In re Estate of Larson , 311 Neb. 352 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/22/2022 09:07 AM CDT
- 352 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
IN RE ESTATE OF LARSON
Cite as 311 Neb. 352Cindy Svoboda, Personal Representative of
the Estate of Blain Larson, appellee,
v. Matthew Larson, appellant.
___ N.W.2d ___
Filed April 15, 2022. No. S-21-290.
1. Guardians and Conservators: Judgments: Appeal and Error. Appeals
of matters arising under the Nebraska Probate Code are reviewed for
error on the record. When reviewing a judgment for errors on the
record, the inquiry is whether the decision conforms to the law, is
supported by competent evidence, and is neither arbitrary, capricious,
nor unreasonable.
2. Decedents’ Estates: Attorney Fees. Ordinarily, the fixing of reasonable
compensation, fees, and expenses, pursuant to Neb. Rev. Stat. § 30-2480(Reissue 2016), governing compensation of personal representatives;
Neb. Rev. Stat. § 30-2481 (Reissue 2016), governing expenses in estate
litigation; and Neb. Rev. Stat. § 30-2482 (Reissue 2016), governing
compensation of personal representatives and employees of the estate, is
within the sound discretion of the county court.
3. Statutes: Appeal and Error. Statutory interpretation is a question of
law, which an appellate court resolves independently of the trial court.
4. Wills: Trusts. The interpretation of the words in a will or a trust pre­
sents a question of law.
5. Judgments: Appeal and Error. In instances when an appellate court is
required to review cases for error appearing on the record, questions of
law are nonetheless reviewed de novo on the record.
6. Decedents’ Estates: Taxation. The inheritance tax is a tax on the bene­
ficiary, not the decedent.
7. Decedents’ Estates: Taxation: Wills. The burden of inheritance taxes
will be imposed upon the individual beneficiaries of the decedent
in accordance with the statutory pattern unless there is a clear and
unambiguous direction to the contrary in the will or other govern-
ing instrument.
- 353 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
IN RE ESTATE OF LARSON
Cite as 311 Neb. 3528. Decedents’ Estates: Taxation. Generally, the fiduciary charged with
distributing a decedent’s property deducts the inheritance taxes from any
property distributed or collects the tax from the legatee or the person
entitled to such property.
9. Decedents’ Estates: Taxation: Wills: Intent. A testator who wants to
shift the burden of the inheritance tax may employ any word or combi-
nation of words that the testator desires, and a few simple words might
be enough to show his or her intent. But the direction in the will must
be clear and unambiguous in order to supplant the statutory pattern. Any
ambiguities are resolved in favor of the statutory pattern.
10. Decedents’ Estates: Taxation: Wills. Where a will directs that taxes be
paid out of the residuary estate but there is no residuary estate—that is,
nothing is left over and above preresiduary legacies and devises after
paying debts and funeral and administration expenses—the ordinary
result is that the direction must fail; and the burden of the taxes falls
where the law places such burden in the absence of a tax clause, unless
the testator has made provision for such a contingency.
11. Decedents’ Estates: Actions: Attorney Fees. If any personal represent­
ative or person nominated as personal representative defends or pros-
ecutes any proceeding in good faith, whether successful or not, he or she
is entitled to receive from the estate his or her necessary expenses and
disbursements, including reasonable attorney fees incurred.
12. ____: ____: ____. A person seeking to recover fees under Neb. Rev.
Stat. § 30-2481 (Reissue 2016) must first establish good faith, and then
prove (1) that the claimed expenses and disbursements were necessary
and (2) that the attorney fees were necessary and reasonable.
13. ____: ____: ____. The good faith required in Neb. Rev. Stat. § 30-2481(Reissue 2016) is an ultimate fact for the court’s decision upon all of
the evidence.
14. Decedents’ Estates: Words and Phrases. There are no rules defining
good faith; rather, it depends upon the peculiar facts and circumstances
existing in each case, including the duties imposed upon him or her
by law.
15. Decedents’ Estates: Costs: Attorney Fees: Words and Phrases. Good
faith, for the purpose of Neb. Rev. Stat. § 30-2481 (Reissue 2016), is
honesty in fact concerning conduct or a transaction.
Appeal from the County Court for Colfax County: Andrew
R. Lange, Judge. Affirmed in part, and in part reversed and
remanded with directions.
- 354 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
IN RE ESTATE OF LARSON
Cite as 311 Neb. 352Jared J. Krejci, of Smith, Johnson, Allen, Connick & Hansen,
for appellant.
Jeffery T. Peetz and Blake K. Simpson, of Endacott, Peetz,
Timmer & Koerwitz, P.C., L.L.O., for appellee.
Miller-Lerman, Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ., and Piccolo, District Judge.
Funke, J.
INTRODUCTION
The county court for Colfax County, Nebraska, approved the
schedule of distribution for the estate of Blain Larson, filed by
Blain’s personal representative. The court overruled the objec-
tions of a devisee, and the devisee appeals. We conclude that
the court erred in charging inheritance tax to the estate. The
appeal is otherwise without merit. We therefore affirm in part,
and in part reverse and remand with directions.
BACKGROUND
Will
Blain’s will nominated Cindy Svoboda (Cindy) as personal
representative. Cindy and Blain cohabitated from 2008 until
Blain died on February 19, 2017, at age 63. The will devised to
Cindy one-half of Blain’s livestock and one-half of the owner-
ship of his pharmacy business. To Matthew Larson, Blain’s son
from a former marriage, the will devised one-half of the live-
stock, one-half of the pharmacy business, a pontoon, a fishing
boat, sport utility vehicles, and certain personal property. The
will devised the residue of his estate to Cindy. There was no
devise for Blain’s daughter, Amber Fixemer (Amber).
Of central relevance, Blain’s will contained the follow-
ing provision concerning the payment of debts and estate
expenses:
My Personal Representative shall pay from the residue
of my estate all my debts, funeral expenses, administra-
tion expenses and all estate, inheritance, succession and
- 355 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
IN RE ESTATE OF LARSON
Cite as 311 Neb. 352transfer taxes imposed by the United States or any state,
territory or possession which shall become payable by
reason of my death. It shall not be necessary to file any
claims therefor, nor to have them allowed by any court.
Will Contest
In March 2017, Cindy initiated informal probate proceed-
ings in the county court and was appointed Blain’s personal
representative. Matthew and Amber subsequently filed a peti-
tion to prevent informal probate, seeking an order that Blain
died intestate based on the allegations that he lacked sufficient
capacity to execute his will and that the will was invalid due
to undue influence, fraud, and duress. Cindy denied the alle-
gations. The matter moved to district court, where the court
entered judgment on a jury verdict in favor of Cindy. In addi-
tion, the court found Matthew and Amber had filed their appeal
“‘vexatiously or for delay’” and consequently awarded Cindy
$2,871.70 in costs.
Matthew’s Objection
The matter returned to county court, where Cindy filed a
formal petition for complete settlement after the informal tes-
tate proceeding, along with a schedule of distribution. Pursuant
to Neb. Rev. Stat. §§ 30-2480 and 30-2481 (Reissue 2016), the
petition sought approval of Cindy’s final accounting and the
fees and expenses she had incurred as personal representative.
Cindy’s petition specifically requested “[a]pproving distribu-
tions previously made and authorizing and directing [Cindy]
to distribute the assets and the Final Accounting of the Estate
to the Distributees in accordance with the annexed Schedule
of Distribution.”
Cindy’s schedule of distribution allotted to Matthew a half
interest in the proceeds from the sale of pharmacy stock, 26
cows, recreational vehicles, personal property, and taxes. To
Cindy, the schedule allotted a half interest in the proceeds
from the sale of pharmacy stock, 26 cows, taxes, and the bal-
ance of the residuary estate after payment of taxes, debts, and
- 356 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
IN RE ESTATE OF LARSON
Cite as 311 Neb. 352administration expenses. Some estate items had already been
distributed in kind. Cindy’s tentative inheritance tax totaled
$224,249, whereas Matthew’s totaled $7,190.
Cindy’s final accounting showed that $545,029.98 remained
in the estate account after payment of tentative inheritance
taxes and administration expenses, including attorney fees
incurred in defending the will contest, property taxes, and
half the cost of a headstone. The court refunded $16,387 for
overpayment of inheritance taxes and assessed inheritance
taxes due in the amount of $208,758 against Cindy and $6,294
against Matthew.
On March 6, 2020, pursuant to Neb. Rev. Stat. § 30-24,104(b)
(Reissue 2016), Matthew filed an objection to Cindy’s proposal
for distribution, alleging that she failed to properly appor-
tion inheritance taxes once the residue had been exhausted
and that each beneficiary should be responsible for his or her
own inheritance tax. Matthew further alleged that Cindy, as
personal representative, incurred unnecessary and unreason-
able expenses and that estate funds should not be used to pay
Cindy’s attorney fees.
Hearing
At a hearing on Matthew’s objection, the court heard evi-
dence regarding attorney fees Cindy incurred as personal
representative while defending the will contest. Cindy testi-
fied that she defended the will to carry out Blain’s wishes and
denied that her primary purpose was to enhance her prospects
of compensation under the will or that her efforts had that
effect. She denied defending the will to amass personal rep-
resentative fees, stating that she attempted resolutions through
mediation and summary judgment. Cindy did admit that in
the event she lost the will contest, she would not inherit any
probate assets.
The county court received affidavits from Cindy’s counsel
and independent local counsel regarding the attorney fees
paid by the estate. An affidavit from one of Cindy’s attor-
neys provided a detailed list of charges, while the other two
- 357 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
IN RE ESTATE OF LARSON
Cite as 311 Neb. 352attorneys stated that the attorney fees incurred in defending
the will contest were reasonable and necessary considering the
various legal issues raised.
Matthew disputed Cindy’s use of estate funds to pay real
estate taxes. Cindy testified she used funds from the estate
account to pay half of the real estate taxes on the house she
owned jointly with Blain until his death. Cindy explained that
the real estate taxes she paid were for 2016, when Blain was
alive, and that paying the real estate taxes kept the property
clear of any liens. Cindy considered this part of her duty as
personal representative to preserve the property and avoid
incurring additional expenses.
Matthew contested Cindy’s use of estate funds to purchase a
headstone for Blain. Cindy testified that in July 2017, Blain’s
mother was concerned that there was no headstone marking
Blain’s grave. As a result, Cindy ordered a headstone in August
2017, using estate funds to pay half the cost. In January 2018,
Cindy learned that Matthew and Amber had also purchased a
headstone, but did not present the estate with a bill. The head-
stone purchased by Matthew and Amber was ultimately placed
on Blain’s grave, and the headstone purchased by Cindy was
placed on her adjacent plot. Cindy testified that based upon
Neb. Rev. Stat. § 30-2223 (Reissue 2016), she understood that
a personal representative may use estate funds to pay for a
headstone, such as the one she purchased. Cindy testified that
Matthew and Amber did not timely exercise their rights as to
payment of the headstone.
Court Order
In April 2020, the court entered an order dismissing
Matthew’s objection to Cindy’s proposal for distribution. The
court determined that the attorney fees Cindy incurred as per-
sonal representative were for the primary purpose of defend-
ing Blain’s will. The court found no evidence that Cindy did
not defend the will in good faith. The court reasoned that the
fact that Cindy would receive a greater share of the probate
- 358 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
IN RE ESTATE OF LARSON
Cite as 311 Neb. 352assets did not indicate a lack of good faith. Based on the
affidavits from counsel, the court found the attorney fees and
estate expenses incurred by Cindy as personal representative
were reasonable and necessary.
As to the disputed administration expenses and inheritance
taxes, the court found that the will directed such to be paid
from the residue. However, because Blain’s estate had minimal
residuary value, the court found the apportionment provisions
under Neb. Rev. Stat. § 30-24,100 (Reissue 2016) controlled.
The court determined nonprobate assets were unavailable to
pay inheritance taxes, because Matthew had not made a timely
demand upon the personal representative under Neb. Rev.
Stat. § 30-24,120 (Reissue 2016). The court determined that
under § 30-24,100, “the inheritance taxes should be paid from
the estate and to the extent the residuary estate is unavailable
for payment of these expenses, the specific devisees [sic] in
proportion to the share owned by Cindy . . . and Matthew
. . . should be reduced for such estate expenses and inherit­
ance tax.”
Cindy filed a supplemental final accounting applying the
court’s order, which accounting stated that the parties had
agreed to apportion administration expenses, funeral expenses,
debts, taxes, and claims of 49.4 percent to Cindy and 50.6
percent to Matthew. Deducting for proportionate shares,
the accounting set forth the final distribution to Matthew
and Cindy.
Matthew appeals. We granted Matthew’s request for bypass.
ASSIGNMENTS OF ERROR
Matthew assigns, summarized and restated, that the county
court erred in (1) charging inheritance taxes to the estate, (2)
charging real estate taxes to the estate, (3) charging attorney
fees incurred by the personal representative to the estate, (4)
charging a headstone to the estate, (5) misapplying the rules
of abatement and apportionment, and (6) determining that
§ 30-24,120 applied to the case.
- 359 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
IN RE ESTATE OF LARSON
Cite as 311 Neb. 352STANDARD OF REVIEW
[1] Appeals of matters arising under the Nebraska Probate
Code are reviewed for error on the record. 1 When reviewing
a judgment for errors on the record, the inquiry is whether the
decision conforms to the law, is supported by competent evi-
dence, and is neither arbitrary, capricious, nor unreasonable. 2
[2] Ordinarily, the fixing of reasonable compensation, fees,
and expenses, pursuant to § 30-2480, governing compensation
of personal representatives; § 30-2481, governing expenses
in estate litigation; and Neb. Rev. Stat. § 30-2482 (Reissue
2016), governing compensation of personal representatives and
employees of the estate, is within the sound discretion of the
county court. 3
[3] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court. 4
[4,5] The interpretation of the words in a will or a trust
presents a question of law. 5 In instances when an appellate
court is required to review cases for error appearing on the
record, questions of law are nonetheless reviewed de novo on
the record. 6
ANALYSIS
Inheritance Taxes
The first issue for determination is whether inheritance taxes
may be charged to the estate, where the will directs that inherit­
ance taxes be charged to the residue, but the residue lacks
­sufficient assets. This is a novel issue under Nebraska law.
1
In re Estate of Hutton, 306 Neb. 579, 946 N.W.2d 669 (2020).
2
Id.3
Id.; In re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 (2018); In re
Estate of Odineal, 220 Neb. 168, 368 N.W.2d 800 (1985).
4
In re Estate of Hutton, supra note 1.
5
In re Estate of Akerson, 309 Neb. 470, 960 N.W.2d 719 (2021).
6
In re Trust Created by McGregor, 308 Neb. 405, 954 N.W.2d 612 (2021).
- 360 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
IN RE ESTATE OF LARSON
Cite as 311 Neb. 352[6-8] Chapter 77, article 20, of the Nebraska Revised Statutes
imposes inheritance taxes on a beneficiary’s distribution based
on the beneficiary’s relationship to the decedent. 7 The inherit­
ance tax is a tax on the beneficiary, not the decedent. 8 The bur-
den of inheritance taxes will be imposed upon the individual
beneficiaries of the decedent in accordance with the statutory
pattern unless there is a clear and unambiguous direction to the
contrary in the will or other governing instrument. 9 Generally,
the fiduciary charged with distributing a decedent’s property
deducts the inheritance taxes from any property distributed
or collects the tax from the legatee or the person entitled to
such property. 10
[9] A testator who wants to shift the burden of the inherit­
ance tax may employ any word or combination of words that
the testator desires, and a few simple words might be enough
to show his or her intent. 11 But the direction in the will must
be clear and unambiguous in order to supplant the statutory
pattern. 12 Any ambiguities are resolved in favor of the statu-
tory pattern. 13
Recall the relevant language found in Blain’s will: “My
Personal Representative shall pay from the residue of my
estate all my debts, funeral expenses, administration expenses
and all estate, inheritance, succession and transfer taxes . . .
which shall become payable by reason of my death.” (Empha­
sis supplied.)
7
Neb. Rev. Stat. §§ 77-2004 and 77-2005 (Reissue 2018); In re Estate of
Shell, 290 Neb. 791, 862 N.W.2d 276 (2015), citing Nielsen v. Sidner, 191
Neb. 324, 215 N.W.2d 86 (1974).
8
In re Estate of Shell, supra note 7.
9
Nielsen v. Sidner, supra note 7.
10
See Neb. Rev. Stat. § 77-2011 (Reissue 2018).
11
In re Estate of Shell, supra note 7.
12
Id.; 42 Am. Jur. 2d Inheritance, Estate, and Gift Taxes § 157 (2020).
13
Id.
- 361 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
IN RE ESTATE OF LARSON
Cite as 311 Neb. 352Here, the parties do not dispute that Blain’s will displaced
the default statutory rule which places the inheritance tax bur-
den on the individual receiving the bequest. Because the issue
of Blain’s intent as shown by his will is not contested, the next
task is to determine the consequences of the fact that the resi-
due lacked sufficient assets to carry out Blain’s intent.
The county court approved Cindy’s charging of inheritance
taxes to the estate based upon this court’s decision in In re
Estate of Shell. 14 However, In re Estate of Shell is not determi-
native, because the issue in that case was a question of the tes-
tator’s intent, and in this case, Blain’s intent is uncontroverted.
In re Estate of Shell does not address what should result when
the testator’s intent regarding inheritance taxes cannot be car-
ried out due to insufficient assets.
The record shows that the residue of Blain’s estate held min-
imal assets and was depleted through the payment of Blain’s
administrative expenses, funeral expenses, and federal income
taxes. As such, there was insufficient residue to pay the inherit­
ance taxes assessed against Matthew and Cindy.
[10] Where a will directs that taxes be paid out of the residu-
ary estate but there is no residuary estate—that is, nothing is
left over and above preresiduary legacies and devises after
paying debts and funeral and administration expenses—the
ordinary result is that the direction must fail; and the burden of
the taxes falls where the law places such burden in the absence
of a tax clause, unless the testator has made provision for such
a contingency. 15 Thus, each legacy or devise bears its own
inheritance tax, 16 and the administrative expenses and estate
taxes are apportioned under the apportionment statutes. 17
14
In re Estate of Shell, supra note 7.
15
Annot., 69 A.L.R.3d 122 § 43[a] (1976). See, also, First National Bank of
Omaha v. United States, 490 F.2d 1054 (8th Cir. 1974).
16
See § 77-2011.
17
See §§ 77-2004 and 77-2005.
- 362 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
IN RE ESTATE OF LARSON
Cite as 311 Neb. 352In Rosen v. Wells Fargo Bank Texas, N.A., 18 the Texas Court
of Appeals held that consistent with the rule followed by a
majority of states, the lack of a residuary estate negates the
testator’s specific directions for payment of taxes, and that as
a consequence, the statutory default rule controls. 19 The court
reasoned that to hold otherwise would give effect to a provi-
sion in the will that failed of its purpose. 20
We now hold that where a will directs that the inheritance
taxes should be paid out of the residuary estate, but there is no
residuary estate or the residuary estate is insufficient to pay the
inheritance taxes, the direction in the will fails. As such, the
payment of inheritance taxes reverts to the default statutory
rule placing the burden on the individual beneficiaries receiv-
ing the property.
Here, despite the provisions of Blain’s will, the lack of a
residuary estate requires reversion to the default rule. The
court erred by overruling Matthew’s objection in that regard.
The court’s order is in part reversed and the cause is remanded
with directions to require Matthew and Cindy to each pay their
respective inheritance taxes owed in this matter according to
the statutory default rule.
Real Estate Taxes
Matthew argues that like inheritance taxes, real estate taxes
should not have been charged to the estate.
The record sets forth that Blain and Cindy jointly owned
real estate. Following Blain’s death, his one-half share of 2016
real estate taxes were due and owing. The owner of real prop-
erty on December 31 is liable for the taxes assessed and levied
for that calendar year, and that real property tax liability rests
18
Rosen v. Wells Fargo Bank Texas, N.A., 114 S.W.3d 145 (Tex. App. 2003).
19
See id. (citing cases). But see Stickley v. Stickley, 255 Va. 405, 497 S.E.2d
862 (1998).
20
Rosen, supra note 18.
- 363 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
IN RE ESTATE OF LARSON
Cite as 311 Neb. 352with the owner or owners of the real property at the time real
property taxes are charged, accrued, or assessed, i.e., due and
payable. 21 Cindy paid Blain’s half of the real estate taxes from
estate assets and paid her half of the real estate taxes using her
personal funds.
Blain’s will directed the personal representative to pay from
the residue of his estate all of his debts. The will further
waived the requirement that a claim be filed before such pay-
ments would be allowed by the court. As such, Cindy correctly
treated Blain’s share of the 2016 real estate taxes as a predeath
debt of the decedent to be paid by the estate. This assignment
of error is without merit.
Attorney Fees
Matthew argues that the court erred in determining that
Cindy defended the will in good faith. Matthew contends that
by defending the will contest, Cindy was merely attempting to
protect her bequest under the will.
[11,12] If any personal representative or person nominated
as personal representative defends or prosecutes any pro-
ceeding in good faith, whether successful or not, he or she
is entitled to receive from the estate his or her necessary
expenses and disbursements, including reasonable attorney fees
incurred. 22 We have held that “a person seeking to recover
fees under § 30-2481 ‘must first establish good faith, and then
prove (1) that the claimed expenses and disbursements were
necessary and (2) that the attorney fees were necessary and
reasonable.’” 23 The county court’s determination of reasonable
compensation for a personal representative is reviewed for an
abuse of discretion. 24
21
See, In re Estate of Karmazin, 299 Neb. 315, 908 N.W.2d 381 (2018);
Restatement (Third) of Property § 1.1 (1999).
22
§ 30-2481.
23
In re Estate of Giventer, 310 Neb. 39, 57, 964 N.W.2d 234, 246 (2021).
24
In re Estate of Hutton, supra note 1; In re Estate of Graham, supra note 3;
In re Estate of Odineal, supra note 3.
- 364 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
IN RE ESTATE OF LARSON
Cite as 311 Neb. 352[13-15] The good faith required in § 30-2481 is an ultimate
fact for the court’s decision upon all of the evidence. 25 There
are no rules defining it; rather, it depends upon the peculiar
facts and circumstances existing in each case, including the
duties imposed upon him or her by law. 26 “‘Good faith,’ for the
purpose of § 30-2481, is honesty in fact concerning conduct or
a transaction.” 27
Here, Matthew does not quarrel with the issue of whether
the attorney fees were reasonable. Instead, Matthew asserts
that Cindy defended the will contest for the primary purpose
of enhancing her prospects of compensation and that there-
fore, she was not acting in good faith. To support his position,
Matthew directs us to a comment to the Uniform Probate Code,
which states that “[l]itigation prosecuted by a personal repre-
sentative for the primary purpose of enhancing his prospects
for compensation would not be in good faith.” 28
However, Matthew has offered no evidence to support his
contention that Cindy failed to act in good faith, and the
county court specifically found that “[n]o evidence was offered
to support the position that [Cindy] did not defend the will
in good faith.” Indeed, the record shows Cindy defended
the will against vexatious litigation pursued by Matthew and
Amber and to preserve Blain’s wishes as edified by his will.
Cindy’s defense of the will was not primarily to increase
her compensation. 29
As previously mentioned, the good faith required in
§ 30-2481 is an ultimate fact for the court’s decision upon all
of the evidence and we review that decision for an abuse of
discretion. Based upon the record before us, we find no abuse
of discretion. This assignment of error is without merit.
25
In re Estate of Odineal, supra note 3.
26
Id.27
In re Estate of Watkins, 243 Neb. 583, 590, 501 N.W.2d 292, 296 (1993).
28
Unif. Probate Code § 3-720, comment, 8 (part II) U.L.A. 228 (2013).
29
See Neb. Rev. Stat. § 30-2464(a) (Reissue 2016).
- 365 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
IN RE ESTATE OF LARSON
Cite as 311 Neb. 352Headstone
Matthew argues charging a headstone to the estate was not
in the best interests of the successors to the estate. There is no
merit to this argument.
Section 30-2223 sets out the order of persons having the
right to control the arrangements for funeral goods. Under that
statute, in the absence of specific direction from Blain’s will,
Matthew and Amber—as his surviving children—had priority
to control the purchase of his headstone. However, if Matthew
and Amber failed to act, authority shifted to Cindy as Blain’s
personal representative.
As of July or August 2017, no headstone had been pur-
chased for Blain’s grave. At the request of Blain’s mother,
Cindy bought a headstone. At the time, Cindy was unaware
that Matthew and Amber had purchased a headstone, which
they later set upon the grave. Matthew and Amber did not bill
the estate for the headstone.
The court accepted Cindy’s testimony that Cindy’s payment
of the headstone was appropriate and necessary to carry out her
duties as personal representative. We find no abuse of discre-
tion by the county court. 30
Matthew’s Remaining Assignments
Matthew argues that the court incorrectly applied § 30-24,120,
which states:
Unless previously adjudicated in a formal testacy pro-
ceeding 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
30
See In re Estate of Hutton, supra note 1. See, also, In re Estate of Bullion,
87 Neb. 700, 128 N.W. 32 (1910).
- 366 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
IN RE ESTATE OF LARSON
Cite as 311 Neb. 352later of (1) three years after the decedent’s death; or (2)
one year after the time of distribution thereof. This sec-
tion does not bar an action to recover property or value
received as the result of fraud.
Here, Cindy filed a petition for settlement and distribu-
tion on February 7, 2020. Matthew filed an objection on
March 6, pursuant to § 30-24,104(b), which provides a dis-
tributee the right to object to a proposed distribution within 30
days of receiving the proposal. Matthew sought relief under
§ 30-24,100 and specifically requested that each party pay his
or her own inheritance tax.
The county court found Matthew’s objection untimely, stat-
ing in part that Matthew did not object within 3 years of Blain’s
death. However, Matthew sought no relief under § 30-24,120.
Further, Matthew is not a claimant seeking to recover property
improperly distributed. At argument before this court, Cindy
did not contend that Matthew’s objection regarding the pay-
ment of inheritance taxes was untimely, but instead candidly
agreed that if Matthew’s argument regarding inheritance taxes
has merit then a remand would be appropriate. The court
erred by finding this aspect of Matthew’s objection untimely.
However, any such error is without consequence as Matthew
sought no relief under § 30-24,120.
Lastly, Matthew contends that the court misapplied the
rules of abatement and apportionment. Abatement is set out in
§ 30-24,100, which provides in relevant part as follows:
(a) . . . [S]hares of distributees abate, without any pref-
erence 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. . . . 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.
- 367 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
IN RE ESTATE OF LARSON
Cite as 311 Neb. 352Here, Blain’s will devised all of his assets. Namely, Blain
specifically devised assets to Matthew and Cindy and devised
the residue of the estate to Cindy. The will also directed that
the residual estate be used to satisfy all his debts, funeral
expenses, administration expenses, and estate, inheritance, suc-
cession, and transfer taxes which became payable by reason of
his death. As previously discussed, payment of Blain’s admin-
istrative expenses, funeral expenses, and federal income taxes
exhausted his residual estate. As such, under § 30-24,100, with
the exception of inheritance taxes, after exhaustion of the resi-
due of the estate, all remaining debts, funeral expenses, admin-
istration expenses, and estate, succession, and transfer taxes
which became payable by reason of Blain’s death would be
paid by the abatement of the specific devises in proportion to
the amount each of the beneficiaries would have received if full
distribution had been made under the terms of the will.
The parties agreed that Matthew was devised 50.6 percent
of the property specifically devised by Blain’s will and that
Cindy was devised 49.4 percent. Therefore, after exhaustion of
the residue of the estate, the specific devises to Matthew and
Cindy should have been abated 50.6 to Matthew and 49.4 to
Cindy. According to Cindy’s inheritance tax worksheet filed
with the court, Cindy apportioned the debts, funeral expenses,
and administration expenses 50 percent to herself and 50 per-
cent to Matthew. So, in actuality, Cindy abated her devise at a
rate higher than she was required to do under the statute. As
such, this assignment of error is without merit.
CONCLUSION
The court’s order is in part reversed and the cause must be
and is hereby remanded with directions to require Matthew and
Cindy to each pay their respective inheritance taxes owed in
this matter according to Nebraska law.
Affirmed in part, and in part reversed
and remanded with directions.
Heavican, C.J., not participating.