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.
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).