Nebraska § 30-2481 - Expenses in estate litigation.

§ 30-2481. Expenses in estate litigation.

If any personal representative or person nominated as personal representative defends or prosecutes any proceeding in good faith, whether successful or not he is entitled to receive from the estate his necessary expenses and disbursements including reasonable attorneys' fees incurred.

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 district court did not abuse its discretion in finding that the personal representative acted in good faith in incurring attorney fees where the record showed she defended the will against vexatious litigation pursued by the decedent's children and to preserve the decedent's wishes, and her defense of the will was not primarily to increase her compensation. In re Estate of Larson, 311 Neb. 352, 972 N.W.2d 891 (2022).

This section does not allow the county court to deny fees because it finds that the personal representative or nominated personal representative who prosecuted or defended a proceeding in good faith should have known that the litigation position it took lacked merit, but the objective merits of a legal position could be relevant to whether a person defended or prosecuted a proceeding in good faith. In re Estate of Giventer, 310 Neb. 39, 964 N.W.2d 234 (2021).

The Nebraska Probate Code does not authorize attorney fees for a surviving spouse. A surviving spouse also acting as the personal representative is not entitled to attorney fees for legal actions that she took while she was not the personal representative and that were directed at obtaining assets that did not benefit the estate or come under its administration. In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).

Good faith for the purpose of this section is honesty in fact concerning conduct or a transaction, and is distinguished from mere negligence or honest mistake. Whether successful or not, a personal representative or person nominated as personal representative is entitled to receive his necessary expenses, including attorney fees, when he prosecutes or defends any proceeding in good faith. In re Estate of Watkins, 243 Neb. 583, 501 N.W.2d 292 (1993).

Fees allowed in probate proceedings under this section to persons nominated as personal representatives under a will are administration expenses and need not be paid pursuant to the probate claim statutes. In re Estate of Reimer, 229 Neb. 406, 427 N.W.2d 293 (1988).

The good faith required in this section is an ultimate fact for the court's determination upon all of the evidence. There are no rules defining it, rather, it depends upon the peculiar facts and circumstances existing in each case. In re Estate of Odineal, 220 Neb. 168, 368 N.W.2d 800 (1985).