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IN RE ESTATE OF LARSON

Cite as 308 Neb. 240

In re Estate of Blain Larson, deceased. 

Cindy Svoboda, Personal Representative of the 

Estate of Blain Larson, deceased, appellee, 

v. Matthew Larson, appellant.

___ N.W.2d ___

Filed January 22, 2021. No. S-20-340.

1. Jurisdiction: Appeal and Error. A jurisdictional question which does 

not involve a factual dispute is determined by an appellate court as a 

matter of law.

2. ____: ____. Before reaching the legal issues presented for review, it is 

the duty of an appellate court to determine whether it has jurisdiction 

over the appeal.

3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court 

to acquire jurisdiction of an appeal, there must be a final judgment or 

final order entered by the tribunal from which the appeal is taken.

4. Final Orders: Words and Phrases. A substantial right under Neb. Rev. 

Stat. § 25-1902 (Supp. 2019) is an essential legal right.

5. Final Orders: Appeal and Error. A substantial right is affected if an 

order affects the subject matter of the litigation, such as diminishing a 

claim or defense that was available to an appellant before the order from 

which an appeal is taken.

6. Final Orders. Substantial rights under Neb. Rev. Stat. § 25-1902 

(Supp. 2019) include those legal rights that a party is entitled to enforce 

or defend.

7. Final Orders: Appeal and Error. A substantial right is not affected 

when that right can be effectively vindicated in an appeal from the 

final judgment.

Appeal from the County Court for Colfax County: Andrew 

R. Lange, Judge. Appeal dismissed.

Nebraska Supreme Court Online Library

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

01/29/2021 01:08 AM CST
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IN RE ESTATE OF LARSON

Cite as 308 Neb. 240

Jared J. Krejci, of Smith, Johnson, Allen, Connick & Hansen, 

for appellant.

Jeffery T. Peetz, of Endacott, Peetz & Timmer, P.C., L.L.O., 

for appellee.

Miller-Lerman, Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ.

Papik, J.

Cindy Svoboda (Cindy), in her capacity as personal representative of the estate of Blain Larson, filed a formal petition 

for complete settlement of the estate. In her petition, she asked 

the county court to enter an order approving her final accounting and directing that she distribute assets of the estate in 

accordance with a proposed schedule of distribution. Blain’s 

son, Matthew Larson, objected to the proposed schedule of 

distribution, and now he appeals the county court’s dismissal 

of his objection. Because the county court has not ruled on 

Cindy’s petition, however, the phase of the probate proceedings she initiated has not concluded, and Matthew has not 

appealed from a final order. Consequently, we lack jurisdiction to address Matthew’s assigned errors, and we dismiss 

his appeal.

BACKGROUND

Blain’s Will and Will Contest 

Proceedings.

Blain died on February 19, 2017. Cindy and Matthew were 

the beneficiaries under Blain’s will, which nominated Cindy 

to serve as his personal representative. In March 2017, Cindy 

began informal probate proceedings in the county court and 

was appointed Blain’s personal representative. Matthew and 

his sister attempted to prevent informal probate and to obtain 

an order that Blain died intestate. They alleged that Blain did 

not have sufficient mental capacity to sign the will at the time 

of its execution and that the will was invalid on the grounds 

of undue influence, fraud, and duress. The matter went to 
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IN RE ESTATE OF LARSON

Cite as 308 Neb. 240

trial in the district court, and Blain’s will was determined to 

be valid.

Cindy’s Petition to Settle Estate 

and Matthew’s Objection to 

Proposal for Distribution.

On February 7, 2020, Cindy filed in the county court 

a “Formal Petition for Complete Settlement After Informal 

Testate Proceeding.” Cindy requested approval of previous 

distributions, fees and expenses she incurred as personal representative, and her final accounting. She also asked for an order 

directing distribution of the estate in accordance with the final 

accounting and a proposed schedule of distribution. Soon afterward, Cindy filed a final accounting.

On March 6, 2020, Matthew filed an objection to the proposal for distribution, citing Neb. Rev. Stat. § 30-24,104(b) 

(Reissue 2016) of the Nebraska Probate Code. The objection 

alleged that the schedule of distribution failed to properly 

apportion inheritance taxes. It further alleged that many of the 

expenses incurred by Cindy as personal representative were 

unnecessary and unreasonable and that estate funds should not 

be used to pay the attorney fees Cindy incurred in defending 

the will contest.

The county court conducted a hearing on Matthew’s objection. At the outset of the hearing, the parties and the county 

court agreed that dollar amounts pertinent to the final accounting and proposed schedule of distribution were uncertain. The 

parties suggested that if the county court ruled on the legal 

issues raised in Matthew’s objection, the parties could thereafter reach an agreement as to the appropriate distribution of 

assets. The parties then submitted evidence and argument concerning Matthew’s objection.

County Court’s Order Dismissing 

Matthew’s Objection.

On April 7, 2020, the county court entered an order rejecting the arguments made in Matthew’s objection. The county 
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court determined that the attorney fees Cindy incurred as personal representative could be paid from the estate. The county 

court also determined that Cindy properly paid certain challenged expenses from the estate. As to inheritance taxes, the 

county court found that

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 in proportion to 

the share owned by Cindy . . . and Matthew . . . should be 

reduced for [valid administration expenses] and inheritance tax.

Cindy’s Supplemental 

Final Accounting.

On April 17, 2020, Cindy filed a supplemental final 

accounting. The document stated that Cindy “accepts opposing 

counsel’s apportionment of administration expenses, funeral 

expenses, debts, taxes and claims 0.494 to Cindy . . . and 

0.506 to Matthew.” It set forth a final distribution, with 

amounts to be paid to both Cindy and Matthew. Our record 

does not contain any order of the county court approving a 

final accounting or otherwise ruling on Cindy’s petition for 

complete settlement.

Matthew filed a notice of appeal in which he stated his 

intention to appeal the county court’s April 7, 2020, order dismissing his objection to the proposed schedule of distribution.

ASSIGNMENTS OF ERROR

Matthew assigns that the county court erred in various 

respects when it dismissed his objection to Cindy’s proposed 

schedule of distribution in its April 7, 2020, order.

STANDARD OF REVIEW

[1] A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter 

of law. In re Estate of Adelung, 306 Neb. 646, 947 N.W.2d 

269 (2020).
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ANALYSIS

[2] In his objection to Cindy’s proposed schedule of distribution, Matthew argued that Cindy could not use estate funds 

to pay certain expenses. On appeal, he contends the county 

court’s order rejecting those arguments was erroneous. But 

before reaching the legal issues presented for review, it is the 

duty of an appellate court to determine whether it has jurisdiction over the appeal. In re Estate of Abbott-Ochsner, 299 

Neb. 596, 910 N.W.2d 504 (2018). Here, we conclude that we 

do not.

[3] Under Neb. Rev. Stat. § 25-1911 (Reissue 2016), for an 

appellate court to acquire jurisdiction of an appeal, there must 

be a final judgment or final order entered by the tribunal from 

which the appeal is taken. In re Interest of A.A. et al., 307 

Neb. 817, 951 N.W.2d 144 (2020). See, also, Neb. Rev. Stat. 

§ 30-1601 (Cum. Supp. 2018). Our record shows, and the parties agree, that the county court has not entered a final judgment in this case. Thus, our jurisdiction depends on whether 

Matthew has appealed from a final order.

In probate proceedings, we apply the rubric of Neb. Rev. 

Stat. § 25-1902 (Supp. 2019) to determine whether an order 

is final. See In re Estate of Gsantner, 288 Neb. 222, 846 

N.W.2d 646 (2014). As applied to this case, the relevant 

question raised by § 25-1902 is whether the order dismissing 

Matthew’s objection was “made during a special proceeding” 

and “affect[ed] a substantial right.” We have repeatedly said 

that a proceeding under the Nebraska Probate Code is a special 

proceeding. See, e.g., In re Estate of Gsantner, supra; In re 

Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012); In 

re Estate of Potthoff, 273 Neb. 828, 733 N.W.2d 860 (2007). 

If Matthew has appealed from an order that affects a substantial right, then, it is a final order and we have jurisdiction to 

review it.

[4-7] A substantial right under § 25-1902 is an essential legal right. Western Ethanol Co. v. Midwest Renewable 
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Energy, 305 Neb. 1, 938 N.W.2d 329 (2020). A substantial 

right is affected if an order affects the subject matter of the 

litigation, such as diminishing a claim or defense that was 

available to an appellant before the order from which an 

appeal is taken. Id. Substantial rights under § 25-1902 include 

those legal rights that a party is entitled to enforce or defend. 

Western Ethanol Co., supra. A substantial right is not affected 

when that right can be effectively vindicated in an appeal from 

the final judgment. In re Estate of Potthoff, supra. As one 

commentator has observed, in the context of multifaceted special proceedings that are designed to administer the affairs of a 

person, an order that ends a discrete phase of the proceedings 

affects a substantial right because it finally resolves the issues 

raised in that phase. See John P. Lenich, What’s So Special 

About Special Proceedings? Making Sense of Nebraska’s Final 

Order Statute, 80 Neb. L. Rev. 239 (2001).

Probate matters are an example of such a multifaceted 

special proceeding. Id. Therefore, in deciding whether an 

order in a probate matter affects a substantial right, we have 

considered whether the order ended a discrete phase of the 

proceedings. In In re Estate of McKillip, supra, we addressed 

the finality of an order determining that physical partition 

of real estate was not possible without great prejudice to the 

owners and ordering the referee to sell the land at public sale. 

We concluded that the order was final because the distribution 

of real estate was a discrete phase of the probate proceedings and would finally resolve the issues in that phase of the 

probate estate. We observed that postponing review would not 

serve judicial economy because it would significantly delay 

distribution of the real estate, thereby delaying completion of 

the probate of the estate. Id. See, also, In re Estate of Potthoff, 

supra (order in proceedings for computation of probate estate 

final because it completely resolved separate issue of whether 

deceased’s interest in property was part of probate estate and 

matter could not be effectively considered in appeal from 

final judgment).
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In In re Estate of Rose, 273 Neb. 490, 730 N.W.2d 391 

(2007), on the other hand, a party sought to appeal an order 

that did not end a discrete phase of the probate proceedings. 

In In re Estate of Rose, the surviving spouse of the decedent 

filed a petition in county court electing to take her elective 

share of 50 percent of the augmented estate and requesting a 

family allowance. After a hearing, the county court ordered the 

personal representative to pay the surviving spouse a monthly 

allowance and found that certain annuity contracts were part 

of the augmented estate. The county court’s order did not, 

however, finally determine the augmented estate for purposes 

of calculating the 50-percent elective share. Instead, the order 

stated that the court would retain jurisdiction to make a further determination of the augmented estate. Before the county 

court made that further determination, the personal representative appealed.

We found that we lacked appellate jurisdiction in In re 

Estate of Rose, supra. We observed that the county court’s 

award of a family allowance reduced the size of the augmented estate and its finding regarding the annuity contracts 

increased the size of the augmented estate, but that the overall 

size of the augmented estate had not yet been determined. We 

explained that the county court’s treatment of items relevant 

to the calculation of the augmented estate could be effectively 

considered in an appeal following the final establishment of 

the augmented estate. Because the determinations made by the 

county court were merely “preliminary to a complete determination of the size of the augmented estate which was the fundamental issue before the county court,” we held they did not 

affect a substantial right and were not appealable. Id. at 495, 

730 N.W.2d at 395.

Although our opinion in In re Estate of Rose did not use 

the “discrete phase” terminology we used in In re Estate of 

McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012), we understand the opinions to have applied the same concepts. As 

these opinions demonstrate, an order ending a discrete phase 
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of probate proceedings is appealable, but one that is merely 

preliminary to such an order is not.

Returning to this case, the order Matthew seeks to appeal 

did not end a discrete phase of the proceedings. Following the 

will contest proceedings, Cindy administered Blain’s estate 

informally for a time before she initiated independent formal 

proceedings to close the estate by filing a petition authorized 

by Neb. Rev. Stat. § 30-24,116 (Reissue 2016). See Neb. 

Rev. Stat. § 30-2407 (Reissue 2016) (each proceeding before 

court is independent of any other proceeding involving same 

estate). Her petition requested an order approving fees and 

expenses she claimed as personal representative, approving her 

final accounting, approving distributions previously made, and 

authorizing and directing her to distribute the estate. Citing 

§ 30-24,104(b), Matthew filed his objection to the schedule of 

distribution. He raised challenges to Cindy’s proposed distribution. Counsel for both parties acknowledged at the subsequent hearing that the evidence presented might be sufficient 

to address only the legal issues raised by Matthew’s objection, and not the amounts that should be included in the final 

accounting and proposed distribution. After the hearing, the 

county court entered an order that ruled on those legal issues 

and dismissed Matthew’s objection, but it did not enter an 

order disposing of Cindy’s petition.

The fact that the court did not dispose of Cindy’s petition 

in its order dismissing Matthew’s objection became especially 

apparent when, following that order, Cindy filed a supplemental final accounting. No order of approval or complete settlement by the county court followed, and Matthew appealed.

Statements by counsel for both parties at oral argument 

also support the conclusion that the phase of the proceedings addressing Cindy’s formal petition was not over when 

Matthew filed his appeal. Counsel for Matthew conceded 

that the county court’s order dismissing his objection gave 

guidance on issues of law but did not address what each 

party would receive in “dollars and cents.” He contended 
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that the county court’s ruling on the legal issues surrounding 

inheritance taxes was somewhat unclear and acknowledged 

that the issue would be clarified by an order approving a final 

accounting. Similarly, Cindy’s counsel suggested that if this 

court considered the merits of Matthew’s legal arguments, the 

unresolved schedule of distribution is a matter that could be 

addressed on remand.

As these statements show, the county court’s order, much 

like the order we found unappealable in In re Estate of Rose, 

273 Neb. 490, 730 N.W.2d 391 (2007), decided only some 

issues relevant to the phase of the proceedings before the court. 

That phase would not be completed, however, until the court 

entered an order disposing of Cindy’s petition. Because more 

remained to be done to end that phase, we conclude that the 

order did not affect a substantial right and that we therefore 

lack jurisdiction to consider it. To hold otherwise could invite 

the very outcomes our final order doctrine is designed to avoid: 

piecemeal review, chaos in trial procedure, and a succession of 

appeals granted in the same case to secure advisory opinions 

to govern further actions of the trial court. See In re Estate of 

Abbott-Ochsner, 299 Neb. 596, 910 N.W.2d 504 (2018).

CONCLUSION

For reasons we have explained, Matthew has not appealed 

from a final order. Accordingly, we lack jurisdiction and dismiss his appeal.

Appeal dismissed.

Heavican, C.J., not participating.