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311 Nebraska Reports

IN RE ESTATE OF ANDERSON

Cite as 311 Neb. 758

In re Estate of Carroll M. Anderson, deceased. 

Krystal J. Collins, individually and as Personal 

Representative of the Estate of Carroll M. 

Anderson, appellee, v. Roger D. Anderson 

and Carol J. Noble, appellants.

___ N.W.2d ___

Filed June 10, 2022. No. S-21-864.

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. Statutes. Statutory interpretation is a question of law.

3. Judgments: Appeal and Error. When reviewing questions of law, 

an appellate court resolves the questions independently of the lower 

court’s conclusions.

4. Jurisdiction: Final Orders: Appeal and Error. 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.

5. Decedents’ Estates. A proceeding under the Nebraska Probate Code is a 

special proceeding.

6. Final Orders: Words and Phrases. A substantial right is an essential 

legal right, not a mere technical right.

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

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

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

from which an appeal is taken.

8. Final Orders. Substantial rights under Neb. Rev. Stat. § 25-1902 (Cum. 

Supp. 2020) include those legal rights that a party is entitled to enforce 

or defend.

9. Final Orders: Appeal and Error. Having a substantial effect on a 

substantial right depends most fundamentally on whether the right 

Nebraska Supreme Court Online Library

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could otherwise effectively be vindicated through an appeal from the 

final judgment.

10. Decedents’ Estates: Final Orders: Appeal and Error. An order denying a request pursuant to Neb. Rev. Stat. § 30-2457 (Reissue 2016) for 

appointment of a special administrator and a concurrent request under 

§ 30-2457 for an order restraining the personal representative is a final, 

appealable order.

11. Decedents’ Estates: Wills: Courts: Jurisdiction. The fact that a district 

court has obtained, via the transfer of the will contest under Neb. Rev. 

Stat. § 30-2429.01 (Cum. Supp. 2020), “jurisdiction over the proceeding 

on the contest” does not divest the county court of its original jurisdiction in probate to protect the estate during the pendency of that will 

contest by considering the merits of a petition for a special administrator 

and request for a restraining order on the personal representative.

Appeal from the County Court for Boone County: Stephen 

R.W. Twiss, Judge. Reversed and remanded for further 

proceedings.

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

for appellants.

Keith A. Harvat, of Houghton, Bradford & Whitted, P.C., 

L.L.O., and Jeffrey C. Jarecki, of Jarecki, Sharp & Petersen, 

P.C., L.L.O., for appellee.

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

Papik, and Freudenberg, JJ.

Freudenberg, J.

INTRODUCTION

In a probate action, the county court denied a petition by 

the adult children of the decedent asking for appointment of a 

special administrator and for an order restraining the personal 

representative during the pendency of a will contest that had 

been transferred to district court. The court denied the petition 

on the grounds that the transfer of the will contest to district 

court divested it of jurisdiction. The adult children appeal. We 

reverse, and remand for further proceedings.
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Cite as 311 Neb. 758

BACKGROUND

The underlying probate proceedings were commenced when 

Krystal J. Collins filed an application for informal probate of 

will, appointing herself personal representative of the estate 

of Carroll M. Anderson (the decedent), whose estate was 

worth at least $700,000. The estate included real estate of an 

approximate value of $361,000. The remainder of approximately $341,000 consisted of payable-upon-death accounts 

naming Collins as the beneficiary. The submitted will expressly 

disinherited the decedent’s children, Roger D. Anderson and 

Carol J. Noble. It devised most of the estate to Collins and 

appointed Collins as personal representative. The date of death 

of the decedent was January 31, 2021. The submitted will was 

executed on January 27.

The county court granted Collins’ application and issued the 

letters of personal representative as evidence of the appointment. Anderson and Noble thereafter objected to the informal 

probate and to Collins’ appointment. Anderson and Noble 

alleged that the decedent lacked testamentary capacity, Collins’ 

misconduct or inappropriate action caused the decedent to sign 

the will, and the decedent was under undue influence when he 

executed the 2021 will.

On June 7, 2021, they offered for formal probate a prior 

will, executed in 2002, under which Anderson and Noble were 

to inherit the residue of the decedent’s estate. Anderson and 

Noble alleged they were concerned that Collins would use the 

estate’s assets during the pendency of the will contest. In the 

same filing, Anderson and Noble formally petitioned the court 

to set aside the informal probate and appointment of Collins, 

for an order determining the administration of the estate to be 

unsupervised, for an order under Neb. Rev. Stat. § 30-2425 

(Reissue 2016) restraining Collins from acting as personal 

representative, for appointment of Noble as personal represent

ative, for appointment of Noble or another suitable person as 

special administrator, for a decree that the 2021 will was not 

valid, and for formal probate of the 2002 will.
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Cite as 311 Neb. 758

The following day, on June 8, 2021, before any hearing 

was held or the court had ruled on the requests, Anderson and 

Noble filed a notice of transfer to district court, pursuant to 

Neb. Rev. Stat. § 30-2429.01 (Cum. Supp. 2020). The notice 

set forth that they had filed the fees required by statute and 

requested that the clerk of the county court transmit the docket 

fee and record to the district court within 10 days.

Sixteen days later, the parties were given a notice of a 

hearing to be held in county court on Anderson and Noble’s 

requests for appointment of a special administrator and a 

restraining order. The hearing was held on August 5, 2021. 

At the hearing, the parties contested, as a threshold matter, 

whether the transfer of the will contest to district court divested 

the county court of jurisdiction to enter the orders.

The hearing proceeded before resolving the jurisdictional 

question, which the court stated would be addressed in its 

order. Anderson and Noble argued that the payable-on-death 

beneficiary accounts created a conflict of interest supporting the appointment of a special administrator. Anderson and 

Noble presented evidence at the hearing pertaining to the will’s 

validity, as well as evidence pertaining to their contentions that 

Collins had not fully accounted for the estate’s assets and that 

she might dissipate estate assets during the pendency of the 

will contest.

In an October 1, 2021, order, the county court found that 

Anderson and Noble’s petition commenced a formal testacy 

proceeding under § 30-2425 and that their notice of transfer 

pursuant to § 30-2429.01(1) effectuated a transfer of jurisdiction “over the proceedings on the contest” to the district court. 

The court concluded that as a result, it lacked jurisdiction to 

rule on the requests to appoint a special administrator and for 

a restraining order.

Relying on In re Estate of Miller,

 1 the court reasoned that 

when a will contest is transferred pursuant to § 30-2429.01, 

1 In re Estate of Miller, 231 Neb. 723, 437 N.W.2d 793 (1989).
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the district court obtains jurisdiction over all proceedings 

related to the action and the county court has no authority over the matter. The court stated that such jurisdiction 

remains in the district court until a final decision is reached 

on the validity of the will and the matter is remanded to the 

county court.

ASSIGNMENTS OF ERROR

Anderson and Noble assign that the county court erred in 

(1) determining that it lacked jurisdiction over the petition for 

appointment of a special administrator and for a restraining 

order, (2) not granting their petition for a special administrator, 

and (3) not granting their petition for a restraining 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. 2

[2] Statutory interpretation is a question of law. 3

[3] When reviewing questions of law, an appellate court 

resolves the questions independently of the lower court’s 

conclusions. 4

ANALYSIS

This appeal presents two jurisdictional questions. Collins 

contends as a threshold matter that we lack appellate jurisdiction from a final order or judgment. If we have appellate jurisdiction, then we must address whether the county 

court was correct that the transfer of the will contest to 

district court divested it of jurisdiction to determine the petition requesting the appointment of a special administrator 

and an order restraining Collins. Both of these jurisdictional 

2 Nebraska Republican Party v. Shively, ante p. 160, 971 N.W.2d 128 

(2022).

3 In re Estate of Severson, 310 Neb. 982, 970 N.W.2d 94 (2022).

4 Id.
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questions involve certain rights and procedures set forth under 

the Nebraska Probate Code. 5

Statutory Scheme

The parties do not contest the county court’s determination 

that Anderson and Noble commenced a formal testacy proceeding. Formal testacy proceedings are governed by §§ 30-2425 

to 30-2438.

Section 30-2425 describes that a formal testacy proceeding is litigation to determine whether a decedent left a valid 

will and is commenced by filing a petition as described by 

§ 30-2426(a). Section 30-2425 also provides in relevant part:

Unless a petition in a formal testacy proceeding also 

requests confirmation of the previous informal appointment, a previously appointed personal representative, 

after receipt of notice of the commencement of a formal probate proceeding, must refrain from exercising 

his power to make any further distribution of the estate 

during the pendency of the formal proceeding. A petitioner who seeks the appointment of a different personal 

representative in a formal proceeding also may request an 

order restraining the acting personal representative from 

exercising any of the powers of his office and requesting 

the appointment of a special administrator. In the absence 

of a request, or if the request is denied, the commencement of a formal proceeding has no effect on the powers 

and duties of a previously appointed personal representative other than those relating to distribution.

Section 30-2438 provides that if an issue concerning the 

testacy of the decedent is, or may be, involved, a formal proceeding for adjudication regarding the priority or qualification of one who is an applicant for appointment as personal 

representative or of one who previously has been appointed 

5 See Neb. Rev. Stat. §§ 30-2201 to 30-2902 (Reissue 2016 & Cum. Supp. 

2020).
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personal representative in informal proceedings is governed by 

both §§ 30-2426 and 30-2438.

Subsection (a) of § 30-2438 provides that if a formal proceeding “for adjudication regarding the priority or qualification . . . of one who previously has been appointed personal 

representative in informal proceedings” “is commenced after 

appointment, the previously appointed personal representative, 

after receipt of notice thereof, shall refrain from exercising 

any power of administration except as necessary to preserve 

the estate or unless the court orders otherwise.” Subsection (b) 

of § 30-2438 provides that after notice to interested persons, 

including all persons interested in the administration of the 

estate as successors under the applicable assumption concerning testacy, any previously appointed personal representative, 

and any person having or claiming priority for appointment 

as personal representative, “the court shall determine who is 

entitled to appointment under section 30-2412, make a proper 

appointment and, if appropriate, terminate any prior appointment found to have been improper as provided in cases of 

removal under section 30-2454.”

Special administrators are governed by §§ 30-2457 to 

30-2461. Section 30-2457(2) sets forth that a special administrator may be appointed in a formal proceeding by order of 

the court upon a finding that “appointment is necessary to preserve the estate or to secure its proper administration including 

its administration in circumstances where a general personal 

representative cannot or should not act.” Under § 30-2460, a 

special administrator appointed by order of the court in any 

formal proceeding has the power of a personal representative 

except as limited in the appointment and duties as prescribed 

in the order.

Transfer of the will contest to district court is described in 

§ 30-2429.01. It states that if there is an objection to probate 

of a will or if a petition is filed to set aside an informal probate of a will or to prevent informal probate of a will which 
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is the subject of a pending application, then “any party may 

transfer the proceeding to determine whether the decedent 

left a valid will to the district court” by the method set forth 

therein. 6 After the clerk of the county court transmits to the 

clerk of the district court a certification of the case file and 

docket fee, the district court “shall have jurisdiction over the 

proceeding on the contest.” 7 The district court’s final decision 

and judgment on whether the decedent left a valid will is later 

transferred to the county court, “and proceedings shall be had 

thereon necessary to carry the final decision and judgment 

into execution.” 8

Final Order

[4,5] We hold that the county court’s order denying the 

petition for a special administrator and request for an order 

restraining Collins pursuant to these statutes affected a substantial right and was a final order pursuant to Neb. Rev. 

Stat. § 25-1902 (Cum. Supp. 2020). 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. 9 Section 25-1902(1)(b) defines a final order as “[a]n 

order affecting a substantial right made during a special proceeding.” A proceeding under the Nebraska Probate Code is 

a special proceeding, 10 and we have also held more specifically that a proceeding under § 30-2457 of the probate code to 

appoint a special administrator is a special proceeding. 11

6 § 30-2429.01.

7 Id.

8 Id.

9 In re Estate of Beltran, 310 Neb. 174, 964 N.W.2d 714 (2021).

10 Id.

11 See In re Estate of Abbott-Ochsner, 299 Neb. 596, 910 N.W.2d 504 

(2018).
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[6-9] A substantial right is an essential legal right, not a 

mere technical right. 12 A substantial right is affected if an order 

affects the subject matter of the litigation, such as by diminishing a claim or defense that was available to an appellant before 

the order from which an appeal is taken. 13 It is not enough 

that the right itself be substantial; the effect of the order on 

that right must also be substantial. 14 Substantial rights under 

§ 25-1902 include those legal rights that a party is entitled to 

enforce or defend. 15 Having a substantial effect on a substantial 

right depends most fundamentally on whether the right could 

otherwise effectively be vindicated through an appeal from the 

final judgment. 16 A substantial right under § 25-1902 is not 

affected when that right can be effectively vindicated in an 

appeal from the final judgment. 17

The purpose of a special administrator is “to preserve the 

estate or to secure its proper administration including its 

administration in circumstances where a general personal representative cannot or should not act.” 18 The statutory prohibition on distributing the estate during the pendency of the petition in a formal testacy is expressly contemplated by § 30-2425 

to be in conjunction with the possible request for the appointment of a special administrator. Likewise, when a party seeks 

adjudication regarding priority or qualification of a personal 

representative previously appointed in informal proceedings, 

the restriction of § 30-2438(a) that “the previously appointed 

personal representative, after receipt of notice thereof, shall 

refrain from exercising any power of administration except 

12 In re Estate of Beltran, supra note 9.

13 Id.

14 Id.

15 Id.

16 Jennifer T. v. Lindsay P., 298 Neb. 800, 906 N.W.2d 49 (2018).

17 In re Estate of Beltran, supra note 9.

18 § 30-2457(2).
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as necessary to preserve the estate or unless the court orders 

otherwise” operates together with a request for appointment 

of a special administrator. As we explained in In re Estate of 

Cooper,

 19 taken together, § 30-2454 provides that a personal 

representative shall not act except in limited circumstances 

during the pendency of a petition to remove the personal representative, while § 30-2457 provides for appointment of a special administrator to preserve the estate and secure its proper 

administration while the personal representative cannot do so 

because of the restrictions of § 30-2454.

We held in In re Estate of Muncillo 20 that an order denying 

the appointment of a special administrator is a final, appealable 

order. In re Estate of Muncillo involved a dispute in formal 

probate about whether certain payable-on-death accounts were 

part of the estate. We explained that if a probate court wrongfully denies the application to appoint a special administrator, 

the petitioner’s right to have a special administrator appointed 

cannot be effectively vindicated on appeal from a later final 

judgment. This is because the probate of an estate can remain 

open for years and the special administrator cannot go back in 

time and preserve or administer the estate long after the application has been denied. 21

[10] A request for an order restraining the personal representative is intertwined with a request for a special administrator, and the harm that could be caused by the denial of 

such a request can similarly not later be undone. Recently, in 

In re Estate of Lakin,

 22 we relied on In re Estate of Muncillo 

to hold to be final an order denying a petition for suspension, removal, and surcharge of the personal representatives 

19 In re Estate of Cooper, 275 Neb. 322, 746 N.W.2d 663 (2008). See, also, 

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

20 In re Estate of Muncillo, 280 Neb. 669, 789 N.W.2d 37 (2010).

21 See id.

22 In re Estate of Lakin, 310 Neb. 271, 965 N.W.2d 365 (2021).
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and for appointment of successor copersonal representatives 

or a special administrator. We hold that an order denying a 

request pursuant to § 30-2457 for appointment of a special 

administrator and a concurrent request under § 30-2457 for an 

order restraining the personal representative is a final, appealable order.

We are unpersuaded by Collins’ argument that the order 

at issue is not final because Anderson and Noble are “clearly 

disinherited.” 23 This argument conflates the question of finality 

with an underlying issue that is still pending before the district 

court on the will contest.

Collins’ reliance on our decision in In re Estate of Beltran 24

to argue that the county court’s order did not affect a substantial right because the order did not end a discrete phase 

of the proceedings and because the dispute involves money 

rather than real or personal property is misplaced. We held 

in In re Estate of Beltran that an order effectively denying 

discovery, which denied an attempt at that time to determine 

what monetary assets should be included in the estate, was not 

a final order because the rights affected could effectively be 

vindicated in an appeal from the final inventory. In re Estate 

of Beltran did not involve the denial of a petition to appoint a 

special administrator and restrain the personal representative 

during a will contest. In In re Estate of Muncillo, the order 

denying the petition to appoint a special administrator was 

final despite the underlying dispute involving only monetary 

assets. 25 Furthermore, we did not reason therein that the order 

represented the closure of a discrete phase of the proceedings, 

which is but one consideration in determining whether it is 

final under § 25-1902. In re Estate of Muncillo is apposite and 

controlling over the case at bar.

23 Brief for appellee at 14.

24 In re Estate of Beltran, supra note 9.

25 See In re Estate of Muncillo, supra note 20.
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County Court Jurisdiction

Having determined that we have appellate jurisdiction, we 

consider whether the county court correctly determined that 

the transfer of the will contest to district court divested it of 

jurisdiction to consider the merits of Anderson and Noble’s 

requests for a special administrator and restraining order during the pendency of that contest. We hold that the county 

court erred.

Recently, in Bohling v. Bohling,

 26 we explained that the matter over which the district court has jurisdiction in a transfer 

under § 30-2429.01 is limited. In Bohling, we addressed an 

appeal from an order of the district court determining that the 

originally submitted will for probate was valid and certifying 

its judgment to the county court. We noted that although the 

parties presented arguments on appeal pertaining to the meaning of the will, our appellate review was confined to whether 

the court erred on the question of the will’s validity—because 

that was the narrow question over which the district court 

had jurisdiction under the transfer. 27 In so stating, we relied 

on the language of § 30-2429.01 which provides that the 

district court’s authority over the proceedings is limited to 

“determin[ing] whether the decedent left a valid will” and that 

the district court has “jurisdiction over the proceeding on the 

contest.” We held that under this statute, “[a]ny issues regarding construction of the will are properly left to the probate 

court, except where they bear on the will’s validity.” 28

Previously, in In re Estate of Sehi,

 29 the Nebraska Court 

of Appeals, in holding that the supersedeas bond requirement was mandatory whether the will contest was heard in 

county court or in district court, reasoned that the matter is 

26 Bohling v. Bohling, 309 Neb. 625, 962 N.W.2d 224 (2021).

27 See id.

28 Id. at 635, 962 N.W.2d at 231.

29 In re Estate of Sehi, 17 Neb. App. 697, 772 N.W.2d 103 (2009).
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not submitted to the district court’s general jurisdiction to 

hear an entire case or controversy when a will contest is transferred to district court under the provisions of § 30-2429.01. 

Instead, “a will contest heard in district court is actually 

part of the overall probate proceeding in county court.” 30

The Court of Appeals stated that the statutory power of the 

district court to hear a will contest pursuant to § 30-2429.01 

“is limited to determining that matter alone and the rest of 

the probate proceeding remains in the jurisdiction of the 

county court.” 31

[11] Accordingly, the fact that a district court has obtained, 

via the transfer of the will contest under § 30-2429.01, “jurisdiction over the proceeding on the contest” does not divest the 

county court of its original jurisdiction in probate to protect 

the estate during the pendency of that will contest by considering the merits of a petition for a special administrator and 

request for a restraining order on the personal representative.

The statements in In re Estate of Miller that were relied on by 

the county court must be read in the context of the holding 

in that case, which was that the county court lacked jurisdiction to tax costs and fees specifically relating to the allegedly 

vexatious will contest that had been transferred to the district 

court. 32 We said in that context that “[w]hen a will contest 

is transferred pursuant to [§ 30-2429.01], the district court 

obtains jurisdiction over all proceedings related to the action”; 

“[j]urisdiction remains with the district court until a final decision is reached as to the will’s validity and the case remanded 

to the county court”; and “[o]nce the contest is transferred to 

the district court, the county probate court has no authority 

over the matter other than to carry out the district court’s final 

decision after remand.” 33

30 Id. at 706, 772 N.W.2d at 109.

31 Id. (emphasis supplied).

32 See In re Estate of Miller, supra note 1.

33 Id. at 729, 437 N.W.2d at 797.
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We disapprove of In re Estate of Miller to the extent it could 

be read as suggesting that during the pendency of a will contest proceeding transferred to district court, the county court is 

divested of its original jurisdiction over the administration of 

a probate estate outside the contours of the will contest proceeding. We will not delineate here what hypothetical matters 

might lie outside the contours of a transferred will contest in 

another case, but hold that the matters submitted by Anderson 

and Noble laid outside the boundaries of the will contest. Thus, 

the county court was not divested of jurisdiction to decide 

those matters.

CONCLUSION

Although the parties dispute the underlying merits of 

Anderson and Noble’s petition for a special administrator and 

request for a restraining order on the personal representative, 

we will not decide those matters for the first time on appeal 

when they were not decided by the county court because of 

its erroneous belief that it lacked jurisdiction. We reverse 

the order of the county court and remand the cause for further proceedings.

Reversed and remanded for 

further proceedings.