bad faith or with reckless indifference to the purposes of the trust or the interests of the beneficiaries; or

(2) was inserted as the result of an abuse by the trustee of a fiduciary or confidential relationship to the settlor.

(b) An exculpatory term drafted or caused to be drafted by the trustee is invalid as an abuse of a fiduciary or confidential relationship unless the trustee proves that the exculpatory term is fair under the circumstances and that its existence and contents were adequately communicated to the settlor.

Source:Laws 2003, LB 130, § 97.

Annotations

An exculpatory clause in a trust agreement is invalid where the attorney who drafted the trust agreement never met with the settlor or explained the terms of the trust and the respective duties of each party. Rafert v. Meyer, 290 Neb. 219, 859 N.W.2d 332 (2015).

30-3898. (UTC 1009) Beneficiary's consent, release, or ratification.

(UTC 1009) A trustee is not liable to a beneficiary for breach of trust if the beneficiary consented to the conduct constituting the breach, released the trustee from liability for the breach, or ratified the transaction constituting the breach, unless:

(1) the consent, release, or ratification of the beneficiary was induced by improper conduct of the trustee; or

(2) at the time of the consent, release, or ratification, the beneficiary did not know of the beneficiary's rights or of the material facts relating to the breach.

Source:Laws 2003, LB 130, § 98.

30-3899. (UTC 1010) Limitation on personal liability of trustee.

(UTC 1010) (a) Except as otherwise provided in the contract, a trustee is not personally liable on a contract properly entered into in the trustee's fiduciary capacity in the course of administering the trust if the trustee in the contract disclosed the fiduciary capacity.

(b) A trustee is personally liable for torts committed in the course of administering a trust, or for obligations arising from ownership or control of trust property, including liability for violation of environmental law, only if the trustee is personally at fault.

(c) A claim based on a contract entered into by a trustee in the trustee's fiduciary capacity, on an obligation arising from ownership or control of trust property, or on a tort committed in the course of administering a trust, may be asserted in a judicial proceeding against the trustee in the trustee's fiduciary capacity, whether or not the trustee is personally liable for the claim.

Source:Laws 2003, LB 130, § 99.

30-38,100. (UTC 1011) Interest as general partner.

(UTC 1011) (a) Except as otherwise provided in subsection (c) of this section or unless personal liability is imposed in the contract, a trustee who holds an interest as a general partner in a general or limited partnership is not personally liable on a contract entered into by the partnership after the trust's acquisition of the interest if the fiduciary capacity was disclosed in the contract or in a statement previously filed pursuant to the Uniform Partnership Act of 1998 or the Nebraska Uniform Limited Partnership Act.

(b) Except as otherwise provided in subsection (c) of this section, a trustee who holds an interest as a general partner is not personally liable for torts committed by the partnership or for obligations arising from ownership or control of the interest unless the trustee is personally at fault.

(c) The immunity provided by this section does not apply if an interest in the partnership is held by the trustee in a capacity other than that of trustee or is held by the trustee's spouse or one or more of the trustee's descendants, siblings, or parents, or the spouse of any of them.

(d) If the trustee of a revocable trust holds an interest as a general partner, the settlor is personally liable for contracts and other obligations of the partnership as if the settlor were a general partner.

Source:Laws 2003, LB 130, § 100.

Cross References

Nebraska Uniform Limited Partnership Act, see section 67-296.

Uniform Partnership Act of 1998, see section 67-401.

30-38,101. (UTC 1012) Protection of person dealing with trustee.

(UTC 1012) (a) A person other than a beneficiary who in good faith assists a trustee, or who in good faith and for value deals with a trustee, without knowledge that the trustee is exceeding or improperly exercising the trustee's powers is protected from liability as if the trustee properly exercised the power.

(b) A person other than a beneficiary who in good faith deals with a trustee is not required to inquire into the extent of the trustee's powers or the propriety of their exercise.

(d) A person other than a beneficiary who in good faith assists a former trustee, or who in good faith and for value deals with a former trustee, without knowledge that the trusteeship has terminated is protected from liability as if the former trustee were still a trustee.

(e) Comparable protective provisions of other laws relating to commercial transactions or transfer of securities by fiduciaries prevail over the protection provided by this section.

Source:Laws 2003, LB 130, § 101.

Annotations

The trial court did not err in dismissing claims for a constructive trust against a purchaser, because the purchaser dealt in good faith with the trustees and had no reason to believe they participated in a breach of trust. Junker v. Carlson, 300 Neb. 423, 915 N.W.2d 542 (2018).

30-38,102. Certification of trust; use; form.

(a) A trustee may present a certification of trust to any person other than a beneficiary in lieu of a copy of any trust instrument to establish the existence or terms of the trust. The trustee may present the certification of trust voluntarily or at the request of the person with whom he or she is dealing. Notwithstanding any provision of the Nebraska Uniform Trust Code to the contrary, no person is required to accept and rely solely on a certification of trust in lieu of a copy of, or excerpts from, the trust instrument itself.

(b) A certification of trust shall be in the form of an affidavit and signed and acknowledged by all acting trustees of the trust.

Source:Laws 2000, LB 1197, § 1; R.S.Supp.,2002, § 30-3701; Laws 2003, LB 130, § 102.

30-38,103. Certification of trust; contents.

(a) A certification of trust may confirm the following facts or contain the following information:

(1) The existence of a trust and, for an inter vivos trust, the date of execution or, for a testamentary trust, the date of death of the decedent;

(2) The identity of the grantor, settlor, or testator and each currently acting trustee;

(3) The powers of the trustee and any restrictions imposed upon the trustee in dealing with the assets of the trust;

(4) The name or method of choosing successor trustees;

(5) The revocability or irrevocability of the trust and the identity of any person holding a power to revoke it;

(6) If there is more than one trustee, whether all of the currently acting trustees must, or if less than all, may, act to exercise identified powers of the trustee;

(7) The identifying number of the trust and whether it is a social security number or an employer identification number;

(8) The name of each beneficiary and the relationship to the grantor, settlor, or testator;

(9) The state or other jurisdiction under which the trust was established; and

(10) The form in which title to the assets of the trust is to be taken.

(b) The certification of trust shall contain a statement that the trust has not been revoked or amended to make any representations contained in the certification of trust incorrect and that the signatures are those of all the acting trustees.

Source:Laws 2000, LB 1197, § 2; R.S.Supp.,2002, § 30-3702; Laws 2003, LB 130, § 103.

30-38,104. Certification of trust; additional information authorized.

A certification of trust need not contain the dispositive provisions of the trust, but the person to whom the certification of trust is presented may require copies of, or excerpts from, any trust instrument which designates the trustee or confers upon the trustee power to act in the pending transaction.

Source:Laws 2000, LB 1197, § 3; R.S.Supp.,2002, § 30-3703; Laws 2003, LB 130, § 104.

30-38,105. Reliance upon certification of trust; liability.

A person who acts in reliance upon a certification of trust without any knowledge that the representations contained in the certification of trust are incorrect is not liable to any person for such actions. A person who does not know that the representations contained in the certification of trust are incorrect may assume without inquiry the existence of the representations contained in the certification of trust. Knowledge may not be inferred solely from the fact that a copy of all or part of a trust instrument is held by the person relying upon the certification of trust.

Source:Laws 2000, LB 1197, § 4; R.S.Supp.,2002, § 30-3704; Laws 2003, LB 130, § 105.

30-38,106. Certification of trust; use; effect.

A person's failure to demand a certification of trust, or his or her refusal to accept and rely solely on a certification of trust, shall not be considered an improper act, and no inference as to whether he or she has acted in good faith shall be drawn from the failure to demand, or the refusal to accept and rely upon, a certification of trust. This section creates no implication that a person is liable for acting in reliance upon a certification of trust under circumstances in which the requirements of sections 30-38,102 to 30-38,107 are not satisfied.

Source:Laws 2000, LB 1197, § 5; R.S.Supp.,2002, § 30-3705; Laws 2003, LB 130, § 106.

30-38,107. Sections; applicability.

Sections 30-38,102 to 30-38,106 apply to all trusts whether established pursuant to Nebraska law or established pursuant to the law of another state or jurisdiction.

Source:Laws 2000, LB 1197, § 6; R.S.Supp.,2002, § 30-3706; Laws 2003, LB 130, § 107.

30-38,108. (UTC 1101) Uniformity of application and construction.

(UTC 1101) In applying and construing the Nebraska Uniform Trust Code, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

Source:Laws 2003, LB 130, § 108.

30-38,109. (UTC 1102) Electronic records and signatures.

(UTC 1102) The provisions of the Nebraska Uniform Trust Code governing the legal effect, validity, or enforceability of electronic records or electronic signatures, and of contracts formed or performed with the use of such records or signatures, conform to the requirements of section 102 of the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7002, as such section existed on January 1 immediately preceding January 1, 2005, and supersede, modify, and limit the requirements of the Electronic Signatures in Global and National Commerce Act.

Source:Laws 2003, LB 130, § 109.

30-38,110. (UTC 1106) Application to existing relationships.

(UTC 1106) (a) Except as otherwise provided in the Nebraska Uniform Trust Code, on January 1, 2005:

(1) the code applies to all trusts created before, on, or after January 1, 2005;

(2) the code applies to all judicial proceedings concerning trusts commenced on or after January 1, 2005;

(3) the code applies to judicial proceedings concerning trusts commenced before January 1, 2005, unless the court finds that application of a particular provision of the code would substantially interfere with the effective conduct of the judicial proceedings or prejudice the rights of the parties, in which case the particular provision of the code does not apply and the superseded law applies; and

(4) an act done before January 1, 2005, is not affected by the code.

(b) If a right is acquired, extinguished, or barred upon the expiration of a prescribed period that has commenced to run under any other statute before January 1, 2005, that statute continues to apply to the right even if it has been repealed or superseded.

(c) Any reference to the powers authorized under the Nebraska Trustees' Powers Act as such act existed prior to January 1, 2005, is deemed to be a reference to the powers authorized under the Nebraska Uniform Trust Code.

(d) Subsection (a) of section 30-3838, section 30-3839, section 30-3848, subsection (c) of section 30-3849, and subdivision (b)(1) of section 30-3879 apply only to trusts which become irrevocable on or after January 1, 2005.

Source:Laws 2003, LB 130, § 110; Laws 2004, LB 999, § 29; Laws 2007, LB124, § 28.

Annotations

Because a statutory duty of impartiality existed under either section 8-2207 or section 30-3868, application of the Nebraska Uniform Trust Code would not substantially prejudice the rights of the parties in determining trustee impartiality. In re Trust of Rosenberg, 273 Neb. 59, 727 N.W.2d 430 (2007).

Under subsection (a)(1) of this section, the Nebraska Uniform Trust Code is generally applicable to all trusts in existence on January 1, 2005, subject to certain statutory and perhaps constitutional exceptions. In re Trust Created by Inman, 269 Neb. 376, 693 N.W.2d 514 (2005).

Because no prejudice to the parties appeared, court applied Nebraska Uniform Trust Code to judicial proceeding commenced prior to operative date of code. In re Charles C. Wells Revocable Trust, 15 Neb. App. 624, 734 N.W.2d 323 (2007).

30-38,111. Individuals with disabilities; policy of the state.

It is the policy of the State of Nebraska to encourage the use of an achieving a better life experience account established as provided in sections 77-1401 to 77-1409 under a qualified ABLE program as defined under section 529A of the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder or a special needs trust by an individual with disabilities to preserve funds to provide for the needs of the individual that are not met by governmental benefits and that enhance such individual's quality of life.

Source:Laws 2024, LB1074, § 75.
Operative Date: July 19, 2024

30-38,112. Terms, defined.

For purposes of sections 30-38,111 to 30-38,115:

(1) Beneficiary with a disability means a beneficiary of a trust, who a special needs fiduciary believes may qualify for governmental benefits based on disability whether or not the beneficiary currently receives those benefits, or who is an individual who has been adjudicated to be disabled;

(2) Governmental benefits means financial aid or services from a state, federal, or other public agency;

(3) Pooled special needs trust means a trust which combines assets and is managed by a nonprofit association providing a separate account maintained for each beneficiary with a disability;

(4) Self-settled special needs trust means a trust which has been funded with the assets of a beneficiary with a disability and includes a first party special needs trust;

(5) Special needs fiduciary means a trustee or other fiduciary, other than a settlor, that has discretion to distribute, or is required to distribute, part or all of the principal of a trust to a current beneficiary with a disability;

(6) Special needs trust means a trust the trustee believes would not be considered a resource for purposes of determining whether a beneficiary with a disability is eligible for governmental benefits and includes a supplemental needs trust; and

(7) Third-party special needs trust means a trust which has been funded with the assets of an individual other than the beneficiary with a disability.

Source:Laws 2024, LB1074, § 76.
Operative Date: July 19, 2024

30-38,113. State agency; means-tested programs; rules and regulations.

(1) Each state agency that provides governmental benefits to individuals of any age with disabilities through means-tested programs, including the medical assistance program, shall adopt and promulgate rules and regulations that:

(a) Are not more restrictive than existing federal law, regulations, or policies with regard to the treatment of a special needs trust, including a trust defined in 42 U.S.C. 1396p(c)(2) and 42 U.S.C. 1396p(d)(4);

(b) Are not more restrictive than any state law regarding trusts, including any state law relating to the reasonable exercise of discretion by a trustee, guardian, or conservator in the best interests of the beneficiary;

(c) Do not require disclosure of a beneficiary's personal or confidential information without the consent of the beneficiary;

(d) Allow an individual account in a pooled special needs trust to be funded without financial limit;

(e) Allow an individual to establish or fund an individual account in a pooled special needs trust without an age limit or a transfer penalty;

(f) Allow an individual to fund a special needs trust for the individual's child with disabilities without a transfer penalty and regardless of the child's age; and

(g) Allow all legally assignable income or resources to be assigned to any special needs trust without limit.

(2) Nothing in this section may be interpreted to require a court order to authorize the funding of, or a disbursement from, a special needs trust.

Source:Laws 2024, LB1074, § 77.
Operative Date: July 19, 2024

30-38,114. Nonprofit status; determination; effect.

(1) A determination by the Internal Revenue Service regarding the nonprofit status of a nonprofit organization operating a pooled special needs trust shall be sufficient to satisfy the nonprofit requirement of 42 U.S.C. 1396p(d)(4)(C).

(2) A state agency may not impose additional requirements on an organization described in subsection (1) of this section for the purpose of qualifying or disqualifying the organization from offering a pooled special needs trust.

Source:Laws 2024, LB1074, § 78.
Operative Date: July 19, 2024

30-38,115. Special needs trusts; applicability of rules and regulations.

Any rule or regulation adopted and promulgated by a state agency regarding pooled special needs trusts shall apply only to those trust beneficiaries who are residents of the state or who receive governmental benefits funded by the state.

Source:Laws 2024, LB1074, § 79.
Operative Date: July 19, 2024

30-3901. Act, how cited.

Sections 30-3901 to 30-3923 shall be known and may be cited as the Nebraska Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act.

Source:Laws 2011, LB157, § 5.

30-3902. Definitions.

In the Nebraska Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act:

(1) Adult means an individual who has attained nineteen years of age;

(2) Conservator means a person appointed by the court to administer the property of an adult, including a person appointed under the Nebraska Probate Code for an adult;

(3) Guardian means a person appointed by the court to make decisions regarding the person of an adult, including a person appointed under the Nebraska Probate Code for an adult;

(4) Guardianship order means an order appointing a guardian;

(5) Guardianship proceeding means a judicial proceeding in which an order for the appointment of a guardian is sought or has been issued;

(6) Incapacitated person means an adult for whom a guardian has been appointed;

(7) Party means the respondent, petitioner, guardian, conservator, or any other person allowed by the court to participate in a guardianship or protective proceeding;

(8) Person, except in the term incapacitated person or protected person, means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity;

(9) Protected person means an adult for whom a protective order has been issued;

(10) Protective order means an order appointing a conservator or other order related to management of an adult's property;

(11) Protective proceeding means a judicial proceeding in which a protective order is sought or has been issued;

(12) Record means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;

(13) Respondent means an adult for whom a protective order or the appointment of a guardian is sought; and

(14) State means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.

Source:Laws 2011, LB157, § 6.

30-3903. International application of act.

A court of this state may treat a foreign country as if it were a state for the purpose of applying sections 30-3901 to 30-3917 and 30-3921 to 30-3923.

Source:Laws 2011, LB157, § 7.

30-3904. Communication between courts.

(1) A court of this state may communicate with a court in another state concerning a proceeding arising under the Nebraska Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. The court may allow the parties to participate in the communication. Except as otherwise provided in subsection (2) of this section, the court shall make a record of the communication. The record may be limited to the fact that the communication occurred.

(2) Courts may communicate concerning schedules, calendars, court records, and other administrative matters without making a record.

Source:Laws 2011, LB157, § 8.

30-3905. Cooperation between courts.

(1) In a guardianship or protective proceeding in this state, a court of this state may request the appropriate court of another state to do any of the following:

(a) Hold an evidentiary hearing;

(b) Order a person in that state to produce evidence or give testimony pursuant to procedures of that state;

(d) Order any appropriate investigation of a person involved in a proceeding;

(e) Forward to the court of this state a certified copy of the transcript or other record of a hearing under subdivision (a) of this subsection or any other proceeding, any evidence otherwise produced under subdivision (b) of this subsection, and any evaluation or assessment prepared in compliance with an order under subdivision (c) or (d) of this subsection;

(f) Issue any order necessary to assure the appearance in the proceeding of a person whose presence is necessary for the court to make a determination, including the respondent or the incapacitated or protected person; or

(g) Issue an order authorizing the release of medical, financial, criminal, or other relevant information in that state, including protected health information as defined in 45 C.F.R. 160.103, as such regulation existed on January 1, 2011.

(2) If a court of another state in which a guardianship or protective proceeding is pending requests assistance of the kind provided in subsection (1) of this section, a court of this state has jurisdiction for the limited purpose of granting the request or making reasonable efforts to comply with the request.

Source:Laws 2011, LB157, § 9.

30-3906. Taking testimony in another state.

(1) In a guardianship or protective proceeding, in addition to other procedures that may be available, testimony of a witness who is located in another state may be offered by deposition or other means allowable in this state for testimony taken in another state. The court on its own motion may order that the testimony of a witness be taken in another state and may prescribe the manner in which and the terms upon which the testimony is to be taken.

(2) In a guardianship or protective proceeding, a court in this state may permit a witness located in another state to be deposed or to testify by telephone or audiovisual or other electronic means. A court of this state shall cooperate with the court of the other state in designating an appropriate location for the deposition or testimony.

(3) Documentary evidence transmitted from another state to a court of this state by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the best evidence rule.

Source:Laws 2011, LB157, § 10.

30-3907. Definitions; significant connection factors.

(1) For purposes of sections 30-3907 to 30-3915:

(a) Emergency means a circumstance that likely will result in substantial harm to a respondent's health, safety, or welfare, and for which the appointment of a guardian is necessary because no other person has authority and is willing to act on the respondent's behalf;

(b) Home state means the state in which the respondent was physically present, including any period of temporary absence, for at least six consecutive months immediately before the filing of a petition for a protective order or the appointment of a guardian or, if none, the state in which the respondent was physically present, including any period of temporary absence, for at least six consecutive months ending within the six months prior to the filing of the petition; and

(c) Significant-connection state means a state, other than the home state, with which a respondent has a significant connection other than mere physical presence and in which substantial evidence concerning the respondent is available.

(2) In determining under section 30-3909 and subsection (5) of section 30-3916 whether a respondent has a significant connection with a particular state, the court shall consider:

(a) The location of the respondent's family and other persons required to be notified of the guardianship or protective proceeding;

(b) The length of time the respondent at any time was physically present in the state and the duration of any absence;

(d) The extent to which the respondent has ties to the state such as voting registration, state or local tax return filing, vehicle registration, driver's license, social relationship, and receipt of services.

Source:Laws 2011, LB157, § 11.

30-3908. Exclusive basis.

Sections 30-3907 to 30-3915 provide the exclusive jurisdictional basis for a court of this state to appoint a guardian or issue a protective order for an adult.

Source:Laws 2011, LB157, § 12.

30-3909. Jurisdiction.

A court of this state has jurisdiction to appoint a guardian or issue a protective order for a respondent if:

(1) This state is the respondent's home state;

(2) On the date the petition is filed, this state is a significant-connection state and:

(a) The respondent does not have a home state or a court of the respondent's home state has declined to exercise jurisdiction because this state is a more appropriate forum; or

(b) The respondent has a home state, a petition for an appointment or order is not pending in a court of that state or another significant-connection state, and, before the court makes the appointment or issues the order:

(i) A petition for an appointment or order is not filed in the respondent's home state;

(ii) An objection to the court's jurisdiction is not filed by a person required to be notified of the proceeding; and

(iii) The court in this state concludes that it is an appropriate forum under the factors set forth in section 30-3912;

(3) This state does not have jurisdiction under either subdivision (1) or (2) of this section, the respondent's home state and all significant-connection states have declined to exercise jurisdiction because this state is the more appropriate forum, and jurisdiction in this state is consistent with the constitutions of this state and the United States; or

(4) The requirements for special jurisdiction under section 30-3910 are met.

Source:Laws 2011, LB157, § 13.

30-3910. Special jurisdiction.

(1) A court of this state lacking jurisdiction under section 30-3909 has special jurisdiction to do any of the following:

(a) Appoint a guardian in an emergency for a term not exceeding ninety days for a respondent who is physically present in this state;

(b) Issue a protective order with respect to real or tangible personal property located in this state; or

(c) Appoint a guardian or conservator for an incapacitated or protected person for whom a provisional order to transfer the proceeding from another state has been issued under procedures similar to section 30-3916.

(2) If a petition for the appointment of a guardian in an emergency is brought in this state and this state was not the respondent's home state on the date the petition was filed, the court shall dismiss the proceeding at the request of the court of the home state, if any, whether dismissal is requested before or after the emergency appointment.

Source:Laws 2011, LB157, § 14.

30-3911. Exclusive and continuing jurisdiction.

Except as otherwise provided in section 30-3910, a court that has appointed a guardian or issued a protective order consistent with the Nebraska Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act has exclusive and continuing jurisdiction over the proceeding until it is terminated by the court or the appointment or order expires by its own terms.

Source:Laws 2011, LB157, § 15.

30-3912. Appropriate forum.

(1) A court of this state having jurisdiction under section 30-3909 to appoint a guardian or issue a protective order may decline to exercise its jurisdiction if it determines at any time that a court of another state is a more appropriate forum.

(2) If a court of this state declines to exercise its jurisdiction under subsection (1) of this section, it shall either dismiss or stay the proceeding. The court may impose any condition the court considers just and proper, including the condition that a petition for the appointment of a guardian or issuance of a protective order be filed promptly in another state.

(3) In determining whether it is an appropriate forum, the court shall consider all relevant factors, including:

(a) Any expressed preference of the respondent;

(b) Whether abuse, neglect, or exploitation of the respondent has occurred or is likely to occur and which state could best protect the respondent from the abuse, neglect, or exploitation;

(d) The distance of the respondent from the court in each state;

(e) The financial circumstances of the respondent's estate;

(f) The nature and location of the evidence;

(g) The ability of the court in each state to decide the issue expeditiously and the procedures necessary to present evidence;

(h) The familiarity of the court of each state with the facts and issues in the proceeding; and

(i) If an appointment were made, the court's ability to monitor the conduct of the guardian or conservator.

Source:Laws 2011, LB157, § 16.

30-3913. Jurisdiction declined by reason of conduct.

(1) If at any time a court of this state determines that it acquired jurisdiction to appoint a guardian or issue a protective order because of unjustifiable conduct, the court may:

(a) Decline to exercise jurisdiction;

(b) Exercise jurisdiction for the limited purpose of fashioning an appropriate remedy to ensure the health, safety, and welfare of the respondent or the protection of the respondent's property or prevent a repetition of the unjustifiable conduct, including staying the proceeding until a petition for the appointment of a guardian or issuance of a protective order is filed in a court of another state having jurisdiction; or

(i) The extent to which the respondent and all persons required to be notified of the proceedings have acquiesced in the exercise of the court's jurisdiction;

(ii) Whether it is a more appropriate forum than the court of any other state under the factors set forth in subsection (3) of section 30-3912; and

(iii) Whether the court of any other state would have jurisdiction under factual circumstances in substantial conformity with the jurisdictional standards of section 30-3909.

(2) If a court of this state determines that it acquired jurisdiction to appoint a guardian or issued a protective order because a party seeking to invoke its jurisdiction engaged in unjustifiable conduct, it may assess against that party necessary and reasonable expenses, including attorney's fees, investigative fees, court costs, communication expenses, witness fees and expenses, and travel expenses. The court may not assess fees, costs, or expenses of any kind against this state or a governmental subdivision, agency, or instrumentality of this state unless authorized by law other than the Nebraska Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act.

Source:Laws 2011, LB157, § 17.

30-3914. Notice of proceeding.

If a petition for the appointment of a guardian or issuance of a protective order is brought in this state and this state was not the respondent's home state on the date the petition was filed, in addition to complying with the notice requirements of this state, notice of the petition must be given to those persons who would be entitled to notice of the petition if a proceeding were brought in the respondent's home state. The notice must be given in the same manner as notice is required to be given in this state.

Source:Laws 2011, LB157, § 18.

30-3915. Proceedings in more than one state.

Except for a petition for the appointment of a guardian in an emergency or issuance of a protective order limited to property located in this state under subdivision (1)(a) or (b) of section 30-3910, if a petition for the appointment of a guardian or issuance of a protective order is filed in this state and in another state and neither petition has been dismissed or withdrawn, the following rules apply:

(1) If the court in this state has jurisdiction under section 30-3909, it may proceed with the case unless a court in another state acquires jurisdiction under provisions similar to section 30-3909 before the appointment or issuance of the order; and

(2) If the court in this state does not have jurisdiction under section 30-3909, whether at the time the petition is filed or at any time before the appointment or issuance of the order, the court shall stay the proceeding and communicate with the court in the other state. If the court in the other state has jurisdiction, the court in this state shall dismiss the petition unless the court in the other state determines that the court in this state is a more appropriate forum.

Source:Laws 2011, LB157, § 19.

30-3916. Transfer of guardianship or conservatorship to another state.

(1) A guardian or conservator appointed in this state may petition the court to transfer the guardianship or conservatorship to another state.

(2) Notice of a petition under subsection (1) of this section must be given to the persons that would be entitled to notice of a petition in this state for the appointment of a guardian or conservator.

(3) On the court's own motion or on request of the guardian or conservator, the incapacitated or protected person, or other person required to be notified of the petition, the court shall hold a hearing on a petition filed pursuant to subsection (1) of this section.

(4) The court shall issue an order provisionally granting a petition to transfer a guardianship and shall direct the guardian to petition for guardianship in the other state if the court is satisfied that the guardianship will be accepted by the court in the other state and the court finds that:

(a) The incapacitated person is physically present in or is reasonably expected to move permanently to the other state;

(b) An objection to the transfer has not been made or, if an objection has been made, the objector has not established that the transfer would be contrary to the interests of the incapacitated person; and

(5) The court shall issue a provisional order granting a petition to transfer a conservatorship and shall direct the conservator to petition for conservatorship in the other state if the court is satisfied that the conservatorship will be accepted by the court of the other state and the court finds that:

(a) The protected person is physically present in or is reasonably expected to move permanently to the other state, or the protected person has a significant connection to the other state considering the factors in subsection (2) of section 30-3907;

(b) An objection to the transfer has not been made or, if an objection has been made, the objector has not established that the transfer would be contrary to the interests of the protected person; and

(6) The court shall issue a final order confirming the transfer and terminating the guardianship or conservatorship upon its receipt of:

(a) A provisional order accepting the proceeding from the court to which the proceeding is to be transferred which is issued under provisions similar to section 30-3917; and

(b) The documents required to terminate a guardianship or conservatorship in this state.

Source:Laws 2011, LB157, § 20.

30-3917. Accepting guardianship or conservatorship transferred from another state.

(1) To confirm transfer of a guardianship or conservatorship transferred to this state under provisions similar to section 30-3916, the guardian or conservator must petition the court in this state to accept the guardianship or conservatorship. The petition must include a certified copy of the other state's provisional order of transfer.

(2) Notice of a petition under subsection (1) of this section must be given to those persons that would be entitled to notice if the petition were a petition for the appointment of a guardian or issuance of a protective order in both the transferring state and this state. The notice must be given in the same manner as notice is required to be given in this state.

(3) On the court's own motion or on request of the guardian or conservator, the incapacitated or protected person, or other person required to be notified of the proceeding, the court shall hold a hearing on a petition filed pursuant to subsection (1) of this section.

(4) The court shall issue an order provisionally granting a petition filed under subsection (1) of this section unless:

(a) An objection is made and the objector establishes that transfer of the proceeding would be contrary to the interests of the incapacitated or protected person; or

(b) The guardian or conservator is ineligible for appointment in this state.

(5) The court shall issue a final order accepting the proceeding and appointing the guardian or conservator as guardian or conservator in this state upon its receipt from the court from which the proceeding is being transferred of a final order issued under provisions similar to section 30-3916 transferring the proceeding to this state.

(6) Not later than ninety days after issuance of a final order accepting transfer of a guardianship or conservatorship, the court shall determine whether the guardianship or conservatorship needs to be modified to conform to the law of this state.

(7) In granting a petition under this section, the court shall recognize a guardianship or conservatorship order from the other state, including the determination of the incapacitated or protected person's incapacity and the appointment of the guardian or conservator.

(8) The denial by a court of this state of a petition to accept a guardianship or conservatorship transferred from another state does not affect the ability of the guardian or conservator to seek appointment as guardian or conservator in this state under the Nebraska Probate Code if the court has jurisdiction to make an appointment other than by reason of the provisional order of transfer.

Source:Laws 2011, LB157, § 21.

30-3918. Registration of guardianship orders; filing required.

If a guardian has been appointed in another state and a petition for the appointment of a guardian is not pending in this state, the guardian appointed in the other state, after giving notice to the appointing court of an intent to register, may register the guardianship order in this state by filing as a foreign judgment in a court, in any appropriate county of this state, certified copies of the order and letters of office. If the incapacitated person does not have a conservator and has real property or an interest in real property in Nebraska, the guardian shall file in every county where such property is located as required by section 25-2708.

Source:Laws 2011, LB157, § 22.

30-3919. Registration of protective orders.

If a conservator has been appointed in another state and a petition for a protective order is not pending in this state, the conservator appointed in the other state, after giving notice to the appointing court of an intent to register, may register the protective order in this state by filing as a foreign judgment in a court of this state, in every county in which property belonging to the protected person is located as required by section 25-2708, certified copies of the order and letters of office and of any bond.

Source:Laws 2011, LB157, § 23.

30-3920. Effect of registration.

(1) Upon registration of a guardianship or protective order from another state, the guardian or conservator may exercise in this state all powers authorized in the order of appointment except as prohibited under the laws of this state, including maintaining actions and proceedings in this state and, if the guardian or conservator is not a resident of this state, subject to any conditions imposed upon nonresident parties.

(2) A court of this state may grant any relief available under the Nebraska Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act and other law of this state to enforce a registered order.

Source:Laws 2011, LB157, § 24.

30-3921. Uniformity of application and construction.

In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

Source:Laws 2011, LB157, § 25.

30-3922. Relation to Electronic Signatures in Global and National Commerce Act.

The Nebraska Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001, as the act existed on January 1, 2011, but does not modify, limit, or supersede section 101(c) of the act, 15 U.S.C. 7001(c), or authorize electronic delivery of any of the notices described in section 103(b) of the act, 15 U.S.C. 7003(b).

Source:Laws 2011, LB157, § 26.

30-3923. Transitional provision.

(1) The Nebraska Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act applies to guardianship and protective proceedings begun on or after January 1, 2012.

(2) Sections 30-3901 to 30-3906 and 30-3916 to 30-3923 apply to proceedings begun before January 1, 2012, regardless of whether a guardianship or protective order has been issued.

Source:Laws 2011, LB157, § 27.

30-4001. Act, how cited.

Sections 30-4001 to 30-4045 may be cited as the Nebraska Uniform Power of Attorney Act.

Source:Laws 2012, LB1113, § 1.

30-4002. Definitions.

For purposes of the Nebraska Uniform Power of Attorney Act:

(1) Agent means a person granted authority to act for a principal under a power of attorney, whether denominated an agent, attorney in fact, or otherwise. The term includes an original agent, coagent, successor agent, and a person to which an agent's authority is delegated;

(2) Business day means any day other than a Saturday, Sunday, or state or nationally observed legal holiday;

(3) Durable, with respect to a power of attorney, means not terminated by the principal's incapacity;

(4) Electronic means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities;

(5) Good faith means honesty in fact;

(6) Incapacity means inability of an individual to manage property or property affairs effectively because the individual:

(a) Has an impairment in the ability to receive and evaluate information or make or communicate responsible decisions even with the use of technological assistance for reasons such as mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or lack of discretion in managing benefits received from public funds; or

(b) Is:

(i) Missing;

(ii) Detained, including incarcerated in a penal system; or

(iii) Outside the United States and unable to return;

(7) Person means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity;

(8) Power of attorney means a writing or other record that grants authority to an agent to act in the place of the principal, whether or not the term power of attorney is used;

(9) Presently exercisable general power of appointment, with respect to property or a property interest subject to a power of appointment, means power exercisable at the time in question to vest absolute ownership in the principal individually, the principal's estate, the principal's creditors, or the creditors of the principal's estate. The term includes a power of appointment not exercisable until the occurrence of a specified event, the satisfaction of an ascertainable standard, or the passage of a specified period only after the occurrence of the specified event, the satisfaction of the ascertainable standard, or the passage of the specified period. The term does not include a power exercisable in a fiduciary capacity or only by will;

(10) Principal means an individual, who is eighteen years of age or older or is not a minor, who grants authority to an agent in a power of attorney;

(11) Property means anything that may be the subject of ownership, whether real or personal, legal or equitable, or any interest or right therein;

(12) Record means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;

(13) Sign means, with present intent to authenticate or adopt a record:

(a) To execute or adopt a tangible symbol; or

(b) To attach to or logically associate with the record an electronic sound, symbol, or process;

(14) State means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States; and

(15) Stocks and bonds means stocks, bonds, mutual funds, and all other types of securities and financial instruments, whether held directly, indirectly, or in any other manner. The term does not include commodity futures contracts and call or put options on stocks or stock indexes.

Source:Laws 2012, LB1113, § 2; Laws 2024, LB1195, § 9.
Effective Date: July 19, 2024

30-4003. Applicability.

The Nebraska Uniform Power of Attorney Act applies to all powers of attorney except:

(1) A power to the extent it is coupled with an interest in the subject of the power, including a power given to or for the benefit of a creditor in connection with a credit transaction;

(2) A power to make health care decisions;

(3) A proxy or other delegation to exercise voting rights or management rights with respect to an entity; and

(4) A power created on a form prescribed by a government or governmental subdivision, agency, or instrumentality for a governmental purpose.

Source:Laws 2012, LB1113, § 3.

30-4004. Power of attorney is durable.

A power of attorney created after January 1, 2013, under the Nebraska Uniform Power of Attorney Act is durable unless it expressly provides that it is terminated by the incapacity of the principal.

Source:Laws 2012, LB1113, § 4.

30-4005. Execution of power of attorney.

A power of attorney must be signed by the principal or marked by the principal in accordance with section 64-105.02 or signed in the principal's conscious presence by another individual directed by the principal to sign the principal's name on the power of attorney. A signature or mark on a power of attorney is presumed to be genuine if the principal acknowledges the signature before a notary public or other individual authorized by law to take acknowledgments. A power of attorney under the Nebraska Uniform Power of Attorney Act is not valid unless it is acknowledged before a notary public or other individual authorized by law to take acknowledgments.

Source:Laws 2012, LB1113, § 5.

30-4006. Validity of power of attorney.

(1) A power of attorney executed in this state on or after January 1, 2013, is valid if its execution complies with section 30-4005. The county court and the district court of the principal's domicile shall have concurrent jurisdiction to determine the validity and enforceability of a power of attorney.

(2) A power of attorney executed in this state before January 1, 2013, is valid if its execution complied with the law of this state as it existed at the time of execution.

(3) A power of attorney executed other than in this state is valid in this state if, when the power of attorney was executed, the execution complied with:

(a) The law of the jurisdiction that determines the meaning and effect of the power of attorney pursuant to section 30-4007; or

(b) The requirements for a military power of attorney pursuant to 10 U.S.C. 1044b, as amended.

(4) Except as otherwise provided by statute other than the Nebraska Uniform Power of Attorney Act, a photocopy or electronically transmitted copy of an original power of attorney has the same effect as the original.

Source:Laws 2012, LB1113, § 6.

30-4007. Meaning and effect of power of attorney.

The meaning and effect of a power of attorney is determined by the law of the jurisdiction indicated in the power of attorney and, in the absence of an indication of jurisdiction, by the law of the jurisdiction in which the power of attorney was executed.

Source:Laws 2012, LB1113, § 7.

30-4008. Nomination of conservator or guardian; relation of agent to court-appointed fiduciary.

(1) In a power of attorney, a principal may nominate a conservator or guardian of the principal's estate or guardian of the principal's person for consideration by the court if protective proceedings for the principal's estate or person are begun after the principal executes the power of attorney.

(2) If, following execution of a durable power of attorney, a court of the principal's domicile appoints a conservator, guardian of the estate, or other fiduciary charged with the management of all the principal's property or all of his or her property except specified exclusions, the agent shall be accountable to the fiduciary as well as to the principal. The fiduciary shall have the same power to revoke or amend the power of attorney that the principal would have had if he or she were not disabled or incapacitated.

Source:Laws 2012, LB1113, § 8.

30-4009. When power of attorney effective.

(1) A power of attorney is effective when executed unless the principal provides in the power of attorney that it becomes effective at a future date or upon the occurrence of a future event or contingency.

(2) If a power of attorney becomes effective upon the occurrence of a future event or contingency, the principal, in the power of attorney, may authorize one or more persons to determine in a writing or other record that the event or contingency has occurred.

(3) If a power of attorney becomes effective upon the principal's incapacity and the principal has not authorized a person to determine whether the principal is incapacitated, or the person authorized is unable or unwilling to make the determination, the power of attorney becomes effective upon a determination in a writing or other record by:

(a) A licensed physician or licensed psychologist that the principal is incapacitated; or

(b) The court or an appropriate governmental official that the principal is incapacitated.

(4) A person authorized by the principal in the power of attorney to determine that the principal is incapacitated may act as the principal's personal representative pursuant to the Health Insurance Portability and Accountability Act, sections 1171 to 1179 of the Social Security Act, 42 U.S.C. 1320d, as amended, and applicable regulations, to obtain access to the principal's health care information and communicate with the principal's health care provider.

Source:Laws 2012, LB1113, § 9.

30-4010. Termination of power of attorney or agent's authority.

(1) A power of attorney terminates when:

(a) The principal dies;

(b) The principal becomes incapacitated, if the power of attorney is not durable;

(d) The power of attorney provides that it terminates;

(e) The purpose of the power of attorney is accomplished; or

(f) The principal revokes the agent's authority or the agent dies, becomes incapacitated, or resigns, and the power of attorney does not provide for another agent to act under the power of attorney.

(2) An agent's authority terminates when:

(a) The principal revokes the authority;

(b) The agent dies, becomes incapacitated, or resigns;

(c) An action is filed for the dissolution or annulment of the agent's marriage to the principal or their legal separation, unless the power of attorney otherwise provides; or

(d) The power of attorney terminates.

(3) Unless the power of attorney otherwise provides, an agent's authority is exercisable until the authority terminates under subsection (2) of this section, notwithstanding a lapse of time since the execution of the power of attorney.

(4) Termination of an agent's authority or of a power of attorney is not effective as to the agent or another person that, without actual knowledge of the termination, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, binds the principal and the principal's successors in interest.

(5) Incapacity of the principal of a power of attorney that is not durable does not revoke or terminate the power of attorney as to an agent or other person that, without actual knowledge of the incapacity, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, binds the principal and the principal's successors in interest.

(6) The execution of a power of attorney does not revoke a power of attorney previously executed by the principal unless the subsequent power of attorney provides that the previous power of attorney is revoked or that all other powers of attorney are revoked.

Source:Laws 2012, LB1113, § 10.

30-4011. Coagents and successor agents.

(1) A principal may designate two or more persons to act as coagents. Unless the power of attorney otherwise provides, each coagent may exercise its authority independently.

(2) A principal may designate one or more successor agents to act if an agent resigns, dies, becomes incapacitated, is not qualified to serve, or declines to serve. A principal may grant authority to designate one or more successor agents to an agent or other person designated by name, office, or function. Unless the power of attorney otherwise provides, a successor agent:

(a) Has the same authority as that granted to the original agent; and

(b) May not act until all predecessor agents have resigned, died, become incapacitated, are no longer qualified to serve, or have declined to serve.

(3) Except as otherwise provided in the power of attorney and subsection (4) of this section, an agent that does not participate in or conceal a breach of fiduciary duty committed by another agent, including a predecessor agent, is not liable for the actions of the other agent.

(4) An agent that has actual knowledge of a breach or imminent breach of fiduciary duty by another agent shall notify the principal and, if the principal is incapacitated, take any action reasonably appropriate in the circumstances to safeguard the principal's best interest. An agent that fails to notify the principal or take action as required by this subsection is liable for the reasonably foreseeable damages that could have been avoided if the agent had notified the principal or taken such action.

Source:Laws 2012, LB1113, § 11.

30-4012. Reimbursement and compensation of agent.

Unless the power of attorney otherwise provides, an agent is entitled to reimbursement of expenses reasonably incurred on behalf of the principal and to compensation that is reasonable under the circumstances.

Source:Laws 2012, LB1113, § 12.

30-4013. Agent's acceptance.

Except as otherwise provided in the power of attorney, a person accepts appointment as an agent under a power of attorney by exercising authority or performing duties as an agent or by any other assertion or conduct indicating acceptance.

Source:Laws 2012, LB1113, § 13.

30-4014. Agent's duties.

(1) Notwithstanding provisions in the power of attorney, an agent that has accepted appointment shall:

(a) Act in accordance with the principal's reasonable expectations to the extent known by the agent and, otherwise, in the principal's best interest;

(b) Act in good faith; and

(c) Act only within the scope of authority granted, or reasonably implied by, the grant of authority in the power of attorney.

(2) Except as otherwise provided in the power of attorney, an agent that has accepted appointment shall:

(a) Act loyally for the principal's benefit;

(b) Act so as not to create a conflict of interest that impairs the agent's ability to act impartially in the principal's best interest;

(d) Keep a record of all receipts, disbursements, and transactions made on behalf of the principal;

(e) Cooperate with a person that has authority to make health care decisions for the principal to carry out the principal's reasonable expectations to the extent known by the agent and, otherwise, act in the principal's best interest; and

(f) Attempt to preserve the principal's estate plan, to the extent known by the agent, if preserving the plan is consistent with the principal's best interest based on all relevant factors, including:

(i) The value and nature of the principal's property;

(ii) The principal's foreseeable obligations and need for maintenance;

(iii) Minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes; and

(iv) Eligibility for a benefit, a program, or assistance under a statute or regulation.

(3) An agent that acts in good faith is not liable to any beneficiary of the principal's estate plan for failure to preserve the plan.

(4) An agent that acts with care, competence, and diligence for the best interest of the principal is not liable solely because the agent also benefits from the act or has an individual or conflicting interest in relation to the property or affairs of the principal.

(5) If an agent is selected by the principal because of special skills or expertise possessed by the agent or in reliance on the agent's representation that the agent has special skills or expertise, the special skills or expertise must be considered in determining whether the agent has acted with care, competence, and diligence under the circumstances.

(6) Absent a breach of duty to the principal, an agent is not liable if the value of the principal's property declines.

(7) An agent that exercises authority to delegate to another person the authority granted by the principal or that engages another person on behalf of the principal is not liable for an act, error of judgment, or default of that person if the agent exercises care, competence, and diligence in selecting and monitoring the person.

(8) Except as otherwise provided in the power of attorney, an agent is not required to disclose receipts, disbursements, or transactions conducted on behalf of the principal unless ordered by a court or requested by the principal, a guardian, a conservator, another fiduciary or agent acting for the principal, a governmental agency having authority to protect the welfare of the principal, or, upon the death of the principal, by the personal representative or successor in interest of the principal's estate. If so requested, within thirty days the agent shall comply with the request or provide a writing or other record substantiating why additional time is needed and shall comply with the request within an additional thirty days.

Source:Laws 2012, LB1113, § 14.

Annotations

An agent under a power of attorney is in a fiduciary relationship with his or her principal. In re Estate of Adelung, 306 Neb. 646, 947 N.W.2d 269 (2020).

30-4015. Exoneration of agent.

(1) A provision in a power of attorney relieving an agent of liability for breach of duty is binding on the principal and the principal's successors in interest except to the extent the provision:

(a) Relieves the agent of liability for breach of duty committed dishonestly, with an improper motive, or with reckless indifference to the purposes of the power of attorney or the best interest of the principal; or

(b) Was inserted as a result of an abuse of a confidential or fiduciary relationship with the principal.

(2) An exculpatory term drafted or caused to be drafted by an agent is invalid as an abuse of fiduciary or confidential relationship unless the agent proves that the exculpatory term is fair under the circumstances and that its existence and contents were adequately communicated to the principal.

Source:Laws 2012, LB1113, § 15.

Annotations

An exoneration clause in a power of attorney will not relieve an agent of liability where the agent's attorney drafted the document and the agent did not prove that the clause was fair and adequately communicated to the principal. In re Estate of Adelung, 306 Neb. 646, 947 N.W.2d 269 (2020).

30-4016. Judicial relief.

(1) The following persons may petition a court to construe a power of attorney or review the agent's conduct and grant appropriate relief:

(a) The principal or the agent;

(b) A guardian, conservator, or other fiduciary acting for the principal;

(d) The principal's spouse, parent, or issue;

(e) An individual who would qualify as a presumptive heir of the principal or would otherwise qualify as a devisee under a will that remains unrevoked;

(f) A person named as a beneficiary to receive any property, benefit, or contractual right on the principal's death or as a beneficiary of a trust created by or for the principal that has a financial interest in the principal's estate;

(g) A governmental agency having regulatory authority to protect the welfare of the principal;

(h) The principal's caregiver or another person that demonstrates sufficient interest in the principal's welfare; and

(i) A person asked to accept the power of attorney.

(2) Upon motion by the principal, the court shall dismiss a petition filed under this section, unless the court finds that the principal lacks capacity to revoke the agent's authority or the power of attorney.

Source:Laws 2012, LB1113, § 16.

Annotations

Subsection (1)(e) of this section pertains to a "presumptive heir," which necessarily relates to a decedent's blood relatives. In re Trust of Cook, 28 Neb. App. 624, 947 N.W.2d 870 (2020).

30-4017. Agent's liability.

An agent that violates the Nebraska Uniform Power of Attorney Act is liable to the principal or the principal's successors in interest for the amount required to:

(1) Restore the value of the principal's property to what it would have been had the violation not occurred; and

(2) In a judicial proceeding involving the administration of a power of attorney, the court, as justice may require, may award costs and expenses, including reasonable attorney's fees to any party, to be paid by another party.

Source:Laws 2012, LB1113, § 17.

30-4018. Agent's resignation; notice.

Unless the power of attorney provides a different method for an agent's resignation, an agent may resign by giving notice to the principal and, if the principal is incapacitated:

(1) To the conservator or guardian, if one has been appointed for the principal, and a coagent or successor agent; or

(2) If there is no person described in subdivision (1) of this section, to:

(a) The principal's caregiver;

(b) Another person reasonably believed by the agent to have sufficient interest in the principal's welfare; or

Source:Laws 2012, LB1113, § 18.

30-4019. Acceptance of and reliance upon acknowledged power of attorney.

(1) For purposes of this section and section 30-4020, acknowledged means purportedly verified before a notary public or other individual authorized to take acknowledgments.

(2) A person that in good faith accepts an acknowledged power of attorney without actual knowledge that the signature is not genuine may rely upon the presumption under section 30-4005 that the signature is genuine.

(3) A person that in good faith accepts an acknowledged power of attorney without actual knowledge that the power of attorney is void, invalid, or terminated, that the purported agent's authority is void, invalid, or terminated, or that the agent is exceeding or improperly exercising the agent's authority may rely upon the power of attorney as if the power of attorney were genuine, valid, and still in effect, the agent's authority were genuine, valid, and still in effect, and the agent had not exceeded and had properly exercised the authority.

(4) A person that is asked to accept an acknowledged power of attorney may request, and rely upon, without further investigation:

(a) An agent's certification under penalty of perjury of any factual matter concerning the principal, agent, or power of attorney;

(b) An English translation of the power of attorney if the power of attorney contains, in whole or in part, language other than English; and

(c) An opinion of counsel as to any matter of law concerning the power of attorney if the person making the request provides in a writing or other record the reason for the request.

(5) An English translation or an opinion of counsel requested under this section must be provided at the principal's expense unless the request is made more than seven business days after the power of attorney is presented for acceptance.

(6) For purposes of this section and section 30-4020, a person that conducts activities through employees is without actual knowledge of a fact relating to a power of attorney, a principal, or an agent if the employee conducting the transaction involving the power of attorney is without actual knowledge of the fact.

Source:Laws 2012, LB1113, § 19.

30-4020. Liability for refusal to accept acknowledged power of attorney.

(1) Except as otherwise provided in subsection (2) of this section:

(a) A person shall either accept an acknowledged power of attorney or request a certification, a translation, or an opinion of counsel under subsection (4) of section 30-4019 no later than seven business days after presentation of the power of attorney for acceptance;

(b) If a person requests a certification, a translation, or an opinion of counsel under subsection (4) of section 30-4019, the person shall accept the power of attorney no later than five business days after receipt of the certification, translation, or opinion of counsel; and

(c) A person may not require an additional or different form of power of attorney for authority granted in the power of attorney presented, except as provided in section 30-4031.

(2) A person is not required to accept an acknowledged power of attorney if:

(a) The person is not otherwise required to engage in a transaction with the principal in the same circumstances;

(b) Engaging in a transaction with the agent or the principal in the same circumstances would be inconsistent with state or federal law;

(c) The person has actual knowledge of the termination of the agent's authority or of the power of attorney before exercise of the power;

(d) A request for a certification, a translation, or an opinion of counsel under subsection (4) of section 30-4019 is refused;

(e) The person in good faith believes that the power is not valid or that the agent does not have the authority to perform the act requested, whether or not a certification, a translation, or an opinion of counsel under subsection (4) of section 30-4019 has been requested or provided;

(f) The person makes, or has actual knowledge that another person has made, a report to the local adult protective services office stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation, or abandonment by the agent or a person acting for or with the agent;

(g) The person brought, or has actual knowledge that another person has brought, a judicial proceeding for construction of a power of attorney or review of the agent's conduct; or

(h) The power of attorney becomes effective upon the occurrence of an event or contingency, and neither a certification nor evidence of the occurrence of the event or contingency is presented to the person being asked to accept the power of attorney.

(3) A person may not refuse to accept an acknowledged power of attorney if any of the following applies:

(a) The person's reason for refusal is based exclusively upon the date the power of attorney was executed; or

(b) The person's refusal is based exclusively on a mandate that an additional or different power of attorney form must be used.

(4)(a) A person may bring an action or proceeding to mandate the acceptance of an acknowledged power of attorney.

(b) In any action or proceeding to mandate the acceptance of an acknowledged power of attorney or confirm the validity of an acknowledged power of attorney, a person found liable for refusing to accept such power of attorney is subject to:

(i) Liability to the principal and to the principal's heirs, assigns, and personal representative of the estate of the principal in the same manner as the person would be liable had the person refused to accept the authority of the principal to act on the principal's own behalf;

(ii) A court order mandating acceptance of the power of attorney; and

(iii) Liability for reasonable attorney's fees and costs incurred in such action or proceeding.

(c) In any action or proceeding in which a person's refusal to accept an acknowledged power of attorney in violation of this section prevents an agent from completing a transaction requested by the agent with respect to a security account as defined in section 30-2734, owned by the principal, such person, in addition to being subject to the provisions of subdivision (4)(b) of this section, is subject to:

(i) Economic damages of the principal proximately caused by the person's refusal to accept the acknowledged power of attorney and failure to comply with the instructions of the agent designated in such power of attorney with respect to such security account; and

(ii) Reasonable attorney's fees and costs incurred to seek damages resulting from such person's refusal to accept the acknowledged power of attorney and failure to comply with the instructions of such agent designated in the power of attorney with respect to the security account.

Source:Laws 2012, LB1113, § 20; Laws 2019, LB145, § 1; Laws 2019, LB146, § 1.

30-4021. Principles of law and equity.

Unless displaced by a provision of the Nebraska Uniform Power of Attorney Act, the principles of law and equity supplement the act.

Source:Laws 2012, LB1113, § 21.

30-4022. Laws applicable to financial institutions and entities.

The Nebraska Uniform Power of Attorney Act does not supersede any other law applicable to financial institutions or other entities, and the other law controls if inconsistent with the act.

Source:Laws 2012, LB1113, § 22.

30-4023. Remedies under other law.

The remedies under the Nebraska Uniform Power of Attorney Act are not exclusive and do not abrogate any right or remedy under the law of this state other than the act.

Source:Laws 2012, LB1113, § 23.

30-4024. Authority that requires specific grant; grant of general authority.

(1) An agent under a power of attorney may do the following on behalf of the principal or with the principal's property only if the power of attorney expressly grants the agent the authority and exercise of the authority is not otherwise prohibited by another agreement or instrument to which the authority or property is subject:

(a) Create, amend, revoke, or terminate an inter vivos trust;

(b) Make a gift;

(d) Create or change a beneficiary designation;

(e) Delegate authority granted under the power of attorney;

(f) Waive the principal's right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan;

(g) Exercise fiduciary powers that the principal has authority to delegate; or

(h) Renounce or disclaim property, including the power of appointment.

(2) Notwithstanding a grant of authority to do an act described in subsection (1) of this section, unless the power of attorney otherwise provides, an agent that is not an ancestor, spouse, or issue of the principal, may not exercise authority under a power of attorney to create in the agent, or in an individual to whom the agent owes a legal obligation of support, an interest in the principal's property, whether by gift, right of survivorship, beneficiary designation, disclaimer, or otherwise.

(3) Subject to subsections (1), (2), (4), and (5) of this section, if a power of attorney grants to an agent authority to do all acts that a principal could do, the agent has the general authority described in sections 30-4027 to 30-4039.

(4) Unless the power of attorney otherwise provides, a grant of authority to make a gift is subject to section 30-4040.

(5) Subject to subsections (1), (2), and (4) of this section, if the subjects over which authority is granted in a power of attorney are similar or overlap, the broadest authority controls.

(6) Authority granted in a power of attorney is exercisable with respect to property that the principal has when the power of attorney is executed or acquired later, whether or not the property is located in this state and whether or not the authority is exercised or the power of attorney is executed in this state.

(7) An act performed by an agent pursuant to a power of attorney has the same effect and inures to the benefit of and binds the principal and the principal's successors in interest as if the principal had performed the act.

Source:Laws 2012, LB1113, § 24.

Annotations

Under subsection (2) of this section, for an agent who is not the ancestor, spouse, or issue of the principal to use the power of attorney to create in himself or herself an interest in the principal's property, the agent must have express authority from the principal in the power of attorney. Cisneros v. Graham, 294 Neb. 83, 881 N.W.2d 878 (2016).

30-4025. Incorporation of authority.

(1) An agent has authority described in sections 30-4024 to 30-4040 if the power of attorney refers to general authority with respect to the descriptive term for the subjects stated in sections 30-4027 to 30-4040 or cites the section in which the authority is described.

(2) A reference in a power of attorney to general authority with respect to the descriptive term for a subject in sections 30-4027 to 30-4040 or a citation to a section within such sections incorporates the entire section described or cited as if it were set out in full in the power of attorney.

(3) A principal may modify authority incorporated by reference.

Source:Laws 2012, LB1113, § 25.

30-4026. Construction of authority generally.

Except as otherwise provided in the power of attorney, by executing a power of attorney that incorporates by reference a subject described in sections 30-4027 to 30-4040 or that grants to an agent authority to do all acts that a principal could do pursuant to subsection (3) of section 30-4024, a principal authorizes the agent, with respect to that subject, to:

(1) Demand, receive, and obtain by litigation or otherwise, money or another thing of value to which the principal is, may become, or claims to be entitled, and conserve, invest, disburse, or use anything so received or obtained for the purposes intended;

(2) Contract in any manner with any person, on terms agreeable to the agent, to accomplish a purpose of a transaction and perform, rescind, cancel, terminate, reform, restate, release, or modify the contract or another contract made by or on behalf of the principal;

(3) Execute, acknowledge, seal, deliver, file, or record any instrument or communication the agent considers desirable to accomplish a purpose of a transaction, including creating at any time a schedule listing some or all of the principal's property and attaching it to the power of attorney;

(4) Initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to a claim existing in favor of or against the principal or intervene in litigation relating to the claim;

(5) Seek on the principal's behalf the assistance of a court or other governmental agency to carry out an act authorized in the power of attorney;

(6) Engage, compensate, and discharge an attorney, accountant, discretionary investment manager, expert witness, or other advisor;

(7) Prepare, execute, and file a record, report, or other document to safeguard or promote the principal's interest under a statute or regulation;

(8) Communicate with any representative or employee of a government or governmental subdivision, agency, or instrumentality, on behalf of the principal;

(9) Access communications intended for, and communicate on behalf of the principal, whether by mail, electronic transmission, telephone, or other means; and

(10) Do any lawful act with respect to the subject and all property related to the subject.

Source:Laws 2012, LB1113, § 26.

30-4027. Real property.

Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to real property authorizes the agent to:

(1) Demand, buy, lease, receive, accept as a gift or as security for an extension of credit, or otherwise acquire or reject an interest in real property or a right incident to real property;

(2) Sell; exchange; convey with or without covenants, representations, or warranties; quitclaim; release; surrender; retain title for security; encumber; partition; consent to partitioning; subject to an easement or covenant; subdivide; apply for zoning or other governmental permits; plat or consent to platting; develop; grant an option concerning; lease; sublease; contribute to an entity in exchange for an interest in that entity; or otherwise grant or dispose of an interest in real property or a right incident to real property;

(3) Pledge or mortgage an interest in real property or right incident to real property as security to borrow money or pay, renew, or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;

(4) Release, assign, satisfy, or enforce by litigation or otherwise a mortgage, deed of trust, conditional sales contract, encumbrance, lien, or other claim to real property which exists or is asserted;

(5) Manage or conserve an interest in real property or a right incident to real property owned or claimed to be owned by the principal, including:

(a) Insuring against liability or casualty or other loss;

(b) Obtaining or regaining possession of or protecting the interest or right by litigation or otherwise;

(c) Paying, assessing, compromising, or contesting taxes or assessments or applying for and receiving refunds in connection with them; and

(d) Purchasing supplies, hiring assistance or labor, and making repairs or alterations to the real property;

(6) Use, develop, alter, replace, remove, erect, or install structures or other improvements upon real property in or incident to which the principal has, or claims to have, an interest or right;

(7) Participate in a reorganization with respect to real property or an entity that owns an interest in or right incident to real property and receive, and hold, and act with respect to stocks and bonds or other property received in a plan of reorganization, including:

(a) Selling or otherwise disposing of them;

(b) Exercising or selling an option, right of conversion, or similar right with respect to them; and

(8) Change the form of title of an interest in or right incident to real property; and

(9) Dedicate to public use, with or without consideration, easements or other real property in which the principal has, or claims to have, an interest.

Source:Laws 2012, LB1113, § 27.

30-4028. Tangible personal property.

Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to tangible personal property authorizes the agent to:

(1) Demand, buy, receive, accept as a gift or as security for an extension of credit, or otherwise acquire or reject ownership or possession of tangible personal property or an interest in tangible personal property;

(2) Sell; exchange; convey with or without covenants, representations, or warranties; quitclaim; release; surrender; create a security interest in; grant options concerning; lease; sublease; or, otherwise dispose of tangible personal property or an interest in tangible personal property;

(3) Grant a security interest in tangible personal property or an interest in tangible personal property as security to borrow money or pay, renew, or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;

(4) Release, assign, satisfy, or enforce by litigation or otherwise, a security interest, lien, or other claim on behalf of the principal, with respect to tangible personal property or an interest in tangible personal property;

(5) Manage or conserve tangible personal property or an interest in tangible personal property on behalf of the principal, including:

(a) Insuring against liability or casualty or other loss;

(b) Obtaining or regaining possession of or protecting the property or interest, by litigation or otherwise;

(c) Paying, assessing, compromising, or contesting taxes or assessments or applying for and receiving refunds in connection with taxes or assessments;

(d) Moving the property from place to place;

(e) Storing the property for hire or on a gratuitous bailment; and

(f) Using and making repairs, alterations, or improvements to the property; and

(6) Change the form of title of an interest in tangible personal property.

Source:Laws 2012, LB1113, § 28.

30-4029. Stocks and bonds.

Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to stocks and bonds authorizes the agent to:

(1) Buy, sell, and exchange stocks and bonds;

(2) Establish, continue, modify, or terminate an account with respect to stocks and bonds;

(3) Pledge stocks and bonds as security to borrow, pay, renew, or extend the time of payment of a debt of the principal;

(4) Receive certificates and other evidences of ownership with respect to stocks and bonds; and

(5) Exercise voting rights with respect to stocks and bonds in person or by proxy, enter into voting trusts, and consent to limitations on the right to vote.

Source:Laws 2012, LB1113, § 29.

30-4030. Commodities and options.

Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to commodities and options authorizes the agent to:

(1) Buy, sell, exchange, assign, settle, and exercise commodity futures contracts and call or put options on stocks or stock indexes traded on a regulated option exchange; and

(2) Establish, continue, modify, and terminate option accounts.

Source:Laws 2012, LB1113, § 30.

30-4031. Banks and other financial institutions.

Unless the power of attorney otherwise provides, language in a power of attorney granting authority with respect to banks and other financial institutions authorizes the agent to:

(1) Continue, modify, and terminate an account or other banking arrangement made by or on behalf of the principal;

(2) Establish, modify, and terminate an account or other banking arrangement with a bank, trust company, savings and loan association, credit union, thrift company, brokerage firm, or other financial institution selected by the agent;

(3) Contract for services available from a financial institution, including renting a safe deposit box or space in a vault;

(4) Withdraw, by check, order, electronic funds transfer, or otherwise, money or property of the principal deposited with or left in the custody of a financial institution;

(5) Receive statements of account, vouchers, notices, and similar documents from a financial institution and act with respect to them;

(6) Enter a safe deposit box or vault and withdraw or add to the contents;

(7) Borrow money and pledge as security personal property of the principal necessary to borrow money or pay, renew, or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;

(8) Make, assign, draw, endorse, discount, guarantee, and negotiate promissory notes, checks, drafts, and other negotiable or nonnegotiable paper of the principal or payable to the principal or the principal's order, transfer money, receive the cash or other proceeds of those transactions, and accept a draft drawn by a person upon the principal and pay it when due;

(9) Receive for the principal and act upon a sight draft, warehouse receipt, or other document of title whether tangible or electronic, or other negotiable or nonnegotiable instrument;

(10) Apply for, receive, and use letters of credit, credit and debit cards, electronic transaction authorizations, and traveler's checks from a financial institution and give an indemnity or other agreement in connection with letters of credit;

(11) Consent to an extension of the time of payment with respect to commercial paper or a financial transaction with a financial institution; and

(12) Execute such powers of attorney as may be required and necessary for interacting with a bank, trust company, savings and loan association, credit union, thrift company, brokerage firm, or other financial institution so long as the terms and conditions in the financial institution’s power of attorney are similar to those in the power of attorney granting authority, including the identification of the acting agent and the agent's successors. The execution of a financial institution's power of attorney document does not revoke the power of attorney document granting authority.

Source:Laws 2012, LB1113, § 31; Laws 2019, LB145, § 2.

30-4032. Operation of entity or business.

Subject to the terms of a document or an agreement governing an entity or an entity ownership interest, and unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to operation of an entity or business authorizes the agent to:

(1) Operate, buy, sell, enlarge, reduce, or terminate an ownership interest;

(2) Perform a duty or discharge a liability and exercise in person or by proxy a right, power, privilege, or option that the principal has, may have, or claims to have;

(3) Enforce the terms of an ownership agreement;

(4) Initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to which the principal is a party because of an ownership interest;

(5) Exercise in person or by proxy, or enforce by litigation or otherwise, a right, power, privilege, or option the principal has or claims to have as the holder of stocks and bonds;

(6) Initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to which the principal is a party concerning stocks and bonds;

(7) With respect to an entity or business owned solely by the principal:

(a) Continue, modify, renegotiate, extend, and terminate a contract made by or on behalf of the principal with respect to the entity or business before execution of the power of attorney;

(b) Determine:

(i) The location of its operation;

(ii) The nature and extent of its business;

(iii) The methods of manufacturing, selling, merchandising, financing, accounting, and advertising employed in its operation;

(iv) The amount and types of insurance carried; and

(v) The mode of engaging, compensating, and dealing with its employees and accountants, attorneys, or other advisors;

(c) Change the name or form of organization under which the entity or business is operated and enter into an ownership agreement with other persons to take over all or part of the operation of the entity or business; and

(d) Demand and receive money due or claimed by the principal or on the principal's behalf in the operation of the entity or business and control and disburse the money in the operation of the entity or business;

(8) Put additional capital into an entity or business in which the principal has an interest;

(9) Join in a plan of reorganization, consolidation, conversion, domestication, or merger of the entity or business;

(10) Sell or liquidate all or part of an entity or business;

(11) Establish the value of an entity or business under a buyout agreement to which the principal is a party;

(12) Prepare, sign, file, and deliver reports, compilations of information, returns, or other papers with respect to an entity or business and make related payments; and

(13) Pay, compromise, or contest taxes, assessments, fines, or penalties and perform any other act to protect the principal from illegal or unnecessary taxation, assessments, fines, or penalties, with respect to an entity or business, including attempts to recover, in any manner permitted by law, money paid before or after the execution of the power of attorney.

Source:Laws 2012, LB1113, § 32.

30-4033. Insurance and annuities.

Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to insurance and annuities authorizes the agent to:

(1) Continue, pay the premium or make a contribution on, modify, exchange, rescind, release, or terminate a contract procured by or on behalf of the principal which insures or provides an annuity to either the principal or another person, whether or not the principal is a beneficiary under the contract;

(2) Procure new, different, and additional contracts of insurance and annuities for the principal and the principal's spouse, children, and other dependents, and select the amount, type of insurance or annuity, and mode of payment;

(3) Pay the premium or make a contribution on, modify, exchange, rescind, release, or terminate a contract of insurance or annuity procured by the agent;

(4) Apply for and receive a loan secured by a contract of insurance or annuity;

(5) Surrender and receive the cash surrender value on a contract of insurance or annuity;

(6) Exercise an election;

(7) Exercise investment powers available under a contract of insurance or annuity;

(8) Change the manner of paying premiums on a contract of insurance or annuity;

(9) Change or convert the type of insurance or annuity with respect to which the principal has or claims to have authority described in this section;

(10) Apply for and procure a benefit or assistance under a statute or regulation to guarantee or pay premiums of a contract of insurance on the life of the principal;

(11) Collect, sell, assign, hypothecate, borrow against, or pledge the interest of the principal in a contract of insurance or annuity;

(12) Select the form and timing of the payment of proceeds from a contract of insurance or annuity; and

(13) Pay, from proceeds or otherwise, compromise or contest, and apply for refunds in connection with, a tax or assessment levied by a taxing authority with respect to a contract of insurance or annuity or its proceeds or liability accruing by reason of the tax or assessment.

Source:Laws 2012, LB1113, § 33.

30-4034. Estates, trusts, and other beneficial interests.

(1) For purposes of this section, estate, trust, or other beneficial interest means a trust, probate estate, guardianship, conservatorship, escrow, or custodianship or a fund from which the principal is, may become, or claims to be, entitled to a share or payment.

(2) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to estates, trusts, and other beneficial interests authorizes the agent to:

(a) Accept, receive, receipt for, sell, assign, pledge, or exchange a share in or payment from an estate, trust, or other beneficial interest;

(b) Demand or obtain money or another thing of value to which the principal is, may become, or claims to be, entitled by reason of an estate, trust, or other beneficial interest, by litigation or otherwise;

(c) Exercise for the benefit of the principal a presently exercisable general power of appointment held by the principal;

(d) Initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to ascertain the meaning, validity, or effect of a deed, will, declaration of trust, or other instrument or transaction affecting the interest of the principal;

(e) Initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to remove, substitute, or surcharge a fiduciary;

(f) Conserve, invest, disburse, or use anything received for an authorized purpose; and

(g) Transfer an interest of the principal in real property, stocks and bonds, accounts with financial institutions or securities intermediaries, insurance, annuities, and other property to the trustee of a revocable trust created by the principal as settlor.

Source:Laws 2012, LB1113, § 34.

30-4035. Claims and litigation.

Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to claims and litigation authorizes the agent to:

(1) Assert and maintain before a court or administrative agency a claim, claim for relief, cause of action, counterclaim, offset, recoupment, or defense, including an action to recover property or other thing of value, recover damages sustained by the principal, eliminate or modify tax liability, or seek an injunction, specific performance, or other relief;

(2) Bring an action to determine adverse claims or intervene or otherwise participate in litigation;

(3) Seek an attachment, garnishment, order of arrest, or other preliminary, provisional, or intermediate relief and use an available procedure to effect or satisfy a judgment, order, or decree;

(4) Make or accept a tender, offer of judgment, or admission of facts, submit a controversy on an agreed statement of facts, consent to examination, and bind the principal in litigation;

(5) Submit to alternative dispute resolution, settle, and propose or accept a compromise;

(6) Waive the issuance and service of process upon the principal, accept service of process, appear for the principal, designate persons upon which process directed to the principal may be served, execute and file or deliver stipulations on the principal's behalf, verify pleadings, seek appellate review, procure and give surety and indemnity bonds, contract and pay for the preparation and printing of records and briefs, receive, execute, and file or deliver a consent, waiver, release, confession of judgment, satisfaction of judgment, notice, agreement, or other instrument in connection with the prosecution, settlement, or defense of a claim or litigation;

(7) Act for the principal with respect to bankruptcy or insolvency, whether voluntary or involuntary, concerning the principal or some other person, or with respect to a reorganization, receivership, or application for the appointment of a receiver or trustee which affects an interest of the principal in property or other thing of value;

(8) Pay a judgment, award, or order against the principal or a settlement made in connection with a claim or litigation; and

(9) Receive money or other thing of value paid in settlement of or as proceeds of a claim or litigation.

Source:Laws 2012, LB1113, § 35.

30-4036. Personal and family maintenance.

(1) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to personal and family maintenance authorizes the agent to:

(a) Perform the acts necessary to maintain the customary standard of living of the principal, the principal's spouse, and the following individuals, whether living when the power of attorney is executed or later born:

(i) The principal's children;

(ii) Other individuals legally entitled to be supported by the principal; and

(iii) The individuals whom the principal has customarily supported or indicated the intent to support;

(b) Make periodic payments of child support and other family maintenance required by a court or governmental agency or an agreement to which the principal is a party;

(i) Purchase, lease, or other contract; or

(ii) Paying the operating costs, including interest, amortization payments, repairs, improvements, and taxes, for premises owned by the principal or occupied by those individuals;

(d) Provide normal domestic help, usual vacations and travel expenses, and funds for shelter, clothing, food, appropriate education, including postsecondary and vocational education, and other current living costs for the individuals described in subdivision (1)(a) of this subsection;

(e) Pay expenses for necessary health care and custodial care on behalf of the individuals described in subdivision (1)(a) of this subsection;

(f) Act as the principal's personal representative pursuant to the Health Insurance Portability and Accountability Act, sections 1171 to 1179 of the Social Security Act, 42 U.S.C. 1320d, as amended, and applicable regulations, in making decisions related to the past, present, or future payment for the provision of health care consented to by the principal or anyone authorized under the law of this state to consent to health care on behalf of the principal;

(g) Continue any provision made by the principal for automobiles or other means of transportation, including registering, licensing, insuring, and replacing them, for the individuals described in subdivision (1)(a) of this subsection;

(h) Maintain credit and debit accounts for the convenience of the individuals described in subdivision (1)(a) of this subsection and open new accounts; and

(i) Continue payments incidental to the membership or affiliation of the principal in a religious institution, club, society, order, or other organization or to continue contributions to those organizations.

(2) Authority with respect to personal and family maintenance is neither dependent upon, nor limited by, authority that an agent may or may not have with respect to gifts under the Nebraska Uniform Power of Attorney Act.

Source:Laws 2012, LB1113, § 36.

30-4037. Benefits from governmental programs or civil or military service.

(1) For purposes of this section, benefits from governmental programs or civil or military service means any benefit, program, or assistance provided under a statute or regulation including social security, medicare, and medicaid.

(2) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to benefits from governmental programs or civil or military service authorizes the agent to:

(a) Execute vouchers in the name of the principal for allowances and reimbursements payable by the United States or a foreign government or by a state or subdivision of a state to the principal, including allowances and reimbursements for transportation of the individuals described in subdivision (1)(a) of section 30-4036 and for shipment of their household effects;

(b) Take possession and order the removal and shipment of property of the principal from a post, warehouse, depot, dock, or other place of storage or safekeeping, either governmental or private, and execute and deliver a release, voucher, receipt, bill of lading, shipping ticket, certificate, or other instrument for that purpose;

(c) Enroll in, apply for, select, reject, change, amend, or discontinue, on the principal's behalf, a benefit or program;

(d) Prepare, file, and maintain a claim of the principal for a benefit or assistance, financial or otherwise, to which the principal may be entitled under a statute or regulation;

(e) Initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation concerning any benefit or assistance the principal may be entitled to receive under a statute or regulation; and

(f) Receive the financial proceeds of a claim described in subdivision (2)(d) of this section and conserve, invest, disburse, or use for a lawful purpose anything so received.

Source:Laws 2012, LB1113, § 37.

30-4038. Retirement plans.

(1) For purposes of this section, retirement plan means a plan or account created by an employer, the principal, or another individual to provide retirement benefits or deferred compensation of which the principal is a participant, beneficiary, or owner, including a plan or account under the following sections of the Internal Revenue Code:

(a) An individual retirement account under section 408 of the Internal Revenue Code, 26 U.S.C. 408;

(b) A Roth individual retirement account under section 408A of the Internal Revenue Code, 26 U.S.C. 408A;

(d) An annuity or mutual fund custodial account under section 403(b) of the Internal Revenue Code, 26 U.S.C. 403(b);

(e) A pension, profit-sharing, stock bonus, or other retirement plan qualified under section 401(a) of the Internal Revenue Code, 26 U.S.C. 401(a);

(f) A plan under section 457(b) of the Internal Revenue Code, 26 U.S.C. 457(b); and

(g) A nonqualified deferred compensation plan under section 409A of the Internal Revenue Code, 26 U.S.C. 409A.

(2) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to retirement plans authorizes the agent to:

(a) Select the form and timing of payments under a retirement plan and withdraw benefits from a plan;

(b) Make a rollover, including a direct trustee-to-trustee rollover, of benefits from one retirement plan to another;

(d) Make contributions to a retirement plan;

(e) Exercise investment powers available under a retirement plan; and

(f) Borrow from, sell assets to, or purchase assets from a retirement plan.

Source:Laws 2012, LB1113, § 38.

30-4039. Taxes.

Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to taxes authorizes the agent to:

(1) Prepare, sign, and file federal, state, local, and foreign income, gift, payroll, property, Federal Insurance Contributions Act, and other tax returns, claims for refunds, requests for extension of time, petitions regarding tax matters, and any other tax-related documents, including receipts, offers, waivers, consents, including consents and agreements under section 2032A of the Internal Revenue Code, 26 U.S.C. 2032A, closing agreements, and any power of attorney required by the Internal Revenue Service or other taxing authority with respect to a tax year upon which the statute of limitations has not run and the following twenty-five tax years;

(2) Pay taxes due, collect refunds, post bonds, receive confidential information, and contest deficiencies determined by the Internal Revenue Service or other taxing authority;

(3) Exercise any election available to the principal under federal, state, local, or foreign tax law; and

(4) Act for the principal in all tax matters for all periods before the Internal Revenue Service or other taxing authority.

Source:Laws 2012, LB1113, § 39.

30-4040. Gifts.

(1) For purposes of this section, a gift for the benefit of a person includes a gift to a trust, an account under the Nebraska Uniform Transfers to Minors Act and a tuition savings account or prepaid tuition plan as defined under section 529 of the Internal Revenue Code, 26 U.S.C. 529.

(2) Subject to section 30-4024 and unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to gifts authorizes the agent only to:

(a) Make outright to, or for the benefit of, a person, a gift of any of the principal's property, including by the exercise of a presently exercisable general power of appointment held by the principal, in an amount per donee not to exceed the annual dollar limits of the federal gift tax exclusion under section 2503(b) of the Internal Revenue Code, 26 U.S.C. 2503(b), without regard to whether the federal gift tax exclusion applies to the gift, or if the principal's spouse agrees to consent to a split gift pursuant to section 2513 of the Internal Revenue Code, 26 U.S.C. 2513, in an amount per donee not to exceed twice the annual federal gift tax exclusion limit; and

(b) Consent, pursuant to section 2513 of the Internal Revenue Code, 26 U.S.C. 2513, to the splitting of a gift made by the principal's spouse in an amount per donee not to exceed the aggregate annual gift tax exclusions for both spouses.

(3) An agent may make a gift of the principal's property only as the agent determines is consistent with the principal's objectives if actually known by the agent and, if unknown, as the agent determines is consistent with the principal's best interest based on all relevant factors, including:

(a) The value and nature of the principal's property;

(b) The principal's foreseeable obligations and need for maintenance;

(d) Eligibility for a benefit, a program, or assistance under a statute or regulation; and

(e) The principal's personal history of making or joining in making gifts.

Source:Laws 2012, LB1113, § 40.

Cross References

Nebraska Uniform Transfers to Minors Act, see section 43-2701.

Annotations

The Nebraska Uniform Power of Attorney Act limits gifts made via a general grant of authority. In re Estate of Adelung, 306 Neb. 646, 947 N.W.2d 269 (2020).

30-4041. Statutory form power of attorney.

A document substantially in the following form may be used to create a statutory form power of attorney that has the meaning and effect prescribed by the Nebraska Uniform Power of Attorney Act.

NEBRASKA

STATUTORY FORM POWER OF ATTORNEY

IMPORTANT INFORMATION

This power of attorney authorizes another person (your agent) to make decisions concerning your property for you (the principal). Your agent will be able to make decisions and act with respect to your property (including your money) whether or not you are able to act for yourself. The meaning of authority over subjects listed on this form is explained in the Nebraska Uniform Power of Attorney Act.

This power of attorney does not authorize the agent to make health care decisions for you.

You should select someone you trust to serve as your agent. Unless you specify otherwise, generally the agent's authority will continue until you die or revoke the power of attorney or the agent resigns or is unable to act for you.

This form will not revoke a power of attorney previously executed by you unless you add that the previous power of attorney is revoked or that all other powers of attorney are revoked by this power of attorney.

Your agent is entitled to reasonable compensation unless you state otherwise in the Special Instructions.

This form provides for designation of one agent. If you wish to name more than one agent you may name a coagent in the Special Instructions. Coagents are not required to act together unless you include that requirement in the Special Instructions.

If your agent is unable or unwilling to act for you, your power of attorney will end unless you have named a successor agent. You may also name a second successor agent.

This power of attorney becomes effective immediately unless you state otherwise in the Special Instructions.

If you have questions about the power of attorney or the authority you are granting to your agent, you should seek legal advice before signing this form.

DESIGNATION OF AGENT

I ................................ (name of principal) name the following person as my agent:

Name of Agent: .........................................

Agent's Address: .......................................

Agent's Telephone Number: ..............................

DESIGNATION OF SUCCESSOR AGENT(S) (OPTIONAL)

If my agent is unable or unwilling to act for me, I name as my successor agent:

Name of Successor Agent: ................................

Successor Agent's Address: ..............................

Successor Agent's Telephone Number: .....................

If my successor agent is unable or unwilling to act for me, I name as my second successor agent:

Name of Second Successor Agent: .........................

Second Successor Agent's Address: .......................

Second Successor Agent's Telephone Number: ..............

Release of Information

I agree to, authorize, and allow full release of information, by any governmental agency, business, creditor, or third party who may have information pertaining to my assets or income, to my agent named herein.

GRANT OF GENERAL AUTHORITY

I grant my agent and any successor agent general authority to act for me with respect to the following subjects as defined in the Nebraska Uniform Power of Attorney Act:

(INITIAL each subject you want to include in the agent's general authority. If you wish to grant general authority over all of the subjects you may initial "All Preceding Subjects" instead of initialing each subject.)

(.....) Real Property

(.....) Tangible Personal Property

(.....) Stocks and Bonds

(.....) Commodities and Options

(.....) Banks and Other Financial Institutions

(.....) Operation of Entity or Business

(.....) Insurance and Annuities

(.....) Estates, Trusts, and Other Beneficial Interests

(.....) Claims and Litigation

(.....) Personal and Family Maintenance

(.....) Benefits from Governmental Programs or Civil or Military Service

(.....) Retirement Plans

(.....) Taxes

(.....) All Preceding Subjects

GRANT OF SPECIFIC AUTHORITY (OPTIONAL)

My agent MAY NOT do any of the following specific acts for me UNLESS I have INITIALED the specific authority listed below:

(CAUTION: Granting any of the following will give your agent the authority to take actions that could significantly reduce your property or change how your property is distributed at your death. INITIAL ONLY the specific authority you WANT to give your agent.)

(.....) Create, amend, revoke, or terminate an inter vivos trust

(.....) Make a gift, subject to the limitations of the Nebraska Uniform Power of Attorney Act and any special instructions in this power of attorney

(.....) Create or change rights of survivorship

(.....) Create or change a beneficiary designation

(.....) Delegate to another person to exercise the authority granted under this power of attorney

(.....) Waive the principal's right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan

(.....) Exercise fiduciary powers that the principal has authority to delegate

(.....) Renounce or disclaim an interest in property, including a power of appointment

LIMITATION ON AGENT'S AUTHORITY

Except as otherwise authorized by the Power of Personal and Family Maintenance, an agent MAY NOT use my property to benefit the agent or a person to whom the agent owes an obligation of support unless I have included that authority in the Special Instructions or the Grant of Specific Authority.

SPECIAL INSTRUCTIONS (OPTIONAL)

You may give special instructions on the following lines:

.........................................................

EFFECTIVE DATE

This power of attorney is effective immediately unless I have stated otherwise in the Special Instructions.

NOMINATION OF [CONSERVATOR OR GUARDIAN] (OPTIONAL)

If it becomes necessary for a court to appoint a [conservator or guardian] of my estate or [guardian] of my person, I nominate the following person(s) for appointment:

Name of Nominee for [conservator or guardian] of my estate:

.........................................................

Nominee's Address: ......................................

Nominee's Telephone Number: .............................

Name of Nominee for [guardian] of my person: ............

Nominee's Address: ......................................

Nominee's Telephone Number: .............................

RELIANCE ON THIS POWER OF ATTORNEY

Any person, including my agent, may rely upon the validity of this power of attorney or a copy of it unless that person knows it has terminated or is invalid.

SIGNATURE AND ACKNOWLEDGMENT

.......................................... ..................

Your Signature Date

..........................................

Your Name Printed

..........................................

..........................................

Your Address

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Your Telephone Number

State of .................................

[County] of ..............................

This document was acknowledged before me on ................ ,

(Date)

by .................................... .

(Name of Principal)

......................................... (Seal, if any)

Signature of Notary

My commission expires: ..................

[This document prepared by:

..............................................

.............................................]

IMPORTANT INFORMATION FOR AGENT

Agent's Duties

When you accept the authority granted under this power of attorney, a special legal relationship is created between you and the principal. This relationship imposes upon you legal duties that continue until you resign or the power of attorney is terminated or revoked. You must:

1. do what you know the principal reasonably expects you to do with the principal's property or, if you do not know the principal's expectations, act in the principal's best interest;

2. act in good faith;

3. do nothing beyond the authority granted in this power of attorney; and

4. disclose your identity as an agent whenever you act for the principal by writing or printing the name of the principal and signing your own name as "agent" in the following manner:

(Principal's Name) by (Your Signature) as Agent

Unless the Special Instructions in this power of attorney state otherwise, you must also:

1. act loyally for the principal's benefit;

2. avoid conflicts that would impair your ability to act in the principal's best interest;

3. act with care, competence, and diligence;

4. keep a record of all receipts, disbursements, and transactions made on behalf of the principal;

5. cooperate with any person that has authority to make health care decisions for the principal to do what you know the principal reasonably expects or, if you do not know the principal's expectations, to act in the principal's best interest; and

6. attempt to preserve the principal's estate plan if you know the plan and preserving the plan is consistent with the principal's best interest.

Termination of Agent's Authority

You must stop acting on behalf of the principal if you learn of any event that terminates this power of attorney or your authority under this power of attorney. Events that terminate a power of attorney or your authority to act under a power of attorney include:

1. death of the principal;

2. the principal's revocation of the power of attorney or your authority;

3. the occurrence of a termination event stated in the power of attorney;

4. the purpose of the power of attorney being fully accomplished; or

5. if you are married to the principal, a legal action filed with a court to end your marriage, or for your legal separation, unless the Special Instructions in this power of attorney state that such an action will not terminate your authority.

Liability of Agent

The meaning of the authority granted to you is defined in the Nebraska Uniform Power of Attorney Act. If you violate the Nebraska Uniform Power of Attorney Act or act outside the authority granted, you may be liable for any damages caused by your violation.

If there is anything about this document or your duties that you do not understand, you should seek legal advice.

OPTIONAL SIGNATURE OF AGENT

I HAVE READ AND ACCEPT THE DUTIES AND LIABILITIES OF THE AGENT AS SPECIFIED IN THIS POWER OF ATTORNEY

Agent's Signature: .....................................

Date: ..................................................

Source:Laws 2012, LB1113, § 41.

30-4042. Agent's certification.

The following optional form may be used by an agent to certify facts concerning a power of attorney.

AGENT'S CERTIFICATION AS TO THE VALIDITY OF POWER OF ATTORNEY AND AGENT'S AUTHORITY

State of ...............................................

[County] of ............................................

I, ..................................................... (Name of Agent), certify under penalty of perjury that ................................. (Name of Principal) granted me authority as an agent or successor agent in a power of attorney dated .............................. .

I further certify that to my knowledge:

(1) the Principal is alive and has not revoked the Power of Attorney or my authority to act under the Power of Attorney and the Power of Attorney and my authority to act under the Power of Attorney have not terminated;

(2) if the Power of Attorney was drafted to become effective upon the happening of an event or contingency, the event or contingency has occurred;

(3) if I was named as a successor agent, the prior agent is no longer able or willing to serve; and

(4) ....................................................

........................................................

(Insert other relevant statements)

SIGNATURE AND ACKNOWLEDGMENT

.......................................... ................

Agent's Signature Date

..........................................

Agent's Name Printed

..........................................

..........................................

Agent's Address

..........................................

Agent's Telephone Number

This document was acknowledged before me on ............... ,

(Date)

by ..................................... .

(Name of Agent)

.......................................... (Seal, if any)

Signature of Notary

My commission expires: ...................

This document prepared by:

..........................................

Source:Laws 2012, LB1113, § 42.

30-4043. Uniformity of application and construction.

In applying and construing the Nebraska Uniform Power of Attorney Act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact it.

Source:Laws 2012, LB1113, § 43.

30-4044. Relation to federal Electronic Signatures in Global and National Commerce Act.

The Nebraska Uniform Power of Attorney Act modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001 et seq., but does not modify, limit, or supersede section 101(c) of such act, 15 U.S.C. 7001(c), or authorize electronic delivery of any of the notices described in section 103(b) of such act, 15 U.S.C. 7003(b).

Source:Laws 2012, LB1113, § 44.

30-4045. Effect on existing powers of attorney.

Except as otherwise provided in the Nebraska Uniform Power of Attorney Act, on January 1, 2013:

(1) The act applies to a power of attorney created before, on, or after January 1, 2013;

(2) The act applies to a judicial proceeding concerning a power of attorney commenced on or after January 1, 2013;

(3) The act applies to a judicial proceeding concerning a power of attorney commenced before January 1, 2013, unless the court finds that application of a provision of the act would substantially interfere with the effective conduct of the judicial proceeding or prejudice the rights of a party, in which case that provision does not apply and the superseded law applies; and

(4) An act done before January 1, 2013, is not affected by the act.

Source:Laws 2012, LB1113, § 45.

Annotations

The Nebraska Uniform Power of Attorney Act does not apply retroactively to an agent's actions prior to January 1, 2013. In re Estate of Adelung, 306 Neb. 646, 947 N.W.2d 269 (2020).

The provision of the Nebraska Uniform Power of Attorney Act governing retroactivity should be construed similarly to section 30-38,110, the comparable provision of the Nebraska Uniform Trust Code. In re Estate of Adelung, 306 Neb. 646, 947 N.W.2d 269 (2020).

30-4101. Act, how cited.

Sections 30-4101 to 30-4118 shall be known and may be cited as the Public Guardianship Act.

Source:Laws 2014, LB920, § 1.

30-4102. Legislative findings.

(1) The Legislature finds that the present system of obtaining a guardian or conservator for an individual, which often depends on volunteers, is inadequate when there is no willing and qualified family member or other person available or willing to serve as guardian or conservator for such individual. The Legislature finds that there is a need to provide guardians and conservators when there is no one suitable or available with priority to serve the needs of such individual. The Legislature intends that establishment of the Office of Public Guardian will provide services for individuals when no private guardian or private conservator is available. The Legislature also finds that alternatives to full guardianship and less intrusive means of intervention should always be explored, including, but not limited to, limited guardianship, temporary guardianship, conservatorship, or the appointment of a payee. It is the intent of the Legislature to provide a public guardian or public conservator only to those individuals whose needs cannot be met through less intrusive means of intervention.

(2) The Legislature finds that:

(a) All individuals in need of a guardian or conservator shall have the opportunity to have one appointed for them;

(b) The priorities for appointment in sections 30-2601 to 30-2661 are appropriate in most instances;

(c) There are individuals in need of guardians or conservators for whom persons that have priority are unwilling, unable, or inappropriate to become a guardian or conservator;

(d) Guardians and conservators under the current system do not always carry out the assigned duties in a way that protects the individual and, in fact, sometimes carry out the duties in a way that abuses or neglects the individual; and

(e) For those for whom no person is available for appointment as guardian or conservator, the Office of Public Guardian may provide necessary services.

Source:Laws 2014, LB920, § 2.

30-4103. Terms, defined.

For purposes of the Public Guardianship Act:

(1) Council means the Advisory Council on Public Guardianship;

(2) Multidisciplinary team means the team of professionals hired by the Public Guardian pursuant to section 30-4104;

(3) Office means the Office of Public Guardian;

(4) Private conservator means an individual or a corporation with general power to serve as trustee who is not with the office and who is appointed by the court to act as conservator for a protected person;

(5) Private guardian means any person who is not with the office and who is appointed by the court to act as guardian for a ward;

(6) Protected person is as defined in section 30-2601;

(7) Public Guardian means the director of the office;

(8) Successor conservator means an individual or a corporation with general power to serve as trustee who is recruited by the office to become a conservator for a protected person previously served by the office;

(9) Successor guardian means a person or entity who is recruited by the office to become a guardian for a ward previously served by the office; and

(10) Ward is as defined in section 30-2601.

Source:Laws 2014, LB920, § 3; Laws 2016, LB934, § 28.

30-4104. Office of Public Guardian; created; Public Guardian; qualifications; duties; multidisciplinary team; members; associate public guardian legal counsel.

(1) The office is created within the judicial branch of government and is directly responsible to the State Court Administrator. The State Court Administrator shall appoint a director of the office who shall be known as the Public Guardian. The Public Guardian shall be an attorney licensed to practice law in Nebraska, shall be hired based on a broad knowledge of human development, intellectual disabilities, sociology, and psychology, and shall have business acuity and experience in public education and volunteer recruitment.

(2) The Public Guardian shall hire a multidisciplinary team of professionals to fulfill the responsibilities of the Public Guardianship Act. The multidisciplinary team shall include a deputy public guardian and may include one or more associate public guardian legal counsel, associate public guardians, administrative personnel, and any other personnel the Public Guardian deems appropriate. In addition, the Public Guardian may hire support staff as required. The multidisciplinary team may include professionals trained in law, health care, social work, education, business, accounting, administration, geriatrics, psychology, or other specialties with experience working with individuals with dementia, developmental disabilities, chronic and acute medical needs, mental health issues, substance abuse, or other conditions that are served by the Public Guardian.

(3) An associate public guardian legal counsel shall be an attorney licensed to practice law in Nebraska. The deputy public guardian shall be an attorney licensed to practice law in Nebraska unless the State Court Administrator directs otherwise.

(4) Legal representation provided by the Public Guardian, deputy public guardian, and associate public guardian legal counsel shall be limited to representing the Public Guardian and his or her designees in the roles and responsibilities of a court-appointed guardian or conservator in accordance with the Public Guardianship Act.

(5) The Public Guardian shall assume all the duties and responsibilities of a guardian and conservator for any individual appointed to his or her supervision and may designate authority to act on his or her behalf to the deputy public guardian, associate public guardian legal counsel, and associate public guardians. The Public Guardian shall administer public guardianship and public conservatorship and shall serve as staff to the council.

Source:Laws 2014, LB920, § 4; Laws 2016, LB934, § 29.

30-4105. Office of Public Guardian; duties.

The office:

(1) Shall provide immediate response when a guardian or conservator is needed in an emergency situation;

(2) Shall provide an option upon the resignation, removal, or discharge of a guardian or conservator so that there is no lapse in service to the ward or protected person;

(3) Shall provide equal access and protection for all individuals in need of guardianship or conservatorship services;

(4) Shall promote or provide public education to increase the awareness of the duties of guardians and conservators and encourage more people to serve as private guardians or private conservators;

(5) Shall recruit members of the general public or family members to serve as guardians or conservators and provide adequate training and support to enhance their success;

(6) Shall act as a resource to persons already serving as guardians or conservators for education, information, and support;

(7) Shall safeguard the rights of individuals by exploring all options available to support individuals in the least restrictive manner possible and seek full guardianship only as a last resort; and

(8) Shall model the highest standard of practice for guardians and conservators to improve the performance of all guardians and conservators in the state.

Source:Laws 2014, LB920, § 5.

30-4106. Advisory Council on Public Guardianship; created; members.

The Advisory Council on Public Guardianship is created. The council shall be appointed by the State Court Administrator, be comprised of individuals from a variety of disciplines who are knowledgeable in guardianship and conservatorship, and be representative of the geographical and cultural diversity of the state and reflect gender fairness. The council shall consist of the following members: A representative of the Nebraska County Court Judges Association, attorneys licensed to practice law in this state, social workers, mental health professionals, professionals with expertise in the aging population, developmental disability professionals, and other interested groups or individuals.

Source:Laws 2014, LB920, § 6.

30-4107. Advisory Council on Public Guardianship; members; terms; vacancy; officers.

The State Court Administrator shall appoint initial members of the council for staggered terms of one, two, or three years as designated by the State Court Administrator. All subsequent appointments shall be made for terms of three years. Any vacancy on the council shall be filled in the same manner in which the original appointment was made and for the duration of the term vacated. Appointments of initial members of the council shall be made within ninety days after January 1, 2015. The council shall select a chairperson, a vice-chairperson, and such other officers as it deems necessary.

Source:Laws 2014, LB920, § 7.

30-4108. Advisory Council on Public Guardianship; duties; meetings; expenses.

(1) The council shall advise the Public Guardian on the administration of public guardianship and public conservatorship.

(2) The council shall meet at least four times per year and at other times deemed necessary to perform its functions upon the call of the chairperson. Members of the council shall be reimbursed for expenses as provided in sections 81-1174 to 81-1177.

Source:Laws 2014, LB920, § 8; Laws 2020, LB381, § 25.

30-4109. Public Guardian; duties.

Consistent with the purposes and objectives of the Public Guardianship Act and in consultation with the council, the Public Guardian shall:

(1) Develop a uniform system of reporting and collecting statistical data regarding guardianships and conservatorships;

(2) Develop and adopt a standard of practice and code of ethics for public guardianship and public conservatorship;

(3) Prepare a biennial budget for the implementation of the act;

(4) Develop guidelines for a sliding scale of fees to be charged for public guardianship and public conservatorship services;

(5) Maintain, in conjunction with private and other public resources, a curricula for training sessions to be made available for successor guardians and successor conservators and private guardians and private conservators;

(6) Maintain training programs available statewide to offer the training curricula for interested parties to include:

(a) Helping a guardian understand his or her ward's disabilities and a conservator understand his or her fiduciary duties with respect to his or her protected person;

(b) Helping a guardian encourage increased independence on the part of his or her ward, as appropriate;

(c) Helping a guardian with the preparation and revision of guardianship plans and reports and a conservator with the preparation and revision of accountings; and

(d) Advising a guardian or conservator on ways to secure rights, benefits, and services to which his or her ward or protected person is entitled;

(7) Promote public awareness of guardianship and conservatorship, the responsibilities attached, and the need for more private guardians and private conservators; and

(8) Apply for and receive funds from public and private sources for carrying out the purposes and obligations of the act.

Source:Laws 2014, LB920, § 9.

30-4110. Rules.

The Supreme Court, upon recommendation by the Public Guardian, in consultation with the council, shall promulgate rules to carry out the Public Guardianship Act.

Source:Laws 2014, LB920, § 10.

30-4111. Reports; contents.

The Public Guardian shall report to the State Court Administrator as directed by the State Court Administrator. The Public Guardian shall report to the Chief Justice and the Legislature on the implementation of the Public Guardianship Act on or before January 1 of each year. The report to the Legislature shall be made electronically. The report shall include the number and types of guardianships and conservatorships for which the Public Guardian has been appointed, including full guardianships, limited guardianships, and temporary guardianships, the disposition of those appointments, the amount of guardianship and conservatorship fees charged and collected under the act, and the status of the waiting list for public guardianship and public conservatorship services.

Source:Laws 2014, LB920, § 11.

30-4112. Appointment of Public Guardian as guardian or conservator.

A court may order appointment of the Public Guardian as a guardian or conservator only after notice to the Public Guardian and a determination that the appointment or order is necessary and will not result in the Public Guardian having more appointments than permitted by section 30-4115. The determination of necessity may require the court to ascertain whether there is any other alternative to public guardianship or public conservatorship.

Source:Laws 2014, LB920, § 12.

30-4113. Fees.

The office shall charge fees pursuant to the guidelines developed pursuant to section 30-4109 unless modified or waived by the court.

Source:Laws 2014, LB920, § 13.

30-4114. Successor guardian or successor conservator; report; court filing.

(1) Once the Public Guardian is appointed as guardian or conservator, the office shall make a reasonable effort to locate a successor guardian or successor conservator. By June 30 and January 1 of each year, the office shall file an aggregate report with the State Court Administrator describing its efforts to locate a successor guardian or successor conservator.

(2) Upon location of a successor guardian or successor conservator, the office shall file a motion with the court for termination or modification of the guardianship or conservatorship. Availability of a successor guardian or successor conservator shall be deemed a change in the suitability of the office for carrying out its powers and duties under section 30-4105.

Source:Laws 2014, LB920, § 14.

30-4115. Office; responsibilities and duties; Public Guardian; limitation on appointment; notice.

(1)(a) The office shall maintain the appropriate personnel and workload scope necessary to fulfill all its responsibilities and duties under the Public Guardianship Act.

(b) The office shall provide appropriate and high-quality care and support, including timely decisionmaking, to all public wards and public protected persons served by the Public Guardian and his or her designees.

(c) Public guardianship and public conservatorship cases shall be managed by the Public Guardian and be served by the multidisciplinary team through a caseload distribution of wards and protected persons that takes into consideration the:

(i) Identified needs of the service population;

(ii) Complexity and status of each case, based upon factors such as the individual’s living situation, the type of guardianship being provided, or the existence of complex medical conditions;

(iii) Size of the geographical area covered;

(iv) Qualifications and professional expertise of each team member;

(v) Availability of auxiliary services by support staff and volunteers;

(vi) Organizational responsibilities; and

(vii) Applicable legal requirements.

(2) The Public Guardian may accept an appointment as a public guardian or public conservator for an individual not to exceed an average ratio of twenty public wards or public protected persons to each member of the multidisciplinary team. When determining such average ratio, all full-time members of the office's multidisciplinary team may be counted.

(3) When the average ratio described in subsection (2) of this section has been reached, the Public Guardian shall not accept further appointments. The Public Guardian, upon reaching the maximum number of appointments, shall notify the State Court Administrator that such maximum number of appointments has been reached.

Source:Laws 2014, LB920, § 15; Laws 2016, LB934, § 30.

30-4116. Public Guardian; appointment; powers; duties.

(1) When the court appoints the Public Guardian as guardian or conservator for an individual, the Public Guardian immediately succeeds to (a) all powers and duties of a guardian provided in sections 30-2626 and 30-2628, if appointed a guardian, or (b) all powers and duties of a conservator provided in sections 30-2646, 30-2647, 30-2653, 30-2654, 30-2655, 30-2656, and 30-2657, if appointed a conservator.

(2) The Public Guardian shall:

(a) Be considered as an interested party in the welfare of the ward or protected person to which the Public Guardian is nominated. If the office is unable to accept the nomination due to its caseload or the status of its client-to-staff average ratio under section 30-4115, good cause shall be presumed to exist to deny its appointment. In such event, the appearance of the office shall no longer be required and the Public Guardian shall no longer be considered an interested party;

(b) Not file petitions for guardianships or conservatorships. After being appointed in a case, the Public Guardian may file a motion for termination, a motion for modification, or take any other legal action required to fulfill the duties and responsibilities of a guardian or conservator in accordance with the Public Guardianship Act;

(c) Visit the facility in which the ward or protected person is to be placed if it is proposed that the individual be placed outside his or her home; and

(d) Monitor the ward or protected person and his or her care and progress on a continuing basis. Monitoring shall, at a minimum, consist of monthly personal contact with the ward or protected person. The Public Guardian shall maintain a written record of each visit with a ward or protected person. The Public Guardian shall maintain periodic contact with all individuals and agencies, public or private, providing care or related services to the ward or protected person.

Source:Laws 2014, LB920, § 16; Laws 2016, LB934, § 31.

30-4117. Discharge of Public Guardian; when.

The Public Guardian may be discharged by a court with respect to any of the authority granted over a ward or protected person upon petition of such individual, any interested party, or the Public Guardian or upon the court's own motion when it appears that the services of the Public Guardian are no longer necessary.

Source:Laws 2014, LB920, § 17.

Annotations

Once the Office of the Public Guardian has been appointed by the court, it may be discharged on the ground its services are no longer necessary only when it shows (1) the ward is no longer incapacitated and in need of a guardian or (2) it has located a successor guardian who is qualified, available, and willing to become a guardian. In re Guardianship of Nicholas H., 309 Neb. 1, 958 N.W.2d 661 (2021).

30-4118. Public Guardianship Cash Fund; created; use; investment.

The Public Guardianship Cash Fund is created. The State Court Administrator shall administer the fund. The fund shall consist of money remitted pursuant to the Public Guardianship Act. The fund shall only be used to support the Public Guardianship Act. Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.

Source:Laws 2014, LB920, § 18.

Cross References

Nebraska Capital Expansion Act, see section 72-1269.

Nebraska State Funds Investment Act, see section 72-1260.

30-4201. Legislative findings.

The Legislature finds that it is in the best interests of persons under disability and the public for the authorities and responsibilities of a guardian ad litem to be expanded to include an objective investigation and assessment of the needs of a person who comes before the court in any guardianship, conservatorship, or other protective proceeding to ensure the protection of the rights of the person who is the subject of the proceeding. The Legislature also finds that the public is benefited from having trustworthy and competent guardians and conservators appointed for incapacitated persons, wards, protected persons, and minors.

Source:Laws 2016, LB934, § 14.

30-4202. Guardian ad litem; qualifications; rules; act as own counsel, when.

(1) A guardian ad litem appointed pursuant to the Nebraska Probate Code shall:

(a) Be an attorney in good standing admitted to the practice of law in the State of Nebraska and meet any other requirements imposed by the Supreme Court; and

(b) Before serving as a guardian ad litem, complete the training requirements for a guardian ad litem as provided under Supreme Court rule.

(2) The Supreme Court shall promulgate rules for guardians ad litem in guardianship, conservatorship, or other protective proceedings.

(3) A guardian ad litem appointed pursuant to the Nebraska Probate Code may act as his or her own counsel and as counsel for the person who is the subject of the guardianship, conservatorship, or other protective proceeding unless such person obtains his or her own counsel or there are special reasons why the guardian ad litem or the person who is the subject of the proceeding should have separate counsel. In such cases, the guardian ad litem shall have the right to counsel and shall be entitled to have the court appoint counsel for him or her without regard to his or her financial ability to retain counsel.

Source:Laws 2016, LB934, § 15.

30-4203. Guardian ad litem; duties; powers.

(1) A guardian ad litem appointed pursuant to the Nebraska Probate Code shall:

(a) Consult with the person for whom he or she has been appointed within two weeks after the appointment for such person and make every reasonable effort to become familiar with the condition of such person;

(b) Investigate, gather information regarding, and make an assessment of the condition of such person and report to the court the condition of such person;

(d) Be present at all hearings before the court regarding such person unless expressly excused by the court;

(e) Inquire of others directly involved with such person as to such person's condition, including, but not limited to, any physician, psychologist, care provider, clergy member, financial institution, corporation, business entity, or other person with which such person has done or is doing business; and

(f) Defend the social, economic, and safety interests of such person. For purposes of this subdivision, (i) social interest means the logical and practical expectations a person has who is the object of a guardianship, conservatorship, or other protective proceeding based on the guardian ad litem's objective and independent assessment of the person's situation, including economic, social, mental, physical, emotional, and other relevant factors, (ii) economic interest means what a reasonable person would consider to be prudent given the situation of the person who is the object of the guardianship, conservatorship, or other protective proceeding, and (iii) safety interest means what a reasonable person would consider safe given the mental, physical, and emotional situation of the person who is the object of a guardianship, conservatorship or other protective proceeding.

(2) A guardian ad litem appointed pursuant to the Nebraska Probate Code may:

(a) Conduct discovery, present witnesses, cross-examine witnesses, present other evidence, file motions, and appeal any decisions regarding the person for whom he or she has been appointed;

(b) Enter into stipulations and agreements concerning such person in the guardianship, conservatorship, or other protective proceeding deemed by the guardian ad litem to be in such person's best interests;

(c) Request, at any time after the filing of a petition in a guardianship, conservatorship, or other protective proceeding, that the court order a medical, psychological, geriatric, or other evaluation of the person who is the subject of the guardianship, conservatorship, or other protective proceeding to determine the condition and extent of impairment, if any, of the person who is the subject of the guardianship, conservatorship, or other protective proceeding; and

(d) Have access to any report which resulted from any evaluation ordered by the court and which was used for evaluating the status of the person who is the subject of the guardianship, conservatorship, or other protective proceeding.

Source:Laws 2016, LB934, § 16.

30-4204. Right to obtain information; admissible in evidence.

The guardian ad litem may obtain, informally or by subpoena, the following information regarding the person for whom the guardian ad litem has been appointed: (1) A report from any medical provider, provider of psychological services, law enforcement, adult protective services agency, or financial institution; and (2) any account or record of any business, corporation, partnership, or other business entity which such person owns or in which such person has an interest. Any material obtained by a guardian ad litem pursuant to this section is admissible in evidence.

Source:Laws 2016, LB934, § 17.

Annotations

This section empowers the guardian ad litem to obtain information as part of his or her investigation and permits for the admissibility of the information so collected. By its plain terms, this section addresses "material obtained by a guardian ad litem" and does not pertain to a report created by a guardian ad litem. In re Guardianship of Jill G., 312 Neb. 108, 977 N.W.2d 913 (2022).

30-4205. Recommendation regarding guardianship, conservatorship, or protective order; written report; contents.

(1) The guardian ad litem shall make recommendations to the court regarding a temporary or permanent guardianship, conservatorship, or other protective order. The report shall be in writing and provided to the court at least one week prior to the hearing date. A copy of the report shall be provided to all interested persons.

(2) For a guardianship proceeding, the report shall address whether the person for whom the guardianship is sought is an incapacitated person. If the guardian ad litem determines that the person is incapacitated, the guardian ad litem shall make recommendations as to whether the court should order a limited or full guardianship. If the guardian ad litem recommends a limited guardianship, the report shall include recommendations on the authorities and responsibilities the guardian and ward shall have. If a full guardianship is recommended, the report shall specifically address why a full guardianship is necessary to protect the best interests of the incapacitated person.

Source:Laws 2016, LB934, § 18.

30-4206. Information considered; court orders; refusal to produce document; remedy.

(1) In carrying out his or her powers and duties as a guardian ad litem, the guardian ad litem shall consider any information that is warranted by the nature and circumstances of each guardianship, conservatorship, or other protective proceeding.

(2) The guardian ad litem may petition the court for an order to (a) inspect documents, in physical or electronic form, pertaining to the person who is the subject of the guardianship, conservatorship, or other protective proceeding that are in the possession of a corporation, financial institution, health care provider, or business entity, or (b) visit any person who may provide relevant information about the person who is the subject of the guardianship, conservatorship, or other protective proceeding.

(3) Any person, corporation, financial institution, health care provider, or business entity that refuses to produce any document requested by the guardian ad litem and ordered by the court shall be subject to contempt of court or other discovery sanctions.

Source:Laws 2016, LB934, § 19.

30-4207. Filing of petition or other motion.

The guardian ad litem may file a petition and any other motion the guardian ad litem deems to be in the best interests of the person for whom the guardian ad litem has been appointed.

Source:Laws 2016, LB934, § 20.

30-4208. Control over person or property or affairs.

A guardian ad litem shall not have indirect or direct physical control over a person for whom the guardian ad litem has been appointed. A guardian ad litem shall not have indirect or direct control over the property or affairs of a person for whom the guardian ad litem has been appointed.

Source:Laws 2016, LB934, § 21.

30-4209. Duration of appointment.

A guardian ad litem's appointment begins at the time he or she is appointed by the court and does not end until the court allows the guardian ad litem to withdraw as guardian ad litem, terminates the appointment of the guardian ad litem, removes or suspends the guardian ad litem, or appoints the guardian ad litem to serve in another capacity.

Source:Laws 2016, LB934, § 22.

30-4210. Cost of evaluation.

The court may order the cost of any evaluation as provided in section 30-4203 to be paid by the county where the guardianship, conservatorship, or other protective proceeding is brought, or the court may, after notice and a hearing, assess the cost of any such evaluation, in whole or in part, to the person who is the subject of the guardianship, conservatorship, or other protective proceeding. The court shall determine the ability of such person to pay and the amount of the payment.

Source:Laws 2016, LB934, § 23.

30-4301. (UDTA 1) Act, how cited.

(UDTA 1) Sections 30-4301 to 30-4319 shall be known and may be cited as the Nebraska Uniform Directed Trust Act.

Source:Laws 2019, LB536, § 1.

30-4302. (UDTA 2) Definitions.

(UDTA 2) In the Nebraska Uniform Directed Trust Act:

(1) Breach of trust includes a violation by a trust director or trustee of a duty imposed on that director or trustee by the terms of the trust, the Nebraska Uniform Directed Trust Act, or law of this state other than the Nebraska Uniform Directed Trust Act pertaining to trusts.

(2) Directed trust means a trust for which the terms of the trust grant a power of direction.

(3) Directed trustee means a trustee that is subject to a trust director's power of direction.

(4) Person means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity.

(5) Power of direction means a power over a trust granted to a person by the terms of the trust to the extent the power is exercisable while the person is not serving as a trustee. The term includes a power over the investment, management, or distribution of trust property or other matters of trust administration, including, but not limited to, amendment, reform, or termination of the trust. The term excludes the powers described in subsection (b) of section 30-4305.

(6) Settlor has the same meaning as in section 30-3803.

(7) State means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any other territory or possession subject to the jurisdiction of the United States.

(8) Terms of a trust means:

(A) except as otherwise provided in subdivision (8)(B) of this section, the manifestation of the settlor's intent regarding a trust's provisions as:

(i) expressed in the trust instrument; or

(ii) established by other evidence that would be admissible in a judicial proceeding; or

(B) the trust's provisions as established, determined, or amended by:

(i) a trustee or trust director in accordance with applicable law;

(ii) court order; or

(iii) a nonjudicial settlement agreement under section 30-3811.

(9) Trust director means a person that is granted a power of direction by the terms of a trust to the extent the power is exercisable while the person is not serving as a trustee. The person is a trust director whether or not the terms of the trust refer to the person as a trust director and whether or not the person is a beneficiary or settlor of the trust.

(10) Trustee has the same meaning as in section 30-3803.

Source:Laws 2019, LB536, § 2.

30-4303. (UDTA 3) Application; principal place of administration.

(UDTA 3) The Nebraska Uniform Directed Trust Act applies to a trust, whenever created, that has its principal place of administration in this state, subject to the following rules:

(1) If the trust was created before September 7, 2019, the Nebraska Uniform Directed Trust Act applies only to a decision or action occurring on or after September 7, 2019.

(2) If the principal place of administration of the trust is changed to this state on or after September 7, 2019, the Nebraska Uniform Directed Trust Act applies only to a decision or action occurring on or after the date of the change.

Source:Laws 2019, LB536, § 3.

30-4304. (UDTA 4) Common law and principles of equity.

(UDTA 4) The common law and principles of equity supplement the Nebraska Uniform Directed Trust Act, except to the extent modified by the Nebraska Uniform Directed Trust Act or law of this state other than the Nebraska Uniform Directed Trust Act.

Source:Laws 2019, LB536, § 4.

30-4305. (UDTA 5) Exclusions.

(UDTA 5) (a) In this section, power of appointment means a power that enables a person acting in a nonfiduciary capacity to designate a recipient of an ownership interest in or another power of appointment over trust property.

(b) The Nebraska Uniform Directed Trust Act does not apply to a:

(1) power of appointment;

(2) power to appoint or remove a trustee or trust director;

(3) power of a settlor over a trust to the extent the settlor has a power to revoke the trust;

(4) power of a beneficiary over a trust to the extent the exercise or nonexercise of the power affects the beneficial interest of:

(A) the beneficiary; or

(B) the beneficial interest of another beneficiary represented by the beneficiary under sections 30-3822 to 30-3826 with respect to the exercise or nonexercise of the power;

(5) power over a trust if:

(A) the terms of the trust provide that the power is held in a nonfiduciary capacity; and

(B) the power must be held in a nonfiduciary capacity to achieve the settlor's tax objectives under the Internal Revenue Code of 1986 as defined in section 49-801.01; or

(6) power over a trust if:

(A) the terms of the trust provide that the power is held in a nonfiduciary capacity; and

(B) the power must be held in a nonfiduciary capacity to correct a mistake of the scrivener in order to conform the terms of the trust with the intention of a settlor. The correction must not reform the trust in any material respect.

(c) Unless the terms of a trust provide otherwise, a power granted to a person to designate a recipient of an ownership interest in or power of appointment over trust property which is exercisable while the person is not serving as a trustee is a power of appointment and not a power of direction.

Source:Laws 2019, LB536, § 5; Laws 2021, LB248, § 1.

30-4306. (UDTA 6) Powers of trust director.

(UDTA 6) (a) Subject to section 30-4307, the terms of a trust may grant a power of direction to a trust director.

(b) Unless the terms of a trust provide otherwise:

(1) a trust director may exercise any further power appropriate to the exercise or nonexercise of a power of direction granted to the trust director under subsection (a) of this section; and

(2) trust directors with joint powers must act by majority decision.

(c) A power of direction includes only those powers granted by the terms of the trust and further powers pursuant to subdivision (b)(1) of this section must be appropriate to the exercise or nonexercise of such power of direction granted by the terms of the trust.

Source:Laws 2019, LB536, § 6.

30-4307. (UDTA 7) Limitation on trust director.

(UDTA 7) A trust director is subject to the same rules as a trustee in a like position and under similar circumstances in the exercise or nonexercise of a power of direction or further power under subdivision (b)(1) of section 30-4306 regarding:

(1) a payback provision in the terms of a trust necessary to comply with the medicaid reimbursement requirements of section 68-919; and

(2) a charitable interest in the trust, including notice regarding the interest to the Attorney General.

Source:Laws 2019, LB536, § 7.

30-4308. (UDTA 8) Duty and liability of trust director.

(UDTA 8) (a) Subject to subsection (b) of this section, with respect to a power of direction or further power under subdivision (b)(1) of section 30-4306:

(1) a trust director has the same fiduciary duty and liability in the exercise or nonexercise of the power:

(A) if the power is held individually, as a sole trustee in a like position and under similar circumstances; or

(B) if the power is held jointly with a trustee or another trust director, as a cotrustee in a like position and under similar circumstances; and

(2) the terms of the trust may vary the director's duty or liability to the same extent the terms of the trust could vary the duty or liability of a trustee in a like position and under similar circumstances.

(b) Unless the terms of a trust provide otherwise, if a trust director is licensed, certified, or otherwise authorized or permitted by law other than the Nebraska Uniform Directed Trust Act to provide health care in the ordinary course of the director's business or practice of a profession, to the extent the director acts in that capacity, the director has no duty or liability under the Nebraska Uniform Directed Trust Act.

(c) The terms of a trust may impose a duty or liability on a trust director in addition to the duties and liabilities under this section.

Source:Laws 2019, LB536, § 8.

30-4309. (UDTA 9) Duty and liability of directed trustee.

(UDTA 9) (a) Subject to subsections (b) and (c) of this section, a directed trustee shall take reasonable action to comply with a trust director's exercise or nonexercise of a power of direction or further power under subdivision (b)(1) of section 30-4306, and the trustee is not liable for the action.

(b) A directed trustee must not comply with a trust director's exercise or nonexercise of a power of direction or further power under subdivision (b)(1) of section 30-4306 to the extent that by complying the trustee would engage in willful misconduct.

(c) A directed trustee must determine that the trust director's exercise of power of direction under subsection (a) of section 30-4306 or appropriation of further power under subsection (b) of section 30-4306 is granted by the terms of the trust pursuant to subsection (c) of section 30-4306.

(d) An exercise of a power of direction under which a trust director may release a trustee or another trust director from liability for breach of trust is not effective if:

(1) the breach involved the trustee's or other director's willful misconduct;

(2) the release was induced by improper conduct of the trustee or other director in procuring the release; or

(3) at the time of the release, the director did not know the material facts relating to the breach.

(e) A directed trustee that has reasonable doubt about its duty under this section may petition the court for instructions.

(f) The terms of a trust may impose a duty or liability on a directed trustee in addition to the duties and liabilities under this section.

Source:Laws 2019, LB536, § 9.

30-4310. (UDTA 10) Duty to provide information to trust director or trustee.

(UDTA 10) (a) Subject to section 30-4311, a trustee shall provide information to a trust director to the extent the information is reasonably related both to:

(1) the powers or duties of the trustee; and

(2) the powers or duties of the director.

(b) Subject to section 30-4311, a trust director shall provide information to a trustee or another trust director to the extent the information is reasonably related both to:

(1) the powers or duties of the director; and

(2) the powers or duties of the trustee or other director.

(c) A trustee that acts in reliance on information provided by a trust director is not liable for a breach of trust to the extent the breach resulted from the reliance, unless by so acting the trustee engages in willful misconduct.

(d) A trust director that acts in reliance on information provided by a trustee or another trust director is not liable for a breach of trust to the extent the breach resulted from the reliance, unless by so acting the trust director engages in willful misconduct.

Source:Laws 2019, LB536, § 10.

30-4311. (UDTA 11) No duty to monitor, inform, or advise.

(UDTA 11) (a) Unless the terms of a trust provide otherwise:

(1) a trustee does not have a duty to:

(A) monitor a trust director; or

(B) inform or give advice to a settlor, beneficiary, trustee, or trust director concerning an instance in which the trustee might have acted differently than the director; and

(2) by taking an action described in subdivision (a)(1) of this section, a trustee does not assume the duty excluded by such subdivision.

(b) Unless the terms of a trust provide otherwise:

(1) a trust director does not have a duty to:

(A) monitor a trustee or another trust director; or

(B) inform or give advice to a settlor, beneficiary, trustee, or another trust director concerning an instance in which the director might have acted differently than a trustee or another trust director; and

(2) by taking an action described in subdivision (b)(1) of this section, a trust director does not assume the duty excluded by such subdivision.

Source:Laws 2019, LB536, § 11.

30-4312. (UDTA 12) Application to cotrustee.

(UDTA 12) The terms of a trust may relieve a cotrustee from duty and liability with respect to another cotrustee's exercise or nonexercise of a power of the other cotrustee to the same extent that in a directed trust a directed trustee is relieved from duty and liability with respect to a trust director's power of direction under sections 30-4309 to 30-4311.

Source:Laws 2019, LB536, § 12.

30-4313. (UDTA 13) Limitation of action against trust director.

(UDTA 13) (a) An action against a trust director for breach of trust must be commenced within the same limitation period as under section 30-3894 for an action for breach of trust against a trustee in a like position and under similar circumstances.

(b) A report or accounting has the same effect on the limitation period for an action against a trust director for breach of trust that the report or accounting would have under section 30-3894 in an action for breach of trust against a trustee in a like position and under similar circumstances.

Source:Laws 2019, LB536, § 13.

30-4314. (UDTA 14) Defenses in action against trust director.

(UDTA 14) In an action against a trust director for breach of trust, the director may assert the same defenses a trustee in a like position and under similar circumstances could assert in an action for breach of trust against the trustee.

Source:Laws 2019, LB536, § 14.

30-4315. (UDTA 15) Jurisdiction over trust director.

(UDTA 15) (a) By accepting appointment as a trust director of a trust subject to the Nebraska Uniform Directed Trust Act, the director submits to personal jurisdiction of the courts of this state regarding any matter related to a power or duty of the director.

(b) This section does not preclude other methods of obtaining jurisdiction over a trust director.

Source:Laws 2019, LB536, § 15.

30-4316. (UDTA 16) Office of trust director.

(UDTA 16) Unless the terms of a trust provide otherwise, the rules applicable to a trustee apply to a trust director regarding the following matters:

(1) acceptance under section 30-3857;

(2) giving of bond to secure performance under section 30-3858;

(3) reasonable compensation under section 30-3864;

(4) resignation under section 30-3861;

(5) removal under section 30-3862; and

(6) vacancy and appointment of successor under section 30-3860.

Source:Laws 2019, LB536, § 16.

30-4317. (UDTA 17) Uniformity of application and construction.

(UDTA 17) In applying and construing the Nebraska Uniform Directed Trust Act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

Source:Laws 2019, LB536, § 17.

30-4318. (UDTA 18) Electronic records and signatures.

(UDTA 18) The provisions of the Nebraska Uniform Directed Trust Act governing the legal effect, validity, or enforceability of electronic records or electronic signatures, and of contracts formed or performed with the use of such records or signatures, conform to the requirements of section 102 of the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7002, as such section existed on January 1 immediately preceding January 1, 2005, and supersede, modify, and limit the requirements of the Electronic Signatures in Global and National Commerce Act.

Source:Laws 2019, LB536, § 18.

30-4319. Date; applicability.

(a) Except as otherwise provided in the Nebraska Uniform Directed Trust Act, on January 1, 2021:

(1) the Nebraska Uniform Directed Trust Act applies to all trusts created before, on, or after January 1, 2021;

(2) the Nebraska Uniform Directed Trust Act applies to all judicial proceedings concerning trust directors, trustees, and cotrustees commenced on or after January 1, 2021;

(3) the Nebraska Uniform Directed Trust Act applies to judicial proceedings concerning trusts commenced before January 1, 2021, unless the court finds that application of a particular provision of the Nebraska Uniform Directed Trust Act would substantially interfere with the effective conduct of the judicial proceedings or prejudice the rights of the parties, in which case the particular provision of the Nebraska Uniform Directed Trust Act does not apply and the superseded law applies; and

(4) an act done before January 1, 2021, is not affected by the Nebraska Uniform Directed Trust Act.

(b) If a right is acquired, extinguished, or barred upon the expiration of a prescribed period that has commenced to run under any other statute before January 1, 2021, that statute continues to apply to the right even if it has been repealed or superseded.

Source:Laws 2019, LB536, § 19.

30-4401. Act, how cited.

Sections 30-4401 to 30-4415 shall be known and may be cited as the Advance Mental Health Care Directives Act.

Source:Laws 2020, LB247, § 1.

30-4402. Legislative findings; act; purposes.

(1) The Legislature finds that:

(a) Issues implicated in advance planning for end-of-life care are distinct from issues implicated in advance planning for mental health care;

(b) Mental illness can be episodic and include periods of incapacity which obstruct an individual's ability to give informed consent and impede the individual's access to mental health care;

(c) An acute mental health episode can induce an individual to refuse treatment when the individual would otherwise consent to treatment if the individual's judgment were unimpaired;

(d) An individual may lose capacity without meeting the criteria for civil commitment in Nebraska; and

(e) An individual with mental illness has the same right to plan in advance for treatment as an individual planning for end-of-life care.

(2) The purposes of the Advance Mental Health Care Directives Act are to:

(a) Facilitate advance planning to help (i) prevent unnecessary involuntary commitment and incarceration, (ii) improve patient safety and health, (iii) improve mental health care, and (iv) enable an individual to exercise control over such individual's mental health treatment; and

(b) Protect patient safety, autonomy, and health by allowing an individual to create an advance mental health care directive to instruct and direct the individual's mental health care.

Source:Laws 2020, LB247, § 2.

30-4403. Advance mental health care directive; use; legislative declarations; right of individual.

(1) The Legislature hereby declares that an advance mental health care directive can only accomplish the purposes stated in section 30-4402 if an individual may use an advance mental health care directive to:

(a) Set forth instructions for any foreseeable mental health care when the individual loses capacity to make decisions regarding such mental health care, including, but not limited to, consenting to inpatient mental health treatment, psychotropic medication, or electroconvulsive therapy;

(b) Dictate whether the directive is revocable during periods of incapacity and provide consent to treatment despite illness-induced refusals;

(d) In compliance with the federal Health Insurance Portability and Accountability Act of 1996, include in the directive a release authorization form stating the names of persons to whom information regarding the mental health treatment of the principal may be disclosed during the time the directive is activated, including, but not limited to, health care professionals, mental health care professionals, family, friends, and other interested persons with whom treatment providers are allowed to communicate if the principal loses capacity.

(2) An individual with capacity has the right to control decisions relating to the individual's mental health care unless subject to a court order involving mental health care under any other provision of law.

Source:Laws 2020, LB247, § 3.

30-4404. Terms, defined.

For purposes of the Advance Mental Health Care Directives Act:

(1) Activation means the point at which an advance mental health care directive is used as the basis for decisionmaking as provided in section 30-4409;

(2) Attorney in fact means an individual designated under a power of attorney for health care to make mental health care decisions for a principal;

(3)(a) Capacity means having both (i) the ability to understand and appreciate the nature and consequences of mental health care decisions, including the benefits and risks of each, and alternatives to any proposed mental health treatment, and to reach an informed decision, and (ii) the ability to communicate in any manner such mental health care decision.

(b) An individual's capacity is evaluated in relation to the demands of a particular mental health care decision;

(4) Principal means an individual who is nineteen years of age or older with capacity who provides instructions, preferences, or both instructions and preferences for any foreseeable mental health care in an advance mental health care directive; and

(5) Relative means the spouse, child, parent, sibling, grandchild, or grandparent, by blood, marriage, or adoption, of an individual.

Source:Laws 2020, LB247, § 4.

30-4405. Advance mental health care directive; requirements; irrevocable, when; witnesses; release authorization form.

(1) An advance mental health care directive shall:

(a) Be in writing;

(b) Be dated and signed by the principal or, subject to subsection (5) of this section, another individual acting at the direction of the principal if the principal is physically unable to sign. The attorney in fact of the principal may not sign the directive for the principal;

(c) State whether the principal wishes to be able to revoke the directive at any time or whether the directive remains irrevocable during periods of incapacity. Failure to clarify whether the directive is revocable does not render it unenforceable. If the directive fails to state whether it is revocable or irrevocable, the principal may revoke it at any time;

(d) State that the principal affirms that the principal is aware of the nature of the directive and signs the directive freely and voluntarily; and

(e)(i) Be signed in the presence of a notary public who is not the attorney in fact of the principal; or

(ii) Be witnessed in writing by at least two disinterested adults as provided in subsections (4) and (5) of this section.

(2) An advanced mental health care directive shall be valid upon execution.

(3) To be irrevocable during periods of incapacity, the directive shall state that the directive remains irrevocable during periods of incapacity.

(4) A witness shall not be:

(a) The principal's attending physician or a member of the principal's mental health treatment team at the time of executing the directive;

(b) The principal's spouse, parent, child, grandchild, sibling, presumptive heir, or known devisee at the time of the witnessing;

(d) The attorney in fact of the principal or a person designated to make mental health care decisions for the principal; or

(e) The owner, operator, employee, or relative of an owner or operator of a treatment facility at which the principal is receiving care.

(5) Each witness shall attest that:

(a) The witness was present when the principal signed the directive or, if the principal was physically unable to sign the directive, when another individual signed the directive as provided in subdivision (1)(b) of this section;

(b) The principal did not appear incapacitated or under undue influence or duress when the directive was signed; and

(6) A principal may, in compliance with the federal Health Insurance Portability and Accountability Act of 1996, include in the directive a release authorization form stating the name of persons to whom information regarding the mental health treatment of the principal may be disclosed during the time the directive is activated, including, but not limited to, health care professionals, mental health care professionals, family, friends, and other interested persons with whom treatment providers are allowed to communicate if the principal loses capacity.

Source:Laws 2020, LB247, § 5.

30-4406. Instructions and preferences; binding; matters addressed; limitation.

(1) Except as provided in subsection (2) of this section, in an advance mental health care directive, a principal may issue instructions, preferences, or both instructions and preferences concerning the principal's mental health treatment. If the principal has designated an attorney in fact under a power of attorney for health care, the advance mental health care directive shall be binding on the principal's attorney in fact. The instructions and preferences may address matters including, but not limited to:

(a) Consent to or refusal of specific types of mental health treatment, such as inpatient mental health treatment, psychotropic medication, or electroconvulsive therapy. Consent to electroconvulsive therapy must be express;

(b) Treatment facilities and care providers;

(d) Physicians who will provide treatment;

(e) Medications for psychiatric treatment;

(f) Emergency interventions, including seclusion, restraint, or medication;

(g) The provision of trauma-informed care and treatment;

(h) In compliance with the federal Health Insurance Portability and Accountability Act of 1996, a release authorization form stating the name of persons to whom information regarding the mental health treatment of the principal may be disclosed during the time the directive is activated, including persons who should be notified immediately of admission to an inpatient facility;

(i) Individuals who should be prohibited from visitation; and

(j) Other instructions or preferences regarding mental health care.

(2) A principal may not consent to or authorize an attorney in fact to consent to psychosurgery in a directive. If such consent or authorization is expressed in the directive, this does not revoke the entire directive, but such a provision is unenforceable.

Source:Laws 2020, LB247, § 6.

30-4407. Expiration; revocation.

(1) An advance mental health care directive, including an irrevocable advance mental health care directive, shall remain in effect until it expires according to its terms or until it is revoked by the principal, whichever is earlier.

(2) A principal may revoke the directive even if the principal is incapacitated unless the principal has made the directive irrevocable during periods of incapacity pursuant to subsection (3) of section 30-4405.

(3) A principal with capacity or a principal without capacity who did not make the directive irrevocable during periods of incapacity may revoke the directive by:

(a) A written statement revoking the directive; or

(b) A subsequent directive that revokes the original directive. If the subsequent directive does not revoke the original directive in its entirety, only inconsistent provisions in the original directive are revoked.

(4) When a principal with capacity consents to treatment that is different than the treatment requested in the directive or refuses treatment that the principal requested in the directive, this consent or refusal does not revoke the entire directive but is a waiver of the inconsistent provision.

Source:Laws 2020, LB247, § 7.

30-4408. Self-binding arrangement for mental health care; advance consent to inpatient treatment or administration of psychotropic medication; requirements.

(1) A principal has a right to form a self-binding arrangement for mental health care in an advance mental health care directive. A self-binding arrangement allows the principal to obtain mental health treatment in the event that an acute mental health episode renders the principal incapacitated and induces the principal to refuse treatment.

(2) To provide advance consent to inpatient treatment despite the principal's illness-induced refusal, a principal shall, in such directive:

(a) Make the directive irrevocable pursuant to subsection (3) of section 30-4405; and

(b) Consent to admission to an inpatient treatment facility.

(3) To provide advance consent to administration of psychotropic medication despite the principal's illness-induced refusal of medication, a principal shall, in such directive:

(a) Make the directive irrevocable pursuant to subsection (3) of section 30-4405; and

(b) Consent to administration of psychotropic medication.

Source:Laws 2020, LB247, § 8.

30-4409. Activation.

(1) Unless a principal designates otherwise in the advance mental health care directive, a directive becomes active when the principal loses capacity. Activation is the point at which the directive shall be used as the basis for decisionmaking and shall dictate mental health treatment of the principal.

(2) The principal may designate in the directive an activation standard other than incapacity by describing the circumstances under which the directive becomes active.

Source:Laws 2020, LB247, § 9.

30-4410. Attorney in fact; authority.

(1) Except as otherwise provided in subsection (2) of this section, a specific grant of authority to an attorney in fact to consent to the principal's inpatient mental health treatment or psychotropic medication is not required to convey authority to the attorney in fact to consent to such treatments. An attorney in fact may consent to such treatments for the principal if the principal's written grant of authority in the principal's advance mental health care directive is sufficiently broad to encompass these decisions.

(2) When an incapacitated principal refuses inpatient mental health treatment or psychotropic medication, the principal's attorney in fact only has the authority to consent to such treatments for the principal if the principal's directive is irrevocable and expressly authorizes the attorney in fact to consent to the applicable treatment. An attorney in fact shall only have the authority to consent to electroconvulsive therapy for the principal if the principal's directive is irrevocable and expressly authorizes the attorney in fact to consent to electroconvulsive therapy.

(3) An attorney in fact's decisions for the principal must be in good faith and consistent with the principal's instructions expressed in the principal's directive. If the directive fails to address an issue, the attorney in fact shall make decisions in accordance with the principal's instructions or preferences otherwise known to the attorney in fact. If the attorney in fact does not know the principal's instructions or preferences, the attorney in fact shall make decisions in the best interests of the principal.

(4) If the principal grants the attorney in fact authority to make decisions for the principal in circumstances in which the principal still has capacity, the principal's decisions when the principal has capacity shall nonetheless override the attorney in fact's decisions.

Source:Laws 2020, LB247, § 10.

30-4411. Principal who has capacity; contemporaneous preferences; effect; conflicting documents; which controls.

(1) Despite activation, an advance mental health care directive, including an irrevocable directive, shall not prevail over contemporaneous preferences expressed by a principal who has capacity.

(2) If an individual has a power of attorney for health care and an advance mental health care directive and there is any conflict between the two documents, the advance mental health care directive controls with regard to any mental health care instructions or preferences.

Source:Laws 2020, LB247, § 11.

30-4412. Inpatient treatment facility; principal refuses admission; facility; duties.

(1) If the principal forms a self-binding arrangement for treatment in an advance mental health care directive but then refuses admission to an inpatient treatment facility despite the directive's instructions to admit, the inpatient treatment facility shall respond as follows:

(a) The facility shall, as soon as practicable, obtain the informed consent of the principal's attorney in fact, if the principal has an attorney in fact;

(b) Two licensed physicians shall, within twenty-four hours after the principal's arrival at the facility, evaluate the principal to determine whether the principal has capacity and shall document in the principal's medical record a summary of findings, evaluations, and recommendations; and

(c) If the evaluating physicians determine the principal lacks capacity, the principal shall be admitted into the inpatient treatment facility pursuant to the principal's directive.

(2) After twenty-one days following the date of admission, if the principal has not regained capacity or has regained capacity but refuses to consent to remain for additional treatment, the facility shall dismiss the principal from the facility's care and the principal shall be released during daylight hours or to the care of an individual available only during nondaylight hours. This subsection does not apply if the principal is detained pursuant to involuntary commitment standards.

(3) A principal may specify in the advance mental health care directive a shorter amount of time than twenty-one days.

Source:Laws 2020, LB247, § 12.

30-4413. Psychotropic medication; administration after refusal; conditions.

If a principal with an irrevocable advance mental health care directive consenting to inpatient treatment refuses psychotropic medication through words or actions, psychotropic medication may only be administered by or under the immediate direction of a licensed psychiatrist, and only if:

(1) The principal expressly consented to psychotropic medication in the principal's irrevocable directive;

(2) The principal's attorney in fact, if the principal has an attorney in fact, consents to psychotropic medication; and

(3) Two of the following health care professionals recommend, in writing, treatment with the specific psychotropic medication: A licensed psychiatrist, physician, physician assistant, or advanced practice registered nurse or any other health care professional licensed to diagnose illnesses and prescribe drugs for mental health care.

Source:Laws 2020, LB247, § 13.

30-4414. Health care professional; immunity.

(1) A health care professional acting or declining to act, in accord with reasonable medical standards, in good faith reliance upon the principal's advance mental health care directive, and, if the principal has an attorney in fact, in reliance upon the decision made by a person whom the health care professional in good faith believes is the attorney in fact acting pursuant to the advance mental health care directive, shall not be subject to criminal prosecution, civil liability, or discipline for unprofessional conduct for so acting or declining to act.

(2) In the absence of knowledge of the revocation of an advance mental health care directive, a health care professional who acts or declines to act based upon the advance mental health care directive and in accord with reasonable medical standards shall not be subject to criminal prosecution, civil liability, or discipline for unprofessional conduct for so acting or declining to act.

(3) Nothing in the Advance Mental Health Care Directives Act shall limit the liability of an attorney in fact or a health care professional for a negligent act or omission.

Source:Laws 2020, LB247, § 14.

30-4415. Form; department powers and duties.

(1) An advance mental health care directive shall be in a form that complies with the Advance Mental Health Care Directives Act and may be in the form provided in this subsection.

ADVANCE MENTAL HEALTH CARE DIRECTIVE

I ................., being an adult nineteen years of age or older and of sound mind, freely and voluntarily make this directive for mental health care to be followed if it is determined that my ability to receive and evaluate information effectively or communicate decisions is impaired to such an extent that I lack the capacity to refuse or consent to mental health care. "Mental health care" includes, but is not limited to, treatment of mental illness with psychotropic medication, admission to and retention in a treatment facility for a period up to 21 days, or electroconvulsive therapy.

I understand that I may become incapable of giving or withholding informed consent for mental health care due to the symptoms of a diagnosed mental disorder. These symptoms may include, but not be limited to:

............................................................................................................

PSYCHOTROPIC MEDICATIONS

If I become incapable of giving or withholding informed consent for mental health care, my wishes regarding psychotropic medications, including classes of medications if appropriate, are as follows (check one or both of the following, if applicable):

[ ] I consent to the administration of the following medications:

............................................................................................................

[ ] I do not consent to the administration of the following medications:

............................................................................................................

Conditions or limitations, if any:

............................................................................................................

ADMISSION TO AND RETENTION IN FACILITY

If I become incapable of giving or withholding informed consent for mental health care, my wishes regarding admission to and retention in a health care facility for mental health care are as follows (check one of the following, if applicable):

[ ] I consent to being admitted to a treatment facility for mental health care.

[ ] I do not consent to being admitted to a treatment facility for mental health care.

This directive cannot, by law, provide consent to retain me in a treatment facility for more than 21 days.

Conditions or limitations, if any:

...........................................................................................................................................

ELECTROCONVULSIVE THERAPY

If I become incapable of giving or withholding informed consent for mental health care, my wishes regarding electroconvulsive therapy are as follows (check one of the following, if applicable):

[ ] I consent to the administration of electroconvulsive therapy.

[ ] I do not consent to the administration of electroconvulsive therapy.

Conditions or limitations, if any:

............................................................................................................

DESIGNATION OF IRREVOCABILITY DURING INCAPACITY

If I become incapable of giving or withholding informed consent for mental health care, my advance mental health care directive remains irrevocable during such period of incapacity:

[] Yes

[] No

If yes, the directive is irrevocable during such period of incapacity with regard to:

[] Admission and retention in a treatment facility for mental health care for up to 21 days;

[] Psychotropic medication as follows:

..............................................................;

[] Electroconvulsive therapy; or

[] All of the above.

If there is anything in this document that you do not understand, you should ask a lawyer to explain it to you. This directive will not be valid unless it is signed in the presence of a notary public or signed by two qualified witnesses who are either personally known to you or verify your identity and who are present when you sign or acknowledge your signature.

SELECTION OF PHYSICIAN

(OPTIONAL)

If it becomes necessary to determine if I have become incapable of giving or withholding informed consent for mental health care, I choose .......................... of ................... (address of licensed physician) to be one of the two licensed physicians who will determine whether I am incapable. If that licensed physician is unavailable, that physician's designee shall serve as one of the two licensed physicians who will determine whether I am incapable.

ADDITIONAL REFERENCES OR INSTRUCTIONS

............................................................................................................

Conditions or limitations, if any:

............................................................................................................

This document will continue in effect until you revoke it as described below or until a date you designate in this document. If you wish to have this document terminate on a certain date, please indicate:

................................ ...................................

(Date of expiration of directive) (Signature of Principal)

...................................

(Printed Name of Principal)

...................................

(Date signed)

THIS DOCUMENT MUST BE SIGNED IN THE PRESENCE OF WITNESSES

OR SIGNED IN THE PRESENCE OF A NOTARY PUBLIC. COMPLETE THE

APPROPRIATE PORTION WHICH FOLLOWS:

AFFIRMATION OF WITNESSES

We affirm that the principal is personally known to us or the principal presented identification, that the principal signed this advance mental health care directive in our presence or, if the principal was unable to sign the directive, the principal's designated representative signed the directive in our presence, that the principal did not appear to be incapacitated or under duress or undue influence, and that neither of us is:

(a) The principal's attending physician or a member of the principal's mental health treatment team;

(b) The principal's spouse, parent, child, grandchild, sibling, presumptive heir, or known devisee at the time of the witnessing;

(d) The attorney in fact of the principal or a person designated to make mental health care decisions for the principal; or

(e) The owner, operator, employee, or relative of an owner or operator of a treatment facility at which the principal is receiving care.

Witnessed By:

...................... ......................

(Signature of Witness) (Signature of Witness)

...................... ......................

(Printed Name of Witness) (Printed Name of Witness)

...................... ......................

(Date) (Date)

OR COMPLETE THE FOLLOWING PORTION IF THIS DOCUMENT

IS SIGNED IN THE PRESENCE OF A NOTARY PUBLIC

State of Nebraska,)

) ss.

County of ..... .)

On this ........ day of ......... 20...., before me, ......., a notary public in and for ............. County, personally came .........., personally to me known to be the identical person whose name is affixed to the above advance mental health care directive as principal, and I declare that such person appears in sound mind and not under duress or undue influence, that such person acknowledges the execution of the same to be such person's voluntary act and deed, and that I am not the attorney in fact of the principal designated by any power of attorney for health care.

Witness my hand and notarial seal at ......... in such county the day and year last above written.

..........................

Seal Signature of Notary Public

NOTICE TO PERSON MAKING AN ADVANCE MENTAL HEALTH CARE DIRECTIVE

This is an important legal document. It creates an advance mental health care directive. Before signing this document, you should know these important facts:

This document allows you to make decisions in advance about mental health care, including administration of psychotropic medication, short-term (up to 21 days) admission to a treatment facility, and use of electroconvulsive therapy. The instructions that you include in this advance mental health care directive will be followed only if you are incapable of making treatment decisions. Otherwise, you will be considered capable to give or withhold consent for the treatments.

If you have an attorney in fact appointed under a power of attorney for health care, your attorney in fact has a duty to act consistent with your desires as stated in this document or, if your desires are not stated or otherwise made known to the attorney in fact, to act in a manner consistent with what your attorney in fact in good faith believes to be in your best interest. The person has the right to withdraw from acting as your attorney in fact at any time.

You have the right to revoke this document in whole or in part at any time you have been determined to be capable of giving or withholding informed consent for mental health care. A revocation is effective when it is communicated to your attending health care professional in writing and is signed by you. The revocation may be in a form similar to the following:

REVOCATION

I, ..............................., knowingly and voluntarily revoke my advance mental health care directive as indicated (check one of the following):

[ ] I revoke my entire directive.

[ ] I revoke the following portion or portions of my directive:

............................................................................................................................................

...................................

(Signature of Principal)

...................................

(Printed Name of Principal)

...................................

(Date)

EVALUATION BY HEALTH CARE PROFESSIONAL

(OPTIONAL)

I, ................................, have evaluated the principal and determined that the principal is capable of giving or withholding informed consent for mental health care.

...................................

(Signature of health care professional)

...................................

(Printed Name of health care professional)

................................

(Date)

(2) The Department of Health and Human Services may adopt and promulgate rules and regulations to provide information to the public regarding the Advance Mental Health Care Directives Act. The rules and regulations may include information relating to the need to review and update an advance mental health care directive in a timely manner and the creation of a wellness recovery action plan upon dismissal from a treatment facility for ongoing mental health issues and rehabilitation goals. The department shall publish the form in this section on its website for use by the public.

Source:Laws 2020, LB247, § 15.

30-4501. Act, how cited.

Sections 30-4501 to 30-4529 shall be known and may be cited as the Uniform Trust Decanting Act.

Source:Laws 2020, LB808, § 11.

30-4502. Definitions.

In the Uniform Trust Decanting Act:

(1) Appointive property means the property or property interest subject to a power of appointment.

(2) Ascertainable standard has the same meaning as in section 30-3803.

(3) Authorized fiduciary means:

(A) a trustee or other fiduciary, other than a settlor, that has discretion to distribute or direct a trustee to distribute part or all of the principal of the first trust to one or more current beneficiaries;

(B) a special fiduciary appointed under section 30-4509; or

(4) Beneficiary means a person that:

(A) has a present or future, vested or contingent, beneficial interest in a trust;

(B) holds a power of appointment over trust property; or

(5) Charitable interest means an interest in a trust which:

(A) is held by an identified charitable organization and makes the organization a qualified beneficiary;

(B) benefits only charitable organizations and, if the interest were held by an identified charitable organization, would make the organization a qualified beneficiary; or

(C) is held solely for charitable purposes and, if the interest were held by an identified charitable organization, would make the organization a qualified beneficiary.

(6) Charitable organization means:

(A) a person, other than an individual, organized and operated exclusively for charitable purposes; or

(B) a government or governmental subdivision, agency, or instrumentality, to the extent it holds funds exclusively for a charitable purpose.

(7) Charitable purpose has the same meaning as the description of a charitable trust in section 30-3831.

(8) Court means the court in this state having jurisdiction in matters relating to trusts.

(9) Current beneficiary means a beneficiary that on the date the beneficiary's qualification is determined is a distributee or permissible distributee of trust income or principal. The term includes the holder of a presently exercisable general power of appointment but does not include a person that is a beneficiary only because the person holds any other power of appointment.

(10) Decanting power or the decanting power means the power of an authorized fiduciary under the act to distribute property of a first trust to one or more second trusts or to modify the terms of the first trust.

(11) Expanded distributive discretion means a discretionary power of distribution that is not limited to an ascertainable standard or a reasonably definite standard.

(12) First trust means a trust over which an authorized fiduciary may exercise the decanting power.

(13) First-trust instrument means the trust instrument for a first trust.

(14) General power of appointment means a power of appointment exercisable in favor of a powerholder, the powerholder's estate, a creditor of the powerholder, or a creditor of the powerholder's estate.

(15) Jurisdiction has the same meaning as in section 30-3803.

(16) Person means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity.

(17) Power of appointment means a power that enables a powerholder acting in a nonfiduciary capacity to designate a recipient of an ownership interest in or another power of appointment over the appointive property. The term does not include a power of attorney.

(18) Powerholder means a person in which a donor creates a power of appointment.

(19) Presently exercisable power of appointment means a power of appointment exercisable by the powerholder at the relevant time. The term:

(A) includes a power of appointment exercisable only after the occurrence of a specified event, the satisfaction of an ascertainable standard, or the passage of a specified time only after:

(i) the occurrence of the specified event;

(ii) the satisfaction of the ascertainable standard; or

(iii) the passage of the specified time; and

(B) does not include a power exercisable only at the powerholder's death.

(20) Qualified beneficiary has the same meaning as in section 30-3803.

(21) Reasonably definite standard means a clearly measurable standard under which a holder of a power of distribution is legally accountable within the meaning of 26 U.S.C. 674(b)(5)(A), as such section existed on November 14, 2020, and any applicable regulations.

(22) Record means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(23) Second trust means:

(A) a first trust after modification under the Uniform Trust Decanting Act; or

(B) a trust to which a distribution of property from a first trust is or may be made under the act.

(24) Second-trust instrument means the trust instrument for a second trust.

(25) Settlor, except as otherwise provided in section 30-4525, has the same meaning as in section 30-3803.

(26) Sign means, with present intent to authenticate or adopt a record:

(A) to execute or adopt a tangible symbol; or

(B) to attach to or logically associate with the record an electronic symbol, sound, or process.

(27) State has the same meaning as in section 30-3803.

(28) Terms of the trust means:

(A) Except as otherwise provided in subdivision (B) of this subdivision, the manifestation of the settlor's intent regarding a trust's provisions as:

(i) expressed in the trust instrument; or

(ii) established by other evidence that would be admissible in a judicial proceeding; or

(B) the trust's provisions as established, determined, or amended by:

(i) a trustee or other person in accordance with applicable law;

(ii) a court order; or

(iii) a nonjudicial settlement agreement under section 30-3811.

(29) Trust instrument means a record executed by the settlor to create a trust or by any person to create a second trust which contains some or all of the terms of the trust, including any amendments.

Source:Laws 2020, LB808, § 12.

30-4503. Scope.

(a) Except as otherwise provided in subsections (b) and (c) of this section, the Uniform Trust Decanting Act applies to an express trust that is irrevocable or revocable by the settlor only with the consent of the trustee or a person holding an adverse interest.

(b) The act does not apply to a trust held solely for charitable purposes.

(d) The act does not limit the power of a trustee, powerholder, or other person to distribute or appoint property in further trust or to modify a trust under the trust instrument, law of this state other than the act, common law, a court order, or a nonjudicial settlement agreement.

(e) The act does not affect the ability of a settlor to provide in a trust instrument for the distribution of the trust property or appointment in further trust of the trust property or for modification of the trust instrument.

Source:Laws 2020, LB808, § 13.

30-4504. Fiduciary duty.

(a) In exercising the decanting power, an authorized fiduciary shall act in accordance with its fiduciary duties, including the duty to act in accordance with the purposes of the first trust.

(b) The Uniform Trust Decanting Act does not create or imply a duty to exercise the decanting power or to inform beneficiaries about the applicability of the act.

(c) Except as otherwise provided in a first-trust instrument, for purposes of the act and section 30-3866 and subsection (a) of section 38-3867, the terms of the first trust are deemed to include the decanting power.

Source:Laws 2020, LB808, § 14.

30-4505. Application; governing law.

The Uniform Trust Decanting Act applies to a trust created before, on, or after November 14, 2020, which:

(1) has its principal place of administration in this state, including a trust whose principal place of administration has been changed to this state; or

(2) provides by its trust instrument that it is governed by the law of this state or is governed by the law of this state for the purpose of:

(A) administration, including administration of a trust whose governing law for purposes of administration has been changed to the law of this state;

(B) construction of terms of the trust; or

Source:Laws 2020, LB808, § 15.

30-4506. Reasonable reliance.

A trustee or other person that reasonably relies on the validity of a distribution of part or all of the property of a trust to another trust, or a modification of a trust, under the Uniform Trust Decanting Act, law of this state other than the act, or the law of another jurisdiction is not liable to any person for any action or failure to act as a result of the reliance.

Source:Laws 2020, LB808, § 16.

30-4507. Notice; exercise of decanting power.

(a) In this section, a notice period begins on the day notice is given under subsection (c) of this section and ends fifty-nine days after the day notice is given.

(b) Except as otherwise provided in the Uniform Trust Decanting Act, an authorized fiduciary may exercise the decanting power without the consent of any person and without court approval.

(c) Except as otherwise provided in subsection (f) of this section, an authorized fiduciary shall give notice in a record of the intended exercise of the decanting power not later than sixty days before the exercise to:

(1) each settlor of the first trust, if living or then in existence;

(2) each qualified beneficiary of the first trust;

(3) each holder of a presently exercisable power of appointment over any part or all of the first trust;

(4) each person that currently has the right to remove or replace the authorized fiduciary;

(5) each other fiduciary of the first trust;

(6) each fiduciary of the second trust;

(7) each person acting as an advisor or protector of the first trust;

(8) each person holding an adverse interest who has the power to consent to the revocation of the first trust; and

(9) the Attorney General, if subsection (b) of section 30-4514 applies.

(d) An authorized fiduciary is not required to give notice under subsection (c) of this section to a person that is not known to the fiduciary or is known to the fiduciary but cannot be located by the fiduciary after reasonable diligence.

(e) A notice under subsection (c) of this section must:

(1) specify the manner in which the authorized fiduciary intends to exercise the decanting power;

(2) specify the proposed effective date for exercise of the power;

(3) include a copy of the first-trust instrument; and

(4) include a copy of all second-trust instruments.

(f) The decanting power may be exercised before expiration of the notice period under subsection (a) of this section if all persons entitled to receive notice waive the period in a signed record.

(g) The receipt of notice, waiver of the notice period, or expiration of the notice period does not affect the right of a person to file an application under section 30-4509 asserting that:

(1) an attempted exercise of the decanting power is ineffective because it did not comply with the act or was an abuse of discretion or breach of fiduciary duty; or

(2) section 30-4522 applies to the exercise of the decanting power.

(h) An exercise of the decanting power is not ineffective because of the failure to give notice to one or more persons under subsection (c) of this section if the authorized fiduciary acted with reasonable care to comply with subsection (c) of this section.

Source:Laws 2020, LB808, § 17.

30-4508. Representation.

(a) Notice to a person with authority to represent and bind another person under a first-trust instrument or sections 30-3822 to 30-3826 has the same effect as notice given directly to the person represented.

(b) Consent of or waiver by a person with authority to represent and bind another person under a first-trust instrument or sections 30-3822 to 30-3826 is binding on the person represented unless the person represented objects to the representation before the consent or waiver otherwise would become effective.

(c) A person with authority to represent and bind another person under a first-trust instrument or sections 30-3822 to 30-3826 may file an application under section 30-4509 on behalf of the person represented.

(d) A settlor may not represent or bind a beneficiary for purposes of the Uniform Trust Decanting Act.

Source:Laws 2020, LB808, § 18.

30-4509. Court involvement.

(a) On application of an authorized fiduciary, a person entitled to notice under subsection (c) of section 30-4507, a beneficiary, or with respect to a charitable interest the Attorney General or other person that has standing to enforce the charitable interest, the court may:

(1) provide instructions to the authorized fiduciary regarding whether a proposed exercise of the decanting power is permitted under the Uniform Trust Decanting Act and consistent with the fiduciary duties of the authorized fiduciary;

(2) appoint a special fiduciary and authorize the special fiduciary to determine whether the decanting power should be exercised under the act and to exercise the decanting power;

(3) approve an exercise of the decanting power;

(4) determine that a proposed or attempted exercise of the decanting power is ineffective because:

(A) after applying section 30-4522, the proposed or attempted exercise does not or did not comply with the act; or

(B) the proposed or attempted exercise would be or was an abuse of the fiduciary's discretion or a breach of fiduciary duty;

(5) determine the extent to which section 30-4522 applies to a prior exercise of the decanting power;

(6) provide instructions to the trustee regarding the application of section 30-4522 to a prior exercise of the decanting power; or

(7) order other relief to carry out the purposes of the act.

(b) On application of an authorized fiduciary, the court may approve:

(1) an increase in the fiduciary's compensation under section 30-4516; or

(2) a modification under section 30-4518 of a provision granting a person the right to remove or replace the fiduciary.

Source:Laws 2020, LB808, § 19.

30-4510. Formalities.

An exercise of the decanting power must be made in a record signed by an authorized fiduciary. The signed record must, directly or by reference to the notice required by section 30-4507, identify the first trust and the second trust or trusts and state the property of the first trust being distributed to each second trust and the property, if any, that remains in the first trust.

Source:Laws 2020, LB808, § 20.

30-4511. Decanting power under expanded distributive discretion.

(a) In this section:

(1) Noncontingent right means a right that is not subject to the exercise of discretion or the occurrence of a specified event that is not certain to occur. The term does not include a right held by a beneficiary if any person has discretion to distribute property subject to the right to any person other than the beneficiary or the beneficiary's estate.

(2) Presumptive remainder beneficiary means a qualified beneficiary other than a current beneficiary.

(3) Successor beneficiary means a beneficiary that is not a qualified beneficiary on the date the beneficiary's qualification is determined. The term does not include a person that is a beneficiary only because the person holds a nongeneral power of appointment.

(4) Vested interest means:

(A) a right to a mandatory distribution that is a noncontingent right as of the date of the exercise of the decanting power;

(B) a current and noncontingent right, annually or more frequently, to a mandatory distribution of income, a specified dollar amount, or a percentage of value of some or all of the trust property;

(C) a current and noncontingent right, annually or more frequently, to withdraw income, a specified dollar amount, or a percentage of value of some or all of the trust property;

(D) a presently exercisable general power of appointment; or

(E) a right to receive an ascertainable part of the trust property on the trust's termination which is not subject to the exercise of discretion or to the occurrence of a specified event that is not certain to occur.

(b) Subject to subsection (c) of this section and section 30-4514, an authorized fiduciary that has expanded distributive discretion over the principal of a first trust for the benefit of one or more current beneficiaries may exercise the decanting power over the principal of the first trust.

(1) include as a current beneficiary a person that is not a current beneficiary of the first trust, except as otherwise provided in subsection (d) of this section;

(2) include as a presumptive remainder beneficiary or successor beneficiary a person that is not a current beneficiary, presumptive remainder beneficiary, or successor beneficiary of the first trust, except as otherwise provided in subsection (d) of this section; or

(3) reduce or eliminate a vested interest.

(d) Subject to subdivision (3) of subsection (c) of this section and section 30-4514, in an exercise of the decanting power under this section, a second trust may be a trust created or administered under the law of any jurisdiction and may:

(1) retain a power of appointment granted in the first trust;

(2) omit a power of appointment granted in the first trust, other than a presently exercisable general power of appointment;

(3) create or modify a power of appointment if the powerholder is a current beneficiary of the first trust and the authorized fiduciary has expanded distributive discretion to distribute principal to the beneficiary; and

(4) create or modify a power of appointment if the powerholder is a presumptive remainder beneficiary or successor beneficiary of the first trust, but the exercise of the power may take effect only after the powerholder becomes, or would have become if then living, a current beneficiary.

(e) A power of appointment described in subdivisions (1) through (4) of subsection (d) of this section may be general or nongeneral. The class of permissible appointees in favor of which the power may be exercised may be broader than or different from the beneficiaries of the first trust.

(f) If an authorized fiduciary has expanded distributive discretion over part but not all of the principal of a first trust, the fiduciary may exercise the decanting power under this section over that part of the principal over which the authorized fiduciary has expanded distributive discretion.

Source:Laws 2020, LB808, § 21.

30-4512. Decanting power under limited distributive discretion.

(a) In this section, limited distributive discretion means a discretionary power of distribution that is limited to an ascertainable standard or a reasonably definite standard.

(b) An authorized fiduciary that has limited distributive discretion over the principal of the first trust for benefit of one or more current beneficiaries may exercise the decanting power over the principal of the first trust.

(c) Under this section and subject to section 30-4514, a second trust may be created or administered under the law of any jurisdiction. Under this section, the second trusts, in the aggregate, must grant each beneficiary of the first trust beneficial interests which are substantially similar to the beneficial interests of the beneficiary in the first trust.

(d) A power to make a distribution under a second trust for the benefit of a beneficiary who is an individual is substantially similar to a power under the first trust to make a distribution directly to the beneficiary. A distribution is for the benefit of a beneficiary if:

(1) the distribution is applied for the benefit of the beneficiary;

(2) the beneficiary is under a legal disability or the trustee reasonably believes the beneficiary is incapacitated, and the distribution is made as permitted under the Nebraska Uniform Trust Code; or

(3) the distribution is made as permitted under the terms of the first-trust instrument and the second-trust instrument for the benefit of the beneficiary.

(e) If an authorized fiduciary has limited distributive discretion over part but not all of the principal of a first trust, the fiduciary may exercise the decanting power under this section over that part of the principal over which the authorized fiduciary has limited distributive discretion.

Source:Laws 2020, LB808, § 22.

Cross References

Nebraska Uniform Trust Code, see section 30-3801.

30-4513. Trust for beneficiary with disability.

(a) In this section:

(1) Beneficiary with a disability means a beneficiary of a first trust who the special-needs fiduciary believes may qualify for governmental benefits based on disability, whether or not the beneficiary currently receives those benefits or is an individual who has been adjudicated incapacitated.

(2) Governmental benefits means financial aid or services from a state, federal, or other public agency.

(3) Special-needs fiduciary means, with respect to a trust that has a beneficiary with a disability:

(A) a trustee or other fiduciary, other than a settlor, that has discretion to distribute part or all of the principal of a first trust to one or more current beneficiaries;

(B) if no trustee or fiduciary has discretion under subdivision (3)(A) of this subsection, a trustee or other fiduciary, other than a settlor, that has discretion to distribute part or all of the income of the first trust to one or more current beneficiaries; or

(C) if no trustee or fiduciary has discretion under subdivisions (3)(A) and (B) of this subsection, a trustee or other fiduciary, other than a settlor, that is required to distribute part or all of the income or principal of the first trust to one or more current beneficiaries.

(4) Special-needs trust means a trust the trustee believes would not be considered a resource for purposes of determining whether a beneficiary with a disability is eligible for governmental benefits.

(b) A special-needs fiduciary may exercise the decanting power under section 30-4511 over the principal of a first trust as if the fiduciary had authority to distribute principal to a beneficiary with a disability subject to expanded distributive discretion if:

(1) a second trust is a special-needs trust that benefits the beneficiary with a disability; and

(2) the special-needs fiduciary determines that exercise of the decanting power will further the purposes of the first trust.

(1) Notwithstanding subdivision (c)(2) of section 30-4511, the interest in the second trust of a beneficiary with a disability may:

(A) be a pooled trust as defined by medicaid law for the benefit of the beneficiary with a disability under 42 U.S.C. 1396p(d)(4)(C), as such section existed on November 14, 2020; or

(B) contain payback provisions complying with reimbursement requirements of medicaid law under 42 U.S.C. 1396p(d)(4)(A), as such section existed on November 14, 2020.

(2) Subdivision (c)(3) of section 30-4511 does not apply to the interests of the beneficiary with a disability.

(3) Except as affected by any change to the interests of the beneficiary with a disability, the second trust, or if there are two or more second trusts, the second trusts in the aggregate, must grant each other beneficiary of the first trust beneficial interests in the second trusts which are substantially similar to the beneficiary's beneficial interests in the first trust.

Source:Laws 2020, LB808, § 23.

30-4514. Protection of charitable interest.

(a) In this section:

(1) Determinable charitable interest means a charitable interest that is a right to a mandatory distribution currently, periodically, on the occurrence of a specified event, or after the passage of a specified time and which is unconditional or will be held solely for charitable purposes.

(2) Unconditional means not subject to the occurrence of a specified event that is not certain to occur, other than a requirement in a trust instrument that a charitable organization be in existence or qualify under a particular provision of the Internal Revenue Code of 1986, as amended, on the date of the distribution, if the charitable organization meets the requirement on the date of determination.

(b) If a first trust contains a determinable charitable interest, the Attorney General has the rights of a qualified beneficiary and may represent and bind the charitable interest.

(1) diminish the charitable interest;

(2) diminish the interest of an identified charitable organization that holds the charitable interest;

(3) alter any charitable purpose stated in the first-trust instrument; or

(4) alter any condition or restriction related to the charitable interest.

(d) If there are two or more second trusts, the second trusts shall be treated as one trust for purposes of determining whether the exercise of the decanting power diminishes the charitable interest or diminishes the interest of an identified charitable organization for purposes of subsection (c) of this section.

(e) If a first trust contains a determinable charitable interest, the second trust or trusts that include a charitable interest pursuant to subsection (c) of this section must be administered under the law of this state unless:

(1) the Attorney General, after receiving notice under section 30-4507, fails to object in a signed record delivered to the authorized fiduciary within the notice period;

(2) the Attorney General consents in a signed record to the second trust or trusts being administered under the law of another jurisdiction; or

(3) the court approves the exercise of the decanting power.

(f) The Uniform Trust Decanting Act does not limit the powers and duties of the Attorney General under law of this state other than the act.

Source:Laws 2020, LB808, § 24.

30-4515. Trust limitation on decanting.

(a) An authorized fiduciary may not exercise the decanting power to the extent the first-trust instrument expressly prohibits exercise of:

(1) the decanting power; or

(2) a power granted by state law to the fiduciary to distribute part or all of the principal of the trust to another trust or to modify the trust.

(b) Exercise of the decanting power is subject to any restriction in the first-trust instrument that expressly applies to exercise of:

(1) the decanting power; or

(2) a power granted by state law to a fiduciary to distribute part or all of the principal of the trust to another trust or to modify the trust.

(c)(1) An authorized fiduciary who is a current beneficiary of the first trust or a beneficiary to which the net income or principal of the first trust would be distributed if the first trust were terminated may not exercise the decanting power under the Uniform Trust Decanting Act in a manner to eliminate or restrict a spendthrift clause or a clause restraining the voluntary or involuntary transfer of a beneficiary's interest in the first trust.

(2) Subject to subdivision (c)(1) of this section, a general prohibition of the amendment or revocation of a first trust, a spendthrift clause, or a clause restraining the voluntary or involuntary transfer of a beneficiary's interest does not preclude exercise of the decanting power.

(d) Subject to subsections (a) and (b) of this section, an authorized fiduciary may exercise the decanting power under the Uniform Trust Decanting Act even if the first-trust instrument permits the authorized fiduciary or another person to modify the first-trust instrument or to distribute part or all of the principal of the first trust to another trust.

(e) If a first-trust instrument contains an express prohibition described in subsection (a) of this section or an express restriction described in subsection (b) of this section, the provision must be included in the second-trust instrument.

Source:Laws 2020, LB808, § 25.

30-4516. Change in compensation.

(a) If a first-trust instrument specifies an authorized fiduciary's compensation, the fiduciary may not exercise the decanting power to increase the fiduciary's compensation above the specified compensation unless:

(1) all qualified beneficiaries of the second trust consent to the increase in a signed record; or

(2) the increase is approved by the court.

(b) If a first-trust instrument does not specify an authorized fiduciary's compensation, the fiduciary may not exercise the decanting power to increase the fiduciary's compensation above the compensation permitted by the Nebraska Uniform Trust Code unless:

(1) all qualified beneficiaries of the second trust consent to the increase in a signed record; or

(2) the increase is approved by the court.

(c) A change in an authorized fiduciary's compensation which is incidental to other changes made by the exercise of the decanting power is not an increase in the fiduciary's compensation for purposes of subsections (a) and (b) of this section.

Source:Laws 2020, LB808, § 26.

Cross References

Nebraska Uniform Trust Code, see section 30-3801.

30-4517. Relief from liability and indemnification.

(a) Except as otherwise provided in this section, a second-trust instrument may not relieve an authorized fiduciary from liability for breach of trust to a greater extent than the first-trust instrument.

(b) A second-trust instrument may provide for indemnification of an authorized fiduciary of the first trust or another person acting in a fiduciary capacity under the first trust for any liability or claim that would have been payable from the first trust if the decanting power had not been exercised.

(d) Subject to subsection (c) of this section, a second-trust instrument may divide and reallocate fiduciary powers among fiduciaries, including one or more trustees, distribution advisors, investment advisors, trust protectors, or other persons, and relieve a fiduciary from liability for an act or failure to act of another fiduciary as permitted by law of this state other than the Uniform Trust Decanting Act.

Source:Laws 2020, LB808, § 27.

30-4518. Removal or replacement of authorized fiduciary.

An authorized fiduciary may not exercise the decanting power to modify a provision in a first-trust instrument granting another person power to remove or replace the fiduciary unless:

(1) the person holding the power consents to the modification in a signed record and the modification applies only to the person;

(2) the person holding the power and the qualified beneficiaries of the second trust consent to the modification in a signed record and the modification grants a substantially similar power to another person; or

(3) the court approves the modification and the modification grants a substantially similar power to another person.

Source:Laws 2020, LB808, § 28.

30-4519. Tax-related limitations.

(a) In this section:

(1) Grantor trust means a trust as to which a settlor of a first trust is considered the owner under 26 U.S.C. 671 to 677 or 26 U.S.C. 679, as such sections existed on November 14, 2020.

(2) Internal Revenue Code means the Internal Revenue Code of 1986, as amended.

(3) Nongrantor trust means a trust that is not a grantor trust.

(4) Qualified benefits property means property subject to the minimum distribution requirements of 26 U.S.C. 401(a)(9) and any applicable regulations, or to any similar requirements that refer to 26 U.S.C. 401(a)(9) or the regulations, as such section and regulations existed on November 14, 2020.

(b) An exercise of the decanting power is subject to the following limitations:

(1) If a first trust contains property that qualified, or would have qualified but for provisions of the Uniform Trust Decanting Act other than this section, for a marital deduction for purposes of the gift or estate tax under the Internal Revenue Code or a state gift, estate, or inheritance tax, the second-trust instrument must not include or omit any term that, if included in or omitted from the trust instrument for the trust to which the property was transferred, would have prevented the transfer from qualifying for the deduction, or would have reduced the amount of the deduction, under the same provisions of the Internal Revenue Code or state law under which the transfer qualified.

(2) If the first trust contains property that qualified, or would have qualified but for provisions of the Uniform Trust Decanting Act other than this section, for a charitable deduction for purposes of the income, gift, or estate tax under the Internal Revenue Code or a state income, gift, estate, or inheritance tax, the second-trust instrument must not include or omit any term that, if included in or omitted from the trust instrument for the trust to which the property was transferred, would have prevented the transfer from qualifying for the deduction, or would have reduced the amount of the deduction, under the same provisions of the Internal Revenue Code or state law under which the transfer qualified.

(3) If the first trust contains property that qualified, or would have qualified but for provisions of the Uniform Trust Decanting Act other than this section, for the exclusion from the gift tax described in 26 U.S.C. 2503(b), as such section existed on November 14, 2020, the second-trust instrument must not include or omit a term that, if included in or omitted from the trust instrument for the trust to which the property was transferred, would have prevented the transfer from qualifying under 26 U.S.C. 2503(b), as such section existed on November 14, 2020. If the first trust contains property that qualified, or would have qualified but for provisions of the Uniform Trust Decanting Act other than this section, for the exclusion from the gift tax described in 26 U.S.C. 2503(b), as such section existed on November 14, 2020, by application of 26 U.S.C. 2503(c), as such section existed on November 14, 2020, the second-trust instrument must not include or omit a term that, if included or omitted from the trust instrument for the trust to which the property was transferred, would have prevented the transfer from qualifying under 26 U.S.C. 2503(c), as such section existed on November 14, 2020.

(4) If the property of the first trust includes shares of stock in an S corporation, as defined in 26 U.S.C. 1361, as such section existed on November 14, 2020, and the first trust is, or but for provisions of the Uniform Trust Decanting Act other than this section would be, a permitted shareholder under any provision of 26 U.S.C. 1361, as such section existed on November 14, 2020, an authorized fiduciary may exercise the power with respect to part or all of the S-corporation stock only if any second trust receiving the stock is a permitted shareholder under 26 U.S.C. 1361(c)(2), as such section existed on November 14, 2020. If the property of the first trust includes shares of stock in an S corporation and the first trust is, or but for provisions of the Uniform Trust Decanting Act other than this section would be, a qualified subchapter-S trust within the meaning of 26 U.S.C. 1361(d), as such section existed on November 14, 2020, the second-trust instrument must not include or omit a term that prevents the second trust from qualifying as a qualified subchapter-S trust.

(5) If the first trust contains property that qualified, or would have qualified but for provisions of the Uniform Trust Decanting Act other than this section, for a zero inclusion ratio for purposes of the generation-skipping transfer tax under 26 U.S.C. 2642(c), as such section existed on November 14, 2020, the second-trust instrument must not include or omit a term that, if included in or omitted from the first-trust instrument, would have prevented the transfer to the first trust from qualifying for a zero inclusion ratio under 26 U.S.C. 2642(c), as such section existed on November 14, 2020.

(6) If the first trust is directly or indirectly the beneficiary of qualified benefits property, the second-trust instrument may not include or omit any term that, if included in or omitted from the first-trust instrument, would have increased the minimum distributions required with respect to the qualified benefits property under 26 U.S.C. 401(a)(9), as such section existed on November 14, 2020, and any applicable regulations, or any similar requirements that refer to 26 U.S.C. 401(a)(9), as such section existed on November 14, 2020, or the regulations. If an attempted exercise of the decanting power violates the preceding sentence, the trustee is deemed to have held the qualified benefits property and any reinvested distributions of the property as a separate share from the date of the exercise of the power and section 30-4522 applies to the separate share.

(7) If the first trust qualifies as a grantor trust because of the application of 26 U.S.C. 672(f)(2)(A), as such section existed on November 14, 2020, the second trust may not include or omit a term that, if included in or omitted from the first-trust instrument, would have prevented the first trust from qualifying under 26 U.S.C. 672(f)(2)(A), as such section existed on November 14, 2020.

(8) In this subdivision, tax benefit means a federal or state tax deduction, exemption, exclusion, or other benefit not otherwise listed in this section, except for a benefit arising from being a grantor trust. Subject to subdivision (9) of this subsection, a second-trust instrument may not include or omit a term that, if included in or omitted from the first-trust instrument, would have prevented qualification for a tax benefit if:

(A) the first-trust instrument expressly indicates an intent to qualify for the benefit or the first-trust instrument clearly is designed to enable the first trust to qualify for the benefit; and

(B) the transfer of property held by the first trust or the first trust qualified, or but for provisions of the Uniform Trust Decanting Act other than this section, would have qualified for the tax benefit.

(9) Subject to subdivision (4) of this subsection:

(A) except as otherwise provided in subdivision (7) of this subsection, the second trust may be a nongrantor trust, even if the first trust is a grantor trust; and

(B) except as otherwise provided in subdivision (10) of this subsection, the second trust may be a grantor trust, even if the first trust is a nongrantor trust.

(10) An authorized fiduciary may not exercise the decanting power if a settlor objects in a signed record delivered to the fiduciary within the notice period and:

(A) the first trust and a second trust are both grantor trusts, in whole or in part, the first trust grants the settlor or another person the power to cause the first trust to cease to be a grantor trust, and the second trust does not grant an equivalent power to the settlor or other person; or

(B) the first trust is a nongrantor trust and a second trust is a grantor trust, in whole or in part, with respect to the settlor, unless:

(i) the settlor has the power at all times to cause the second trust to cease to be a grantor trust; or

(ii) the first-trust instrument contains a provision granting the settlor or another person a power that would cause the first trust to cease to be a grantor trust and the second-trust instrument contains the same provision.

Source:Laws 2020, LB808, § 29.

30-4520. Duration of second trust.

(a) Subject to subsection (b) of this section, a second trust may have a duration that is the same as or different from the duration of the first trust.

(b) To the extent that property of a second trust is attributable to property of the first trust, the property of the second trust is subject to any rules governing maximum perpetuity, accumulation, or suspension of the power of alienation which apply to property of the first trust.

Source:Laws 2020, LB808, § 30.

30-4521. Need to distribute not required.

An authorized fiduciary may exercise the decanting power whether or not under the first trust's discretionary distribution standard the fiduciary would have made or could have been compelled to make a discretionary distribution of principal at the time of the exercise.

Source:Laws 2020, LB808, § 31.

30-4522. Saving provision.

(a) If exercise of the decanting power would be effective under the Uniform Trust Decanting Act except that the second-trust instrument in part does not comply with the act, the exercise of the power is effective and the following rules apply with respect to the principal of the second trust attributable to the exercise of the power:

(1) A provision in the second-trust instrument which is not permitted under the act is void to the extent necessary to comply with the act.

(2) A provision required by the act to be in the second-trust instrument which is not contained in the instrument is deemed to be included in the instrument to the extent necessary to comply with the act.

(b) If a trustee or other fiduciary of a second trust determines that subsection (a) of this section applies to a prior exercise of the decanting power, the fiduciary shall take corrective action consistent with the fiduciary's duties.

Source:Laws 2020, LB808, § 32.

30-4523. Trust for care of animal.

(a) In this section:

(1) Animal trust means a trust or an interest in a trust created to provide for the care of one or more animals.

(2) Protector means a person appointed in an animal trust to enforce the trust on behalf of the animal or, if no such person is appointed in the trust, a person appointed by the court for that purpose.

(b) The decanting power may be exercised over an animal trust that has a protector to the extent the trust could be decanted under the Uniform Trust Decanting Act if each animal that benefits from the trust were an individual, if the protector consents in a signed record to the exercise of the power.

(d) Notwithstanding any other provision of the act, if a first trust is an animal trust, in an exercise of the decanting power, the second trust must provide that trust property may be applied only to its intended purpose for the period the first trust benefited the animal.

Source:Laws 2020, LB808, § 33.

30-4524. Terms of second trust.

A reference in the Nebraska Uniform Trust Code to a trust instrument or terms of the trust includes a second-trust instrument and the terms of the second trust.

Source:Laws 2020, LB808, § 34.

Cross References

Nebraska Uniform Trust Code, see section 30-3801.

30-4525. Settlor.

(a) For purposes of law of this state other than the Uniform Trust Decanting Act and subject to subsection (b) of this section, a settlor of a first trust is deemed to be the settlor of the second trust with respect to the portion of the principal of the first trust subject to the exercise of the decanting power.

(b) In determining settlor intent with respect to a second trust, the intent of a settlor of the first trust, a settlor of the second trust, and the authorized fiduciary may be considered.

Source:Laws 2020, LB808, § 35.

30-4526. Later-discovered property.

(a) Except as otherwise provided in subsection (c) of this section, if exercise of the decanting power was intended to distribute all the principal of the first trust to one or more second trusts, later-discovered property belonging to the first trust and property paid to or acquired by the first trust after the exercise of the power is part of the trust estate of the second trust or trusts.

(b) Except as otherwise provided in subsection (c) of this section, if exercise of the decanting power was intended to distribute less than all the principal of the first trust to one or more second trusts, later-discovered property belonging to the first trust or property paid to or acquired by the first trust after exercise of the power remains part of the trust estate of the first trust.

(c) An authorized fiduciary may provide in an exercise of the decanting power or by the terms of a second trust for disposition of later-discovered property belonging to the first trust or property paid to or acquired by the first trust after exercise of the power.

Source:Laws 2020, LB808, § 36.

30-4527. Obligations.

A debt, liability, or other obligation enforceable against property of a first trust is enforceable to the same extent against the property when held by the second trust after exercise of the decanting power.

Source:Laws 2020, LB808, § 37.

30-4528. Uniformity of application and construction.

In applying and construing the Uniform Trust Decanting Act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

Source:Laws 2020, LB808, § 38.

30-4529. Relation to federal Electronic Signatures in Global and National Commerce Act.

The Uniform Trust Decanting Act modifies, limits, or supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001 et seq., but does not modify, limit, or supersede section 101(c) of that act, 15 U.S.C. 7001(c), or authorize electronic delivery of any of the notices described in section 103(b) of that act, 15 U.S.C. 7003(b), as such sections existed on November 14, 2020.

Source:Laws 2020, LB808, § 39.

30-4601. Short title.

Sections 30-4601 to 30-4638 shall be known and may be cited as the Uniform Powers of Appointment Act.

Source:Laws 2021, LB501, § 24.

30-4602. Definitions.

In the Uniform Powers of Appointment Act:

(1) Appointee means a person to which a powerholder makes an appointment of appointive property.

(2) Appointive property means the property or property interest subject to a power of appointment.

(3) Blanket exercise clause means a clause in an instrument which exercises a power of appointment and is not a specific exercise clause. The term includes a clause that:

(A) expressly uses the words "any power" in exercising any power of appointment the powerholder has;

(B) expressly uses the words "any property" in appointing any property over which the powerholder has a power of appointment; or

(4) Donor means a person that creates a power of appointment.

(5) Exclusionary power of appointment means a power of appointment exercisable in favor of any one or more of the permissible appointees to the exclusion of the other permissible appointees.

(6) General power of appointment means a power of appointment exercisable in favor of the powerholder, the powerholder's estate, a creditor of the powerholder, or a creditor of the powerholder's estate.

(7) Gift in default clause means a clause identifying a taker in default of appointment.

(8) Impermissible appointee means a person that is not a permissible appointee.

(9) Instrument means a record.

(10) Nongeneral power of appointment means a power of appointment that is not a general power of appointment.

(11) Permissible appointee means a person in whose favor a powerholder may exercise a power of appointment.

(12) Person means an individual, estate, trust, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity.

(13) Power of appointment means a power that enables a powerholder acting in a nonfiduciary capacity to designate a recipient of an ownership interest in or another power of appointment over the appointive property. The term does not include a power of attorney.

(14) Powerholder means a person in which a donor creates a power of appointment.

(15) Presently exercisable power of appointment means a power of appointment exercisable by the powerholder at the relevant time. The term:

(A) includes a power of appointment not exercisable until the occurrence of a specified event, the satisfaction of an ascertainable standard, or the passage of a specified time only after:

(i) the occurrence of the specified event;

(ii) the satisfaction of the ascertainable standard; or

(iii) the passage of the specified time; and

(B) does not include a power exercisable only at the powerholder's death.

(16) Record means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(17) Specific exercise clause means a clause in an instrument which specifically refers to and exercises a particular power of appointment.

(18) Taker in default of appointment means a person that takes all or part of the appointive property to the extent the powerholder does not effectively exercise the power of appointment.

(19) Terms of the instrument means the manifestation of the intent of the maker of the instrument regarding the instrument's provisions as expressed in the instrument or as may be established by other evidence that would be admissible in a legal proceeding.

Source:Laws 2021, LB501, § 25.

Witnessed By:
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(Signature of Witness/Date)		(Printed Name of Witness)
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(Signature of Witness/Date)		(Printed Name of Witness)
OR

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Your Signature	Date
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Your Name Printed
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Your Address
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Your Telephone Number
State of .................................
[County] of ..............................
This document was acknowledged before me on	................ ,
	(Date)
by .................................... .
(Name of Principal)
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Signature of Notary
My commission expires: ..................
[This document prepared by:
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Agent's Signature	Date
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Agent's Name Printed
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Agent's Address
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Agent's Telephone Number
This document was acknowledged before me on	............... ,
	(Date)
by ..................................... .
(Name of Agent)
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Signature of Notary
My commission expires: ...................
This document prepared by:
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(Date of expiration of directive)	(Signature of Principal)
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	(Printed Name of Principal)
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	(Date signed)

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(Signature of Witness)	(Signature of Witness)
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(Printed Name of Witness)	(Printed Name of Witness)
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(Date)	(Date)

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	(Signature of health care professional)
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	(Printed Name of health care professional)
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	(Date)