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310 Nebraska Reports

IN RE ESTATE OF GIVENTER

Cite as 310 Neb. 39

In re Estate of Pearl R. 

Giventer, deceased.

Edward F. Fogarty and J. Bruce Teichman, 

appellants, v. Marlys Lebowitz 

et al., appellees.

___ N.W.2d ___

Filed September 3, 2021. No. S-20-111.

1. Guardians and Conservators: Judgments: Appeal and Error.

Appeals of matters arising under the Nebraska Probate Code, Neb. Rev. 

Stat. §§ 30-2201 through 30-2902 (Reissue 2016, Cum. Supp. 2018 & 

Supp. 2019), are reviewed for error on the record.

2. Decedents’ Estates: Appeal and Error. An appeal from the county 

court’s allowance or disallowance of a claim in probate will be heard as 

an appeal from an action at law. In reviewing a judgment of the probate 

court in a law action, an appellate court does not reweigh evidence, but 

considers the evidence in the light most favorable to the successful party 

and resolves evidentiary conflicts in favor of the successful party, who is 

entitled to every reasonable inference deducible from the evidence. The 

probate court’s factual findings have the effect of a verdict and will not 

be set aside unless clearly erroneous.

3. Judgments: Appeal and Error. On a question of law, an appellate court 

is obligated to reach a conclusion independent of the determination 

reached by the court below.

4. Statutes: Appeal and Error. Statutory interpretation is a question of 

law, which an appellate court resolves independently of the trial court.

5. Decedents’ Estates: Claims: Time. The requirements of Neb. Rev. Stat. 

§ 30-2485 (Reissue 2016) are mandatory, and where a claim is not filed 

within the time provided in the statute, it is barred.

6. Statutes. It is not within the province of the courts to read meaning 

into a statute that is not there or to read anything direct and plain out of 

a statute.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

10/15/2021 12:07 AM CDT
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IN RE ESTATE OF GIVENTER

Cite as 310 Neb. 39

7. Legislature: Intent. The intent of the Legislature is expressed by omission as well as by inclusion.

8. Appeal and Error. An appellee’s argument that a lower court’s decision should be upheld on grounds specifically rejected below constitutes 

a request for affirmative relief, and the appellee must cross-appeal in 

order for that argument to be considered.

Appeal from the County Court for Douglas County: Craig 

Q. McDermott, Judge. Affirmed in part, and in part reversed 

and remanded with directions.

Edward F. Fogarty, pro se, and J. Bruce Teichman, pro se.

Diana J. Vogt and James L. Schneider, of Sherrets, Bruno & 

Vogt, L.L.C., for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Papik, J.

This is an appeal from the denial of petitions to recover fees 

and expenses incurred by a nominated personal representative 

and his attorney who were unsuccessful in probating a will 

that was drafted by the attorney. We conclude that the county 

court did not err in finding in these probate proceedings that 

claims for fees and expenses from the estate for services 

performed by the attorney prior to the decedent’s death were 

time barred. However, we conclude the county court’s reasons 

for denying fees and expenses for services after the decedent’s death were legally erroneous. Regarding the remaining 

requests for relief, we conclude they are not supported by a 

discernible legal argument. Therefore, we affirm in part and in 

part reverse the county court’s judgment and remand the cause 

with directions.

I. BACKGROUND

1. Parties and Overview

This appeal from probate proceedings involves the estate 

of Pearl R. Giventer, who was born in 1920. In 2012, she 
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IN RE ESTATE OF GIVENTER

Cite as 310 Neb. 39

signed a will drafted by Edward F. Fogarty, naming J. Bruce 

Teichman as her nominated personal representative. The 2012 

will purported to revoke Pearl’s preexisting pourover will and 

the provisions of a related revocable trust of which Pearl was 

the settlor and which provided for the disposition of trust assets 

upon her death. Shortly after Pearl died in 2013, Fogarty filed 

in the trust proceedings a request for fees from the trust for 

services he performed prior to Pearl’s death. More than 3 years 

later, Fogarty requested predeath fees from the trust and from 

the estate. In addition, Fogarty and Teichman, represented by 

Fogarty, sought from Pearl’s estate and trust fees and expenses 

incurred after Pearl’s death, primarily in their unavailing efforts 

to probate the 2012 will. All told, Fogarty and Teichman 

sought fees and expenses of approximately $500,000. Fogarty 

and Teichman appeal the county court’s complete denial of fees 

and expenses.

Appellees include Marlys Lebowitz (Marlys), who is Pearl’s 

daughter and personal representative of her estate, and Wells 

Fargo Bank (Wells Fargo), the trustee of Pearl’s trust. Wells 

Fargo waived briefing and oral argument. Also an appellee is 

Pearl’s son, Paul Giventer, who plays a role in this case as an 

interested party. The record indicates that there was animosity between Fogarty and Paul. Paul has not filed a brief in 

this appeal.

The procedural history of this appeal from probate proceedings is complicated. In addition to the underlying probate 

proceedings, also relevant are guardianship and conservatorship proceedings, trust proceedings, and several appeals. An 

exhaustive history of all of these related proceedings would be 

too lengthy to repeat here. What follows are the facts salient to 

the legal issues before us.

2. Pearl’s Trust and Guardianship

In 1996, Pearl established the Pearl R. Giventer Revocable 

Trust, naming herself as trustee. Pearl executed a pourover 

will to the trust in 2005. The trust, as amended in 2005 and 

2008, gave Pearl the power to revoke it during her lifetime. 
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Under certain conditions, it provided for distribution of trust 

assets during Pearl’s life. The trust also functioned as an estate 

planning tool. According to the trust’s dispositive provisions, 

Paul and Marlys would be the primary beneficiaries of the trust 

assets when Pearl died.

In November 2009, Paul initiated a proceeding to have 

himself appointed guardian for Pearl. A temporary guardian 

was appointed. After negotiations during which Pearl and 

Paul were represented by independent counsel, they came to 

a settlement agreement in April 2010. Under the agreement, 

the trust was again amended. Pearl resigned as trustee and was 

succeeded by Wells Fargo. Pearl agreed not to remove Wells 

Fargo as trustee without Paul’s consent or a court order. Pearl 

also agreed to limitations on her ability to alter the settlement 

agreement and to alter the provisions to distribute the trust 

assets when she died. To change these aspects, Pearl needed 

permission of Wells Fargo and an unrelated third party, to be 

selected by agreement of Wells Fargo, Paul, and Marlys or, if 

they could not agree, by the county court. In exchange for the 

2010 settlement agreement, Paul terminated the guardianship 

and conservatorship proceedings. Subsequently, the amended 

trust was registered with the county court.

In July 2010, a second guardianship and conservatorship 

proceeding for Pearl was opened. Supporting documentation 

showed that Pearl had Alzheimer’s disease and dementia and 

exhibited symptoms of cognitive decline and impairment. Pearl 

consented to the proceedings, and in December, a guardian and 

conservator were appointed.

3. Fogarty Retained and Services 

Limited by Court Order

On January 3, 2011, Pearl, while under guardianship, retained 

Fogarty and another attorney as her counsel on a noncontingent 

basis. The retainer agreement identified the legal services 

to be performed as “[guardianship and conservatorship proceeding] PR10-1026, Estate, guardianship and family/financial 
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Cite as 310 Neb. 39

& conservatorship, recoupment of money (250K?)—will start 

appeal, defer pushing.” Paul, however, filed a motion in the 

guardianship proceeding challenging the authority of Fogarty 

and his cocounsel to act as Pearl’s attorneys. Pearl, represented 

by Fogarty and his cocounsel, opposed it.

The county court did not void Pearl’s contract with Fogarty 

and his cocounsel, but, in an order entered on June 23, 2011, 

it limited the scope of their representation to those purposes 

outlined in Neb. Rev. Stat. § 30-2620(9) (Reissue 2008): 

“After appointment, the ward may retain an attorney for the 

sole purpose of challenging the guardianship, the terms of 

the guardianship, or the actions of the guardian on behalf of the 

ward.” On behalf of Pearl, Fogarty and his cocounsel eventually appealed to the Nebraska Court of Appeals the ruling that 

limited the scope of their representation; they also appealed 

an order approving an annual accounting by Wells Fargo and 

authorizing payment of attorney fees and costs associated 

with it. The appeals were consolidated and docketed as cases 

Nos. A-11-806 and A-11-974.

4. Pearl Signs 2012 Will

While the consolidated appeals in cases Nos. A-11-806 and 

A-11-974 were pending, Fogarty, purporting to represent Pearl, 

met with Pearl’s guardian to discuss a will for Pearl and other 

matters. The guardian relied on a February 2012 evaluation 

that found that Pearl lacked testamentary capacity, but Fogarty 

viewed the evaluation as legally insufficient. Thereafter, without the guardian’s awareness or approval, Fogarty retained a 

psychiatrist to assess Pearl’s testamentary capacity. The psychiatrist determined that Pearl suffered from mild to moderate 

dementia but possessed testamentary capacity.

On September 5, 2012, Pearl signed a will prepared by 

Fogarty. At that time, nearly all of Pearl’s assets were property 

of the trust. The 2012 will nominated Teichman as personal 

representative and cotrustee, along with another individual, 

of the testamentary trusts it created. The 2012 will purported 
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Cite as 310 Neb. 39

to revoke Pearl’s trust as amended in 2010, as well as any 

prior wills. As in earlier instruments, Paul and Marlys were the 

primary beneficiaries under the 2012 will, but unlike the earlier instruments, the 2012 will contained a penalty clause that 

substantially reduced Paul’s and Marlys’ residuary shares in the 

event they challenged the will.

5. Limitation of Services Affirmed, Pearl Dies, 

Will Contest Begins, Fogarty Seeks 

Fees From Trust, and Attempts 

to Revive Appeal

In April 2013, the Court of Appeals affirmed the county 

court’s order limiting the scope of Fogarty’s legal services 

to those listed in § 30-2620. See In re Guardianship & 

Conservatorship of Giventer, Nos. A-11-806, A-11-974, 2013 

WL 2106656 (Neb. App. Apr. 9, 2013) (selected for posting 

to court website). Fogarty filed a motion for rehearing on 

Pearl’s behalf.

On May 10, 2013, Pearl died.

On May 15, 2013, Paul requested a declaratory judgment 

action in the trust proceeding ordering that the trust assets 

should be distributed pursuant to the terms of the trust as 

amended in 2010 by his settlement agreement with Pearl.

On May 16, 2013, Fogarty, whom Teichman retained to 

probate the 2012 will, filed the 2012 will for probate in county 

court. At some point in the summer of 2013, the 2005 pourover 

will that devised assets to Pearl’s trust was also submitted for 

probate by Paul.

The will contest was transferred to district court but then 

stayed pending the county court’s determination of issues 

related to the 2010 trust amendments.

On June 12, 2013, Fogarty and his cocounsel filed in the 

trust proceedings an application for the payment of fees and 

costs for services incurred during Pearl’s lifetime “if it be 

within the authority of the Pearl R. Giventer [Revocable] Trust 

to do so.” The application included itemized statements of fees 

incurred before Pearl’s death.
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After Pearl’s death, Fogarty made many filings related to her 

motion for rehearing under submission in the Court of Appeals 

in cases Nos. A-11-806 and A-11-974, in an attempt to revive 

the appeal in Teichman’s name. None of these efforts were successful, and the Court of Appeals overruled Pearl’s motion for 

rehearing for failure of the parties to properly revive the appeal 

within 1 year after Pearl’s death. Fogarty sought further review, 

but the petition was denied.

6. 2014 Settlement Agreement Between Paul and 

Marlys, Trust Determined Controlling, and 

2012 Will Has No Force or Effect

Marlys initially opposed the 2010 trust settlement agreement, but in 2014, Paul and Marlys reached a settlement agreement and joined in a motion for summary judgment in Paul’s 

declaratory judgment action to have the 2010 trust settlement 

agreement declared valid and enforceable and to find Teichman 

had no standing.

In opposition, Fogarty filed a cross-motion for summary 

judgment on Teichman’s behalf. After Fogarty was advised of 

the settlement reached between Paul and Marlys, Teichman 

designated a specific nonprofit organization as a beneficiary 

under the 2012 will’s penalty clause, which allowed the personal representative to distribute significant assets to “Omaha 

synagogues and Omaha Jewish non-profit organizations” 

selected by him in the event that Paul and Marlys challenged 

the will.

On August 2, 2015, the county court entered an order granting summary judgment in favor of Paul and Marlys and denying Teichman’s motion for summary judgment. It found that 

the 2010 trust settlement agreement was valid and enforceable 

and that Teichman had no standing to challenge its validity 

or to raise issues regarding the trust. The county court further 

found that the purported 2012 will did not alter the dispositive 

scheme of the trust as amended and that “[b]ecause the 2012 

Will is of no force and effect, any beneficiaries, contingent 
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IN RE ESTATE OF GIVENTER

Cite as 310 Neb. 39

or otherwise, named in the 2012 Will, but not named in the 

Trust have no standing to raise issues regarding the administration of the trust or participate in related proceedings.”

Represented by Fogarty, Teichman appealed. In case No. 

A-15-825, the Court of Appeals affirmed the county court order 

in an unpublished memorandum opinion filed on November 4, 

2016. Fogarty filed unsuccessful motions for rehearing and 

further review on Teichman’s behalf.

7. Requests for Fees and Expenses

On July 14, 2016, while the appeal in case No. A-15-825 

was still pending, Fogarty filed in the conservatorship, trust, 

and probate proceedings an “Informational and Supplemental 

Cumulative Interim Claim of Edward F. Fogarty, Creditor” for 

fees and costs incurred before and after Pearl’s death. Fogarty 

identified himself as a creditor of Pearl’s “Estate and Trust” and 

characterized the document as a “supplement[]” to the application for fees he filed in the trust proceedings in May 2013. On 

August 3, 2016, the special administrator filed a response in the 

probate proceedings. To the extent that Fogarty’s July 14 filing 

was a claim or notice of claim in the probate proceedings, the 

special administrator disallowed it, noting that Fogarty had not 

previously claimed fees in the probate proceeding.

On April 4, 2018, Fogarty and Teichman filed petitions for 

allowance of claims in the probate proceedings. Fogarty reiterated that he was entitled to fees and expenses incurred before 

Pearl’s death, requesting fees from the trust and probate estate. 

Similarly, as for fees and expenses for his services to Teichman 

after Pearl’s death, Fogarty asserted the trust and probate 

estate were liable. In total, Fogarty claimed he was entitled 

to approximately $500,000 for fees and expenses. Teichman 

sought postdeath fees and expenses of $8,000.

Each also asked for declaratory and equitable relief declaring meritless “ad hominem attacks” and “slanders” by Paul 

and Marlys. These “attacks” included unsuccessful motions for 

attorney fees by Marlys, alleging bad faith and frivolousness 
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IN RE ESTATE OF GIVENTER

Cite as 310 Neb. 39

by Fogarty and Teichman, and pleadings filed by Paul asserting that Fogarty’s retainer was in bad faith and that Fogarty 

coerced and defrauded Pearl into signing the 2012 will.

8. County Court’s Orders

On June 10, 2019, the county court denied fees in the 

probate proceeding incurred prior to Pearl’s death, because 

Fogarty and Teichman filed their claims for those fees out of 

time, apparently pursuant to Neb. Rev. Stat. §§ 30-2485(a)(2) 

and 30-2486 (Reissue 2016). It also denied postdeath fees and 

expenses, articulating the test as “what is reasonable and necessary and beneficial to the estate.” The county court reasoned 

that Teichman’s acts, through Fogarty, in pursuing probate of 

the will did not benefit the estate, even if done in good faith. 

But the county court observed that the evidence did not support a finding of bad faith or vexatious acts by Fogarty and 

Teichman or by Paul’s and Marlys’ attorneys.

On June 14, 2019, Fogarty and Teichman filed a motion for 

new trial or to alter and amend the judgment. They asserted 

that they were not required to show some benefit to the estate, 

but, rather, that their actions were taken in good faith consistent with Pearl’s directions while she was living and with the 

2012 will. The motion also challenged the county court’s finding that claims for predeath fees were time barred, asserting 

that Neb. Rev. Stat. § 30-2482 (Reissue 2016) applied, rather 

than § 30-2486.

On January 17, 2020, the county court denied the motion 

for new trial in its entirety and entered a new order modifying 

its reasoning but still denying fees. The county court rejected 

the assertion that § 30-2482 applied to Fogarty’s claim for 

predeath fees, noting that that section, along with Neb. Rev. 

Stat. § 30-2481 (Reissue 2016), applies to services on behalf of 

the estate and that there was no estate or personal representative prior to Pearl’s death and there were likewise no probate 

or administration expenses. Instead, it found that claims for 

predeath fees were associated with services Fogarty performed 
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for Pearl directly, rather than her estate or her nominated personal representative, and should have been filed in the probate 

proceeding within the 3-year limitations period set forth in 

§ 30-2485(a)(2).

Regarding the postdeath fees and expenses, the county court 

modified its previous order to address whether Fogarty and 

Teichman’s actions were “‘necessary’” to the estate, rather 

than whether they were of some “benefit to the estate.” The 

county court stated that it did not find Fogarty and Teichman 

acted in bad faith, “as the evidence was insufficient to prove 

the same”; that Fogarty and Teichman believed they had a duty 

to pursue the 2012 will; and that they believed they had carried 

out their duty under the 2012 will in good faith. However, the 

county court found that Fogarty created this supposed duty by 

drafting an unenforceable will in disregard of the provisions 

in the 2010 trust amendment that controlled Pearl’s future 

estate planning and was later determined to be the controlling 

instrument. The county court observed that Fogarty “seemed to 

ignore” the 2010 trust amendment.

The county court further observed that § 30-2482 did not 

apply to postdeath fees incurred by Teichman because he was 

not and could not have been appointed as “personal representative” via an unenforceable will. It also deemed it significant 

that the probate estate did not contain any assets to satisfy 

claims by Fogarty and Teichman and appeared to conclude 

that Fogarty and Teichman could not have their claims satisfied by assets from the trust, because they did not comply with 

the provisions of Neb. Rev. Stat. § 30-3850 (Reissue 2016). 

Considering “the necessity of pursuing an unenforceable will 

and whether that will should have been drafted in the first 

place,” the county court determined that Fogarty and Teichman 

could not recover postdeath fees and expenses.

Fogarty and Teichman have timely filed this appeal.

II. ASSIGNMENTS OF ERROR

Fogarty and Teichman assign that the county court erred 

by (1) “not awarding and ordering the Trust to pay [Fogarty] 
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and [Teichman] fair and reasonable fees,” (2) “ruling [Fogarty’s] 

fees and expenses in service to Pearl before she died were 

time-barred” and failing “to order the Trust to pay these fair 

and reasonable fees and expenses,” and (3) “not declaring 

all claims of Paul and Marlys[] (a) are without merit” and 

“(b) are res judicata and/or claim precluded against [Fogarty] 

and [Teichman] by them or any person in privity with them.” 

(Emphasis omitted.)

III. STANDARD OF REVIEW

We set forth the appropriate standards of review in the 

analysis portion of this opinion.

IV. ANALYSIS

1. Fees Incurred Before Pearl’s Death

We begin by addressing Fogarty’s claim that the county 

court erred in not ordering that he be compensated for the fees 

and expenses he incurred in representing Pearl prior to her 

death. He disputes the county court’s finding that a claim for 

such fees was not presented within the 3-year limitations period 

after Pearl’s death, as set forth in § 30-2485(a) for “[a]ll claims 

against a decedent’s estate which arose before the death of the 

decedent . . . .” Not only does Fogarty argue that a different 

subsection for claims “which arise at or after the death of the 

decedent,” § 30-2485(b), applied to impose a 4-month statute 

of limitations commencing upon Pearl’s death, he asserts that 

an application for fees from the trust filed on June 12, 2013, in 

the trust proceedings was sufficient to present his claim within 

that limitations period, see § 30-2485(b)(2). Marlys counters 

that the county court applied the correct statute of limitations, 

that an application filed in the trust proceedings could not 

operate to satisfy the statute of limitations for claims against 

the probate estate, and that the claim for predeath fees is therefore barred as untimely.

As we will explain in greater detail below, we conclude 

that Fogarty did not file a claim against the probate estate 

within any limitations period imposed by § 30-2485. Shortly 
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after Pearl’s death in May 2013 he requested predeath fees and 

expenses from the trust, but he did not file a claim for those 

fees and expenses against the probate estate until July 14, 

2016. As a result, he did not file any claim against the probate 

estate within 3 years of Pearl’s death, and any such claim filed 

afterward was barred.

(a) Standard of Review

[1-4] We first address the standard of review. Generally, 

appeals of matters arising under the Nebraska Probate Code, 

Neb. Rev. Stat. §§ 30-2201 through 30-2902 (Reissue 2016, 

Cum. Supp. 2018 & Supp. 2019), are reviewed for error on 

the record. In re Estate of Hutton, 306 Neb. 579, 946 N.W.2d 

669 (2020). But we apply a different standard of review to 

appeals regarding claims against the probate estate. An appeal 

from the county court’s allowance or disallowance of a claim 

in probate will be heard as an appeal from an action at law. In 

re Estate of Karmazin, 299 Neb. 315, 908 N.W.2d 381 (2018). 

In reviewing a judgment of the probate court in a law action, 

an appellate court does not reweigh evidence, but considers the 

evidence in the light most favorable to the successful party and 

resolves evidentiary conflicts in favor of the successful party, 

who is entitled to every reasonable inference deducible from 

the evidence. Id. The probate court’s factual findings have the 

effect of a verdict and will not be set aside unless clearly erroneous. Id. On a question of law, an appellate court is obligated 

to reach a conclusion independent of the determination reached 

by the court below. Id. Statutory interpretation is a question 

of law, which an appellate court resolves independently of the 

trial court. In re Estate of Hutton, supra.

(b) Applicable Statute of Limitations

Through the years, the litigation involving Pearl has 

included both probate proceedings and trust proceedings. Our 

law recognizes probate proceedings and trust proceedings as 

separate spheres of jurisdiction, see In re Estate of Chrisp, 276 

Neb. 966, 759 N.W.2d 87 (2009), and this appeal arises solely 
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from probate proceedings in which the probate of the 2005 

pourover will was at issue. Where probate of a will is at issue 

in probate proceedings, devolution of the decedent’s property 

devised by the will, subject to, among other things, the rights 

of creditors, is controlled by the Nebraska Probate Code. See 

§§ 30-2201 and 30-2401.

[5] Under our probate code, creditors’ claims in probate 

proceedings must be presented within the time limitations set 

forth in § 30-2485, also called the nonclaim statute. It states, 

in part:

(a) All claims against a decedent’s estate which arose 

before the death of the decedent, . . . whether due or to 

become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, 

if not barred earlier by other statute of limitations, are 

barred against the estate, the personal representative, and 

the heirs and devisees of the decedent, unless presented 

as follows:

(1) Within two months after the date of the first publication of notice to creditors if notice is given in compliance with sections 25-520.01 and 30-2483 . . . ;

(2) Within three years after the decedent’s death if 

notice to creditors has not been given in compliance with 

sections 25-520.01 and 30-2483.

(b) All claims . . . against a decedent’s estate which 

arise at or after the death of the decedent . . . are barred 

. . . unless presented as follows:

. . . .

(2) Any . . . claim [other than one based on a contract 

with the personal representative], within four months after 

it arises.

§ 30-2485. The requirements of § 30-2485 are mandatory, and 

where a claim is not filed within the time provided in the statute, it is barred. In re Estate of Masopust, 232 Neb. 936, 443 

N.W.2d 274 (1989); J. J. Schaefer Livestock Hauling v. Gretna 

St. Bank, 229 Neb. 580, 428 N.W.2d 185 (1988).
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Fogarty’s argument that he is entitled to fees for his services 

for Pearl personally is limited to services he performed before 

Pearl died. Based on our reading of § 30-2485 and the facts 

of this case, we conclude that the 3-year limitations period 

in § 30-2485(a)(2) controlled any claim by Fogarty for predeath fees and expenses against Pearl’s estate in the probate 

proceedings. Section 30-2485(a) applies to claims against the 

decedent’s estate that “arose before the death of the decedent,” 

regardless of whether those fees were “due or to become due.” 

Pearl retained Fogarty for the legal work he performed before 

she died. Fogarty billed Pearl while she lived. Even though the 

fees remained outstanding upon Pearl’s death, Pearl’s indebtedness to Fogarty for predeath fees arose during her lifetime. And 

there is no evidence in the record that notice to creditors was 

given as described in § 30-2485(a)(2).

Fogarty apparently accepts that his claim for predeath fees 

and expenses is governed by the nonclaim statute, but he 

seems to believe that it “ar[ose] at or after” Pearl’s death, see 

§ 30-2485(b), such that § 30-2485(b)(2) applied, imposing a 

4-month limitations period following Pearl’s death. We do not 

understand how fees Fogarty seeks for representing Pearl personally during her life can be said to arise at or after her death. 

In the end, however, it does not matter, because Fogarty did 

not properly present a claim against Pearl’s estate for predeath 

fees and expenses within 3 years of Pearl’s death as required 

by § 30-2485(a)(2), much less within 4 months as required by 

§ 30-2485(b)(2).

(c) Presenting Claim Against Decedent’s Estate

Nebraska has authorized only two methods of presenting 

“claims against a decedent’s estate” to satisfy the limitations 

period in § 30-2485—(1) filing a timely “written statement 

of the claim . . . with the clerk of the court,” pursuant to 

§ 30-2486(1), or (2) commencing a proceeding against the 

personal representative “in any court which has subject matter jurisdiction and [where] the personal representative may 
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be subjected to jurisdiction,” pursuant to § 30-2486(2). See 

Lenners v. St. Paul Fire & Marine Ins. Co., 18 Neb. App. 

772, 793 N.W.2d 357 (2010). Here, Fogarty has not filed a 

proceeding against the personal representative. His recovery of 

predeath fees and expenses depends on whether he timely filed 

a written statement of the claim. The only written request for 

predeath fees and expenses that Fogarty made within 3 years of 

Pearl’s death was the application he made in the trust proceedings on June 12, 2013. Fogarty claims that this was a proper 

presentation of the claim for purposes of the nonclaim statute. 

For the reasons below, we conclude that this application did 

not present a claim against Pearl’s estate for the purposes of 

§§ 30-2485 and 30-2486.

We first look at the nature of Fogarty’s June 12, 2013, application. To be a claim against the decedent’s estate, we have 

required “a demand . . . upon the estate for satisfaction of [an] 

obligation.” In re Estate of Feuerhelm, 215 Neb. 872, 875, 341 

N.W.2d 342, 345 (1983). Here, it is clear that Fogarty made 

a demand on Pearl’s trust assets, not her probate estate. The 

application requested payment of fees and costs for services 

incurred during Pearl’s lifetime “if it be within the authority 

of the Pearl R. Giventer [Revocable] Trust to do so.” Further 

demonstrating that Fogarty sought fees from the trust rather 

than from the probate estate is the fact that his application was 

filed in the trust proceedings. The question becomes whether 

a demand against the trust assets is a claim against the decedent’s estate for the purposes of §§ 30-2485 and 30-2486. We 

conclude that it is not.

We read the language of §§ 30-2485 and 30-2486 to require 

claims to be timely filed against the probate estate. Both 

sections are part of the Nebraska Probate Code and apply 

to “claims against the decedent’s estate.” In In re Estate of 

Chrisp, 276 Neb. 966, 975, 759 N.W.2d 87, 95 (2009), we 

read references to “‘estate’” in our probate code to include 

only the “‘probate estate.’” In doing so, we recognized that 

the definition of “[e]state” for purposes of the probate code 
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includes “the property of the decedent, trust, or other person 

whose affairs are subject to the Nebraska Probate Code.” See 

§ 30-2209(12) (emphasis supplied). We interpreted the reference to “trust” in the definition of “estate” to refer to certain 

limited circumstances in which courts in probate proceedings 

are authorized to exercise jurisdiction over trusts, but specifically rejected the notion that administration of a probate estate 

necessarily includes trust property in which the decedent had 

an interest. Indeed, as referenced above, we held that a county 

court does not have jurisdiction in a probate proceeding to 

consider a petition against a trust to determine whether the 

trust is liable for, among other things, claims against the probate estate. See, § 30-3850(a)(3); In re Estate of Chrisp, supra. 

See, also, In re Estate of George, 265 P.3d 222 (Wyo. 2011) 

(probate court did not have jurisdiction over trust, and creditor 

could not bootstrap rejection of claim against probate estate 

into right to file claim against trust, where limitations period 

for filing claim against trust had expired).

Drawing this distinction between demands against the probate estate and those against the trust is in harmony with other 

provisions of our probate code. Section 30-2401, cited above, 

indicates that probate procedures relating to the rights of creditors apply only to property that passes through the decedent’s 

probate estate:

The power of a person to leave property by will, and 

the rights of creditors, . . . are subject to the restrictions 

and limitations contained in this code to facilitate the 

prompt settlement of estates. Upon the death of a person, 

his real and personal property devolves to the persons 

to whom it is devised by his last will . . . subject . . . to 

rights of creditors . . . .

If property of the probate estate is distributed before payment 

of creditors whose claims are not barred, those creditors may 

pursue their claims against the distributees, not nonprobate 

transferees such as trust beneficiaries. See § 30-2404. In fact, 

all proceedings and actions to enforce creditors’ claims against 
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the decedent’s estate are governed by the procedure in the 

probate code, with the intention of forcing creditors initially 

to engage in the probate process. Id. See, also, Unif. Probate 

Code § 3-104, 8 (part II) U.L.A. 31 (2013) (process for making 

claims against decedent’s estate designed to force decedents’ 

creditors to assert their claims against duly appointed personal 

representatives). See, also, In re Estate of Chrisp, supra (nontestamentary trust is not subject to procedures for administration of decedent’s estate); In re Estate of Rosso, 270 Neb. 323, 

701 N.W.2d 355 (2005) (personal representative’s duty to settle 

and distribute estate does not extend to nontestamentary assets 

that do not lawfully belong to estate).

Requiring Fogarty to ask the probate estate, rather than 

the trust estate, for predeath fees and expenses to satisfy the 

limitations period is also consistent with the purposes of the 

nonclaim statute. The purpose of § 30-2485 is to facilitate and 

expedite proceedings to distribute a decedent’s estate, including an early appraisal of the respective rights of interested 

persons, which include creditors, and prompt settlement of 

demands against the estate. See, § 30-2209(21); In re Estate 

of Feuerhelm, 215 Neb. 872, 341 N.W.2d 342 (1983). As a 

result, the probate court or the personal representative can 

readily ascertain the nature and extent of a decedent’s debts, 

determine whether any sale of property is necessary to satisfy 

the decedent’s debts, and project a probable time at which 

the decedent’s estate will be ready for distribution. Id. Once 

this process is complete, a creditor of the probate estate may 

eventually recover from the decedent’s revocable trust, if one 

exists. See § 30-3850(a)(3) (“[a]fter the death of a settlor, 

and subject to the settlor’s right to direct the source from 

which liabilities will be paid, the property of a trust that was 

revocable at the settlor’s death is subject to claims of the settlor’s creditors, . . . to the extent the settlor’s probate estate is 

inadequate to satisfy those claims . . .”). See, also, In re Estate 

of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009) (personal 

representative has no interest in decedent’s validly created 
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nontestamentary trust except to assert trust’s liability for specified claims against probate estate and statutory allowances that 

probate estate cannot satisfy). But because Fogarty did not 

file a timely claim against the probate estate, his entitlement 

to predeath fees and expenses from the probate estate was not 

under consideration.

Fogarty suggests that his filing against the trust estate in 

the trust proceedings satisfied the nonclaim statute because 

Paul, Marlys, Wells Fargo, and Teichman all had notice of 

the filing and consequently of his claim. But we have held 

that mere notice to a representative of an estate regarding a 

possible demand or claim against the estate does not constitute presenting or filing a claim under § 30-2486. See, J.R. 

Simplot Co. v. Jelinek, 275 Neb. 548, 748 N.W.2d 17 (2008); 

In re Estate of Feuerhelm, supra. “If notice were accorded the 

stature of a claim, the resultant state of flux and uncertainty 

would frustrate and avoid the purpose and objectives of the 

nonclaim statute.” In re Estate of Feuerhelm, 215 Neb. at 875, 

341 N.W.2d at 345.

Lastly, Fogarty seems to submit that his claim was preserved 

because, as he contends, he was entitled to payment from the 

trust estate. He asserts that his method of seeking payment of 

predeath fees and expenses from the trust assets conformed to 

the terms of Pearl’s trust, which allowed the trustee, under certain circumstances, to pay “claims against the Settlor’s estate” 

directly to the creditor or through the personal representative of 

the estate. Moreover, Fogarty implies that the trust is liable for 

his claims against Pearl’s estate pursuant to § 30-3850(a)(3). 

But the liability of Pearl’s trust is not an issue before us. As 

we have already noted, this appeal arises from the probate 

proceedings involving Pearl’s estate, not the trust proceedings. 

In the context of the probate proceedings, the county court did 

not have jurisdiction to rule on whether Fogarty could receive 

predeath fees and expenses from the trust, and consequently, 

neither do we. See In re Estate of Chrisp, supra.
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For the reasons articulated above, the county court did not 

err in denying as time barred Fogarty’s request for the fees and 

expenses he incurred before Pearl died.

2. Fees Incurred After Pearl’s Death

Fogarty and Teichman next argue that they were entitled 

to fees and expenses incurred after Pearl’s death and that the 

county court erred by not ordering that any of their fees and 

expenses be paid. They base this claim for fees and expenses 

on the attempt by Teichman as the nominated personal representative and Fogarty serving as his attorney to revive the 

appeal in cases Nos. A-11-806 and A-11-974 and to probate the 

2012 will. Section 30-2481 governs this matter and provides, 

“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.” 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.” In re Estate of 

Odineal, 220 Neb. 168, 169, 368 N.W.2d 800, 801 (1985). 

Before turning to Fogarty and Teichman’s arguments, however, 

we again review the governing standard of review.

(a) Standard of Review

As we have already discussed, appeals of matters arising 

under the Nebraska Probate Code are reviewed for error on the 

record. In re Estate of Hutton, 306 Neb. 579, 946 N.W.2d 669 

(2020). 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. Id. Fogarty and Teichman’s claim 

for fees and expenses for actions taken after Pearl’s death, 

however, is made under §§ 30-2481 and 30-2482. We have 

said that ordinarily, the fixing of reasonable compensation, 
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fees, and expenses, pursuant to these sections, is within the 

sound discretion of the county court. See In re Estate of 

Odineal, supra.

Our prior cases demonstrate that both of these standards 

of review—errors on the record and abuse of discretion—can 

come into play when compensation is sought under these sections. While the fixing, i.e., the determination of the amount, 

of reasonable compensation, fees, and expenses will ordinarily 

be reviewed for abuse of discretion, we have reviewed determinations antecedent to the fixing of the amount of reasonable 

compensation, fees, and expenses under an errors on the record 

standard. For example, in In re Estate of Watkins, 243 Neb. 

583, 501 N.W.2d 292 (1993), we affirmed a county court’s 

award of compensation to a personal representative and his 

lawyer after finding that the county court’s determination that 

the personal representative acted in good faith was supported 

by evidence. Similarly, in In re Estate of Reimer, 229 Neb. 

406, 427 N.W.2d 293 (1988), we affirmed a county court’s 

award of compensation to a nominated personal representative and his attorney after finding that competent evidence 

supported the county court’s determination that the nominated 

personal representative’s effort to probate a will were done in 

good faith. We will proceed in the same manner here.

(b) County Court’s Reasons for 

Denying Compensation

Fogarty and Teichman argue that the reasons provided by the 

county court for denying them compensation under § 30-2481 

were legally erroneous. Although the county court’s 2020 order 

in which it modified its reasons for denying the fee request 

filed by Fogarty and Teichman is not perfectly clear to us in 

all respects, we understand it to have denied compensation for 

essentially three reasons: (1) Teichman was merely nominated 

as a personal representative in the 2012 will, but did not actually serve in that capacity; (2) there were insufficient funds 

in the probate estate to compensate Fogarty and Teichman; 
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and (3) the services Fogarty and Teichman provided in attempting to probate the 2012 will were not “necessary” for purposes 

of § 30-2481 because the 2012 will was unenforceable. As we 

explain below, we agree with Fogarty and Teichman that the 

county court committed errors of law by relying on each of 

these reasons.

To the extent the county court denied fees because Teichman 

was merely a nominated personal representative and did not 

actually serve as personal representative, that was an error of 

law. It bears repeating that § 30-2481, the statute under which 

Fogarty and Teichman sought compensation, provides, “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.” (Emphasis supplied.) Section 

30-2481 expressly provides that a person that is merely nominated as a personal representative may receive from the estate 

necessary expenses and disbursements if he or she defends or 

prosecutes a proceeding in good faith, whether that effort is 

successful or not. The fact that Teichman was merely nominated as personal representative under the 2012 will was not a 

legally viable reason to deny Fogarty and Teichman’s claim for 

fees. See In re Estate of Reimer, supra.

We find that the county court also committed an error of 

law when it found that Fogarty and Teichman were not entitled 

to compensation under § 30-2481 on the grounds that there 

were insufficient funds in the probate estate. Assuming the 

funds in the probate estate were, in fact, inadequate to pay the 

compensation Fogarty and Teichman sought, the statute did not 

authorize the county court to deny the claim for that reason. 

Fogarty and Teichman sought a determination of the fees and 

expenses, that is, administration expenses, to which they were 

entitled under § 30-2481. See In re Estate of Reimer, supra. If 

a probate estate is inadequate to pay a creditor’s claims, costs 

of administration, or certain other expenses, a mechanism 
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exists for those entitled to funds from the probate estate to pursue property that the decedent placed in a revocable trust that 

was revocable at his or her death. See § 30-3850(a)(3). Even if 

there were inadequate funds in the probate estate to compensate Fogarty and Teichman, the county court was still obligated 

to determine what they were entitled to receive.

The county court seems to have concluded that Fogarty and 

Teichman did not comply with the procedural requirements 

of § 30-3850(a)(3) and thus could not have had any entitlement to compensation satisfied from the trust. The county 

court had no authority, however, to make such a determination 

in the probate proceeding. As we have already said, we have 

expressly held that a county court does not have jurisdiction in a probate proceeding to consider a petition against a 

trust under § 30-3850(a)(3). See In re Estate of Chrisp, 276 

Neb. 966, 759 N.W.2d 87 (2009). Any failure on the part of 

Fogarty and Teichman to comply with the procedural requirements of § 30-3850(a)(3) could be considered only in the trust 

proceeding.

This leaves the county court’s conclusion that none of the 

services Fogarty and Teichman provided were “necessary” 

under § 30-2481, because the 2012 will was unenforceable. 

Here, the county court appears to have concluded that the services provided were not necessary either because the 2012 will 

was unenforceable or because Fogarty and Teichman should 

have known that the 2012 will was unenforceable. We find 

either determination to be legally erroneous.

[6] As discussed above, a nominated personal representative and his or her attorney cannot be denied compensation for 

their services under § 30-2481 on the grounds that they were 

unsuccessful in defending or prosecuting a proceeding. The 

statute expressly provides that when a personal representative 

or person nominated as a personal representative defends or 

prosecutes any proceeding in good faith, “whether successful 

or not,” he or she is entitled to receive from the estate his or 

her necessary expenses including reasonable attorneys’ fees. 
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§ 30-2481 (emphasis supplied). If litigation efforts pursued 

by a personal representative and his or her attorney could be 

deemed not “necessary” under § 30-2481 simply because they 

were unsuccessful, the language providing that the personal 

representative or nominated personal representative is entitled 

to receive funds from the estate “whether successful or not” 

would be read out of the statute. It is not within the province 

of the courts to read a meaning into a statute that is not there 

or to read anything direct and plain out of the statute. Seivert 

v. Alli, 309 Neb. 246, 959 N.W.2d 777 (2021). The mere fact 

that the 2012 will was found to be unenforceable was not, in 

itself, a legally valid basis to deny Teichman’s claim for fees 

and expenses.

We also believe the county court committed an error of law 

to the extent it concluded that because Fogarty and Teichman 

should have known that the 2012 will was unenforceable, the 

services provided were not “necessary” under § 30-2481. As 

we have emphasized, that statute provides that a personal representative or nominated personal representative is entitled to 

receive from the estate “necessary expenses and disbursements 

including reasonable attorneys’ fees incurred” for defending or 

prosecuting a proceeding in good faith. § 30-2481. We have 

previously interpreted “good faith” in § 30-2481 to refer to 

“honesty in fact concerning conduct or a transaction” and clarified that a person can act in good faith despite “mere negligence or an honest mistake.” In re Estate of Watkins, 243 Neb. 

583, 590, 501 N.W.2d 292, 296 (1993).

In our view, the language of § 30-2481 is most sensibly 

understood as providing that if a personal representative or 

nominated personal representative prosecutes or defends a 

proceeding in good faith, he or she is entitled to receive compensation from the estate for those expenses and disbursements that were reasonably needed to defend or prosecute that 

proceeding. As we understand it, the word “necessary” limits 

the expenses that can be recovered to those that were required 

to pursue the litigation position in the proceeding at issue. 
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We see no basis to conclude that it allows the county court to 

deny fees because it finds that the personal representative or 

nominated personal representative who prosecuted or defended 

proceedings in good faith should have known that the litigation 

position it took lacked merit.

We find confirmation in this understanding of § 30-2481 

by comparing it to similar statutes from other states. Section 

30-2481 mirrors Unif. Probate Code § 3-720, 8 (part II) U.L.A. 

228 (2013). Many other states have enacted statutes that are 

very similar to this provision of the Uniform Probate Code, but 

with a key addition. Maryland, to take one illustrative example, 

has a statute that provides, “A personal representative or person 

nominated as personal representative who defends or prosecutes a proceeding in good faith and with just cause shall be 

entitled to receive necessary expenses and disbursements from 

the estate regardless of the outcome of the proceeding.” Md. 

Code Ann., Est. & Trusts § 7-603 (West 2019) (emphasis supplied). Several other states have similar statutes that also make 

a personal representative’s or nominated personal representative’s right to compensation from the estate for prosecuting or 

defending proceedings regarding a will depend on a showing 

that he or she pursued the proceedings in good faith and with 

just cause. See, e.g., Iowa Code § 633.315 (2021); Kan. Stat. 

Ann. § 59-1504 (2021).

[7] Those states that have added a “just cause” provision 

to their statutes similar to § 30-2481 have, by that addition, 

authorized courts to deny compensation to a personal representative or nominated personal representative who should 

have known that he or she was pursuing a litigation position 

that lacked merit. In contrast to these statutes, § 30-2481 does 

not include a reference to “just cause” or any similar concept. 

Under § 30-2481, a personal representative or nominated personal representative is entitled to receive compensation if he 

or she prosecutes or defends a proceeding in good faith. The 

intent of the Legislature is expressed by omission as well as by 

inclusion. Nelssen v. Ritchie, 304 Neb. 346, 934 N.W.2d 377 
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(2019). While perhaps a policy argument could be made that 

a personal representative or nominated personal representative 

should not be able to recover expenses incurred in pursuit of a 

litigation position that he or she should know is meritless, we 

find our Legislature, unlike that of some other states, has not 

adopted such a policy.

To be clear, it is not our view that the objective merits of a 

legal position taken by a personal representative or nominated 

personal representative could never be relevant to a determination of whether he or she, in the words of § 30-2481, 

“defend[ed] or prosecute[d] [a] proceeding in good faith.” 

While we have interpreted “good faith” in the context of 

§ 30-2481 to refer to the subjective mindset of the personal 

representative or nominated personal representative, see In re 

Estate of Watkins, 243 Neb. 583, 501 N.W.2d 292 (1993), we 

believe the objective merits of a legal position could be relevant to whether a person pursued it with an honest belief in 

its validity. See, e.g., Enders v. Parker, 66 P.3d 11, 17 (Alaska 

2003) (concluding that in making findings concerning good 

faith under statute similar to § 30-2481, court should consider 

whether nominated personal representative had “reasonably 

arguable grounds” to challenge will). In this case, however, the 

county court did not find that the lack of a reasonable basis 

to contend that the 2012 will was enforceable was merely 

evidence of the absence of good faith; it found that because 

Fogarty and Teichman should have known the 2012 will was 

unenforceable, they were not entitled to compensation. As we 

have explained, this was legally erroneous.

(c) Marlys’ Arguments for Affirmance

We have said very little to this point about Marlys’ arguments regarding the county court’s denial of Fogarty and 

Teichman’s claim for fees and expenses incurred after Pearl’s 

death. That is because, for the most part, Marlys does not argue 

that the county court’s reasons for denying their claim were 

correct. Instead, Marlys argues that the county court’s decision 

should be affirmed for other reasons.
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Marlys’ arguments for affirming the county court’s denial of 

the claim for fees and expenses Fogarty and Teichman incurred 

after Pearl’s death fall into several categories. She argues that 

they should not receive compensation because their efforts did 

not benefit the estate. She argues they should not receive compensation because Fogarty pursued his own interest, sought to 

punish Paul, and violated his duties as an attorney and because 

Fogarty and Teichman disfavored the true beneficiaries and 

violated their duty to the estate. Finally, she argues that certain 

efforts undertaken by Fogarty and Teichman were not necessary. As we will explain, we disagree with Marlys that we can 

affirm the county court’s order on any of these bases.

We begin by addressing Marlys’ argument that we should 

affirm the county court’s order on the grounds that the efforts 

of Fogarty and Teichman did not benefit the estate. In In re 

Estate of Watkins, we rejected an argument that county courts 

could consider “‘benefit to the estate’ as a judicially fashioned 

criterion to determine whether a personal representative may 

receive compensation for services rendered.” 243 Neb. at 588, 

501 N.W.2d at 296. We observed that a personal representative’s or nominated personal representative’s entitlement to 

compensation was controlled by statute and that those statutes 

contained no requirement that the services be a benefit to 

the estate.

Marlys argues, without referencing our decision in In re 

Estate of Watkins, that if the efforts of a personal representative 

or nominated personal representative do not benefit the estate, 

he or she is not entitled to compensation. For support, she 

relies on In re Estate of Odineal, 220 Neb. 168, 368 N.W.2d 

800 (1985), contending that in that case, we affirmed a county 

court’s denial of compensation to a personal representative 

because he was pursuing his own interests rather than those of 

the estate. Although we found that the county court did not err 

in denying compensation in that case, we did so after finding 

that the county court did not err in concluding the personal 

representative did not act in good faith. We reject Marlys’ 
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argument that a court can deny a claim for fees and expenses 

filed under § 30-2481 merely because the efforts of the personal representative or nominated personal representative were 

not a benefit to the estate.

In her next category of arguments, Marlys contends that the 

county court order should be affirmed because Fogarty and 

Teichman, particularly Fogarty, were attempting to probate 

the 2012 will, not because they believed it was enforceable, 

but because they wanted to increase their own compensation 

and punish Paul. As just mentioned above, we held in In re 

Estate of Odineal that the county court did not err by finding 

that a nominated personal representative who pursued legal 

action solely to generate a fee—and therefore did not act in 

good faith—was not entitled to compensation under § 30-2481. 

Although the absence of good faith is a basis upon which a 

court could deny compensation to a nominated personal representative who prosecuted or defended legal proceedings, it is 

not, given the county court’s findings, a basis upon which we 

could affirm in this case.

[8] An argument could be made that the county court affirmatively found in this case that Fogarty and Teichman did act in 

good faith. In its 2020 order, the county court stated that it “did 

not rule that Fogarty and Teichman acted in bad faith as the 

evidence was insufficient to prove the same” and that Fogarty 

and Teichman “believed [that] they had a duty to pursue the 

[2012] will and that they proceeded in good faith.” If the 

county court had affirmatively rejected Marlys’ contention that 

Fogarty and Teichman did not act in good faith, we could not 

consider an argument by Marlys that such a determination was 

erroneous. An appellee’s argument that a lower court’s decision 

should be upheld on grounds specifically rejected below constitutes a request for affirmative relief, and the appellee must 

cross-appeal in order for that argument to be considered. Weber 

v. Gas ’N Shop, 278 Neb. 49, 767 N.W.2d 746 (2009). Marlys 

did not file a cross-appeal in this case.
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Although certain language in the county court’s 2020 order 

might be read to suggest the county court found that Fogarty 

and Teichman acted in good faith, we ultimately conclude that 

it did not reach that issue. The county court did not expressly 

state that it found Fogarty and Teichman acted in good faith for 

purposes of § 30-2481, and it was not necessary for the county 

court to make such a determination, because it denied compensation for other reasons. But even though we find that the 

county court did not reach the question of whether Fogarty and 

Teichman acted in good faith, it would not be appropriate for 

this appellate court, in reviewing the county court’s decision 

for error appearing on the record, to make a factual finding 

about whether Fogarty and Teichman acted in good faith before 

the county court has passed on the question. See Weber v. Gas 

’N Shop, supra. That is a determination that must be made by 

the county court on remand. See Darling Ingredients v. City of 

Bellevue, 309 Neb. 338, 960 N.W.2d 284 (2021).

Finally, Marlys argues that we should affirm the county 

court’s order denying compensation to Fogarty and Teichman 

because various actions they took were not necessary. We 

have explained above that we do not understand § 30-2481 to 

allow the county court to find that fees and expenses were not 

necessary because they were incurred in litigation efforts that 

were unsuccessful or in litigation efforts that the personal representative or nominated personal representative should have 

known would be unsuccessful. A personal representative or 

nominated personal representative could, however, prosecute 

or defend proceedings in good faith and still seek compensation for actions that were not necessary to that effort. The 

county court’s 2020 order alluded to its concern that certain 

actions undertaken by Fogarty and Teichman were not necessary to probating the 2012 will. The county court has not, however, made a determination as to the necessity of the claimed 

expenses, and, as with the determination of whether Fogarty 

and Teichman acted in good faith, it would not be appropriate 

for this court to make that determination in the first instance. 
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That too is a determination that must be made, if necessary, by 

the county court on remand. See Darling Ingredients, supra.

(d) Summary

To summarize our conclusions regarding the county court’s 

denial of compensation for Fogarty and Teichman’s activities 

after Pearl’s death, we find that the county court’s reasons for 

denying compensation were legally erroneous. Additionally, we 

find that while there may be other reasons to deny Fogarty and 

Teichman’s claim for fees and expenses incurred after Pearl’s 

death either in whole or in part, it would not be appropriate for 

this court to determine whether it would be appropriate to do so 

in the first instance. Accordingly, we reverse the county court’s 

denial of compensation to Fogarty and Teichman for actions 

taken after Pearl’s death and remand the cause for the county 

court to determine, in light of this opinion and on the existing 

record, whether and to what extent Fogarty and Teichman are 

entitled to compensation for those actions.

3. Remaining Requests for Relief

In addition to their challenges to the county court’s order 

regarding fees and expenses, Fogarty and Teichman assign that 

the county court erred in not declaring that “all claims of Paul 

and Marlys[] (a) are without merit” and “(b) are res judicata 

and/or claim precluded against [Fogarty] and [Teichman] by 

them or any person in privity with them.” (Emphasis omitted.) They ask that we issue a declaration stating that all “ad 

homine[m] slanders” in claims and defenses by Paul and 

Marlys are without merit and precluding all claims or theories that Paul, Marlys, and anyone in privity with them may 

have against Fogarty and Teichman. Brief for appellants at 36 

(emphasis omitted).

Even if this court could extend the affirmative relief Fogarty 

and Teichman request, we cannot discern a meaningful legal 

argument in their brief as to why it would be justified. Fogarty 

and Teichman allude to the doctrine of claim preclusion, but 

they do not explain how it applies in this particular case. 
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Consequently, they have made no showing that the relief they 

seek is warranted.

V. CONCLUSION

We reverse the county court’s denial of compensation for 

Fogarty’s and Teichman’s activities after Pearl’s death and 

remand the cause for the county court to determine, on the 

existing record, whether and to what extent they are entitled 

to their fees and expenses during that period. We otherwise 

affirm.

Affirmed in part, and in part reversed 

and remanded with directions.