Neel v. Wegner (In re Estate of Odenreider)

• Decision Date: 16 August 2013
• Docket Number: No. S–12–579,S–12–579
• Citation: 286 Neb. 480,837 N.W.2d 756
• Parties: In re Estate ofIna Wegner Odenreider, Deceased. Christy L. Neel, Appellee, v. Robert Wegner, et al., Appellants.
• Court: Nebraska Supreme Court

286 Neb. 480
837 N.W.2d 756

In re Estate ofIna Wegner Odenreider, Deceased.
Christy L. Neel, Appellee,
v.
Robert Wegner, et al., Appellants.

No. S–12–579

Supreme Court of Nebraska.

Filed August 16, 2013

Appeal from the County Court for Dodge County: Kenneth Vampola, Judge. Affirmed.
Robert A. Mooney, of Gross & Welch, P.C., L.L.O., for appellants.

William J. Bianco, of Bianco Stroh, L.L.C., for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller-Lerman, andCassel, JJ.

Syllabus by the Court

[286 Neb. 480]1. Decedents' Estates: Appeal and Error. An appellate court reviews probate cases for error appearing on the record made in the county court.

2. Decedents' Estates: Judgments: Appeal and Error. When reviewing questions of law in a probate matter, an appellate court reaches a conclusion independent of the determination reached by the court below.

3. Statutes: Appeal and Error. Statutory interpretation presents a question of law that an appellate court independently reviews.

4. Trial: Waiver: Appeal and Error. A litigant's failure to make a timely objection waives the right to assert prejudicial error on appeal.

[286 Neb. 481]5. Decedents' Estates: Wills. Chapter 30, article 24, of the Nebraska Revised Statutes addresses the probate and administration of wills and provides the rules in Nebraska for both informal and formal probate of wills, including the rules for supervised administration. This chapter is based upon the Uniform Probate Code.

6. Decedents' Estates: Pleadings. Pursuant to Neb.Rev.Stat. § 30–2441(a) (Reissue 2008), the filing of a petition for supervised administration stays action on any informal application then pending or thereafter filed.

7. Decedents' Estates: Courts.Neb.Rev.Stat. § 30–2440 (Reissue 2008) provides when a probate court may grant a petition for supervised administration.

8. Decedents' Estates: Courts. Once supervised administration is ordered, a probate court is granted liberal authority to direct the supervised personal representative.

9. Decedents' Estates: Wills: Courts. The probate or annulment of a will and the administration of a decedent's estate are reserved to state probate courts.

10. Property: Sales. It is impossible to sell an interest in property one does not own.

Heavican, C.J.
I. INTRODUCTION

This appeal involves the probate of the estate of Ina Wegner Odenreider (Ina). Robert Wegner, Mark Wegner, and Laura Sherman (collectively appellants) petitioned this court for bypass of the Nebraska Court of Appeals, contending this case presented a novel legal question involving the Nebraska Probate Code. We granted appellants' petition to bypass.

We conclude that the probate court had jurisdiction to determine the matters at issue in this estate. We further determine that the probate court did not err in ordering

[837 N.W.2d 760]

supervised administration of the estate and ordering the personal representative to amend the proposed distribution based upon our de novo review explained below. We affirm the order of the probate court.

[286 Neb. 482]II. FACTUAL BACKGROUND

Robert is one of Ina's two sons and the personal representative of her estate. Mark and Sherman are Robert's children. Ina's other son, Joel Wegner, had three children.

Ina was married to Willis Wegner. Willis passed away in 1990. Relevant to this appeal are five parcels of land that Ina and Willis owned at the time of Willis' death. All were owned by Ina and Willis as tenants in common. Upon Willis' death, he left his one-half interest in one parcel to Ina outright. Through a trust, Willis left Ina a life estate in his one-half interest in the remaining four parcels, with certain remainder interests vested in Robert and Joel and the children of Robert and Joel.

In 1998, one of Joel's children, Christy L. Neel (Christy), filed for chapter 7 bankruptcy. She listed as one of her assets her contingent interest in Willis' trust, as noted above. Mark purchased that interest at a bankruptcy auction. The description of the interest sold at auction was not specific, but instead was described as whatever interest Christy had in the trust.

In 2005, Ina executed her last will and testament. Via a trust, she left her interest in all five parcels to Robert and Joel. If either Robert or Joel had died, his children would take Willis' half; if both had died, the trust would terminate and the assets would be distributed one-half to the children of Robert and one-half to the children of Joel. In fact, Joel predeceased Ina. In her will, Ina also bequeathed Christy $25,000. She did not gift a cash amount to any of her other grandchildren.

Ina died in June 2010. Robert was named personal representative in Ina's will and, as such, in July 2010, filed an “Application for Informal Probate of Will and Informal Appointment of Personal Representative,” pursuant to Neb.Rev.Stat. § 30–2414 (Reissue 2008). This section allows for appointment of a personal representative to administer an estate under a will without formal litigation. Upon receipt of such application, the registrar must validate the completeness of the application and accept or deny the request for appointment of a personal representative.¹ The registrar's findings in [286 Neb. 483]informal probate proceedings are conclusive as to all persons until superseded by a formal testacy proceeding.²

In December 2010, Robert filed an inventory of estate property as required by Neb.Rev.Stat. § 30–2467 (Reissue 2008) and filed an amended inventory in July 2011. A proposed schedule of distribution was filed on September 6. This schedule listed Mark as having Christy's interest in Ina's property. The schedule did not list the $25,000 left to Christy in Ina's will.

On September 9, 2011, Christy filed an “Objection to Determination of Inheritance Tax and Motion for Supervised Administration.” The inheritance tax objection was later withdrawn and is not relevant to this appeal. Christy provided in her motion for supervised administration that she did “not agree with the Personal Representative's handling of this case and believe[d] it would be in the best interests of all beneficiaries that the estate be supervised since correct and proper administration

[837 N.W.2d 761]

will affect the distribution to all beneficiaries.”

A hearing was held on Christy's objection and motion on October 17, 2011, at which Christy argued that the estate was not being handled properly and that she would like a court-administered personal representative appointed. Christy asserted that pursuant to Ina's will, she was left an interest in Ina's land that would go to a trust, but that Robert, as the current personal representative, did not include this interest in the schedule of distribution for Ina's estate. Robert had expressed to Christy that he believed Christy's interest in Ina's land was sold during Christy's bankruptcy auction. Christy also noted that the personal representative did not include the $25,000 amount left to Christy under Ina's will.

At the hearing, Robert did not necessarily object to a supervised administration of the estate, but did object to the appointment of a new personal representative. In response to Christy's contentions, Robert argued that Christy should have filed an objection to the schedule of distribution pursuant to Neb.Rev.Stat. § 30–24,104(b) (Reissue 2008) of the Nebraska Probate [286 Neb. 484]Code. Robert further argued that the bankruptcy court was the proper forum to determine what Christy had sold as a part of her bankruptcy.

After considering the parties' arguments, the probate court ordered the filing of any supplemental motions and scheduled an evidentiary hearing for December 15, 2011. Primarily at issue during the December 15 hearing was what interest was sold to Mark at Christy's bankruptcy auction. In addition, Christy filed a motion with the bankruptcy court to consider that same question. The latter motion was denied by the bankruptcy court, with that court concluding the probate court was better positioned to determine that question.

At a subsequent hearing before the probate court on April 9, 2012, the probate court addressed the question of whether Christy's objection to final distribution was outside of the time period to file that motion. The probate court, citing Neb.Rev.Stat. § 30–2441(a) (Reissue 2008), found that Christy's objection was timely, because her September 9, 2011, motion for supervised administration stayed the informal probate proceedings.

On May 23, 2012, the probate court entered an order concluding that Christy's interest in Ina's share of the land was not transferred to Mark via the trustee deed following the bankruptcy sale. The probate court also approved Christy's motion for supervised administration. The probate court concluded that the personal representative had made various errors related to the distribution of the estate. Accordingly, the probate court ordered that the personal representative should (1) be supervised by the court and (2) amend the schedule of distribution to correct the errors the court found.

III. ASSIGNMENTS OF ERROR

Appellants assign that the probate court (1) erred in failing to find that Christy failed to provide proper notice of her motion for supervised administration; (2) erred in finding that the motion for supervised administration tolled Christy's deadline to object to the distribution; (3) exceeded its jurisdiction in concluding that certain property was not sold in Christy's bankruptcy; and (4) erred in relying on parol evidence to [286 Neb. 485]determine the interest sold at the bankruptcy auction, and in ignoring contemporaneous writings evidencing the sale of her further contingent interest.

[837 N.W.2d 762]

IV. STANDARD OF REVIEW

An appellate court reviews probate cases for error appearing on the record made in the county court.³ When reviewing questions of law in a probate matter, an appellate court reaches a conclusion independent of the determination reached by the court below.⁴...