In re Estate of Evans - 20 Neb. App. 602, 827 N.W.2d 314 (2013)

Rule:

Neb. Rev. Stat. § 30-2306 (Reissue 2008) provides that if representation is called for by the Nebraska Probate Code, the estate is divided into as many shares as there are surviving heirs in the nearest degree of kinship. Where none of the decedent's siblings survive the decedent, there are no surviving heirs in the nearest degree of kinship, namely the decedent's siblings. Thus, the probate court must look to the next degree of kinship, or the next generation, which contains at least one surviving heir.

Facts:

The decedent, Donald J. Evans, died intestate. At the time of his death, he was domiciled in Nebraska. He was not married at the time of his death, and had no surviving children or issue. His parents were deceased at the time of his death. He had three brothers, Robert, Stewart, and Frederick, but all three brothers predeceased Donald. Of the brothers, Donald was survived by nieces Susan and Mary (via Stewart) and nephew Ted (via Frederick). Appellant Ted Evans nominated himself as the sole personal representative of the estate and alleged that he had priority status as an heir entitled to at least 50 percent of the estate.  Appellee Mary Evans filed an objection alleging that appellant was not entitled to 50 percent of the estate. Appellee asked the court to continue its appointment of co-personal representatives and to make a determination as to the share to which each heir was entitled. Appellee did not petition for appellant’s removal as co-personal representative.

Issue:

Did the trial court err in passing the estate to the next of kin in equal shares?

Answer:

No. The judgment was affirmed in part and reversed in part, and the case was remanded for further proceedings.

Conclusion:

The appellate court concluded that the trial court incorrectly applied Neb. Rev. Stat. § 30-2306(5) when it should have applied Neb. Rev. Stat. § 30-2303(3). However, the trial court achieved the correct result when it determined that the estate passed to the next of kin in equal shares. Thus, the decedent's nieces and nephew were each entitled to a one-third share of the decedent's estate. But the trial court improperly removed the personal representative because the procedural steps under Neb. Rev. Stat. § 30-2454 were not followed.