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.

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).

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.

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.

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).

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.

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).

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.

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).

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.

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.

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.

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).

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.

(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.

(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.

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).

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.

(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;

(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.

(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.

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).

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.

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:

(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:

(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.

(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.

(a) In an informal proceeding for original probate of a will, the registrar shall determine whether:

(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;

(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.

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.

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.

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).

(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.

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).

(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);

(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;

(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.

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.

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.

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.

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.

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).

(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:

(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.

(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.

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).

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.

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.

(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.

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).

(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.

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).

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.

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).

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.

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).

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.

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.

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.

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.

(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.

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).

For good cause shown, an order in a formal testacy proceeding may be modified or vacated within the time allowed for appeal.

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).

(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.

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).

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.

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.