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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

IN RE ESTATE OF SEVERSON

Cite as 310 Neb. 982

In re Estate of Ryan Severson, deceased.

Don Feik, appellee, v. Diane Kelly, now known as 

Diane Schubert, Personal Representative of 

the Estate of Ryan Severson, appellant.

___ N.W.2d ___

Filed February 18, 2022. No. S-21-321.

1. Jurisdiction: Appeal and Error. A jurisdictional question that 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: Appeal and Error. 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.

5. 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.

6. Decedents’ Estates: Final Orders: Appeal and Error. In probate 

proceedings, an appellate court applies the rubric of Neb. Rev. Stat. 

§ 25-1902 (Cum. Supp. 2020) to determine whether an order is final. 

The relevant questions are whether the order was made during a special 

proceeding and affected a substantial right.

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

special proceeding.

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

legal right, not a mere technical right.

9. 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.

Nebraska Supreme Court Online Library

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

04/15/2022 12:08 AM CDT
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Nebraska Supreme Court Advance Sheets

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IN RE ESTATE OF SEVERSON

Cite as 310 Neb. 982

10. 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.

11. Decedents’ Estates: Final Orders. A consideration regarding the finality of orders in probate cases is whether the order ended a discrete—that 

is, separate and distinct—phase of the proceedings.

12. Decedents’ Estates. One who is not willing to serve as a personal representative cannot be compelled to accept such an appointment.

13. ____. Without acceptance by one appointed personal representative, 

there can be no qualification.

14. ____. The Nebraska Probate Code requires qualification of a personal 

representative before the issuance of letters.

15. Courts: Judgments. In the absence of an actual case or controversy 

requiring judicial resolution, it is not the function of the courts to render 

a judgment that is merely advisory.

16. Statutes: Appeal and Error. Statutory language is to be given its plain 

and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous.

17. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

Appeal from the County Court for Franklin County: 

Timothy E. Hoeft, Judge. Reversed and remanded for further 

proceedings.

Nicholas R. Norton and Elizabeth J. Klingelhoefer, of 

Jacobsen, Orr, Lindstrom & Holbrook, P.C., L.L.O., for 

appellant.

Daniel J. Thayer, of Thayer & Thayer, P.C., L.L.O., for 

appellee.

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

Papik, and Freudenberg, JJ.

Cassel, J.

INTRODUCTION

Over 3 years after a decedent’s death, an estate was opened 

for the purpose of serving a lawsuit against the decedent. 
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310 Nebraska Reports

IN RE ESTATE OF SEVERSON

Cite as 310 Neb. 982

The probate court appointed the decedent’s mother as personal representative, ordered that letters be issued to her, and 

issued such letters even though the mother had not accepted 

the appointment. Because the issuance of letters of personal representative was an unauthorized action without the 

appointee’s qualification, we reverse, and remand for further 

proceedings.

BACKGROUND

On March 1, 2021, Don Feik filed in the county court for 

Franklin County an application for informal appointment of 

a personal representative in intestacy. The application alleged 

that Ryan Severson died on March 26, 2017; that no personal 

representative had been appointed; and that Feik was unaware 

of any unrevoked testamentary instrument of Severson’s relating to property in Nebraska. Feik alleged that as a creditor 

of Severson’s estate, he was an interested person under the 

Nebraska Probate Code. 1 Feik nominated Severson’s mother, 

Diane Kelly, now known as Diane Schubert (Kelly), as personal representative. He alleged that Kelly had priority for 

appointment and that there were no other persons having an 

equal or prior right to appointment. Feik further alleged that 

“[n]o bond is required because the Personal Representative will 

not come into possession of funds and this estate is established 

for the sole purpose of naming the Personal Representative of 

the estate as a Defendant in an auto collision case in Kearney 

County, Nebraska.”

Kelly objected to the application for informal appointment 

of a personal representative and asked the court to dismiss it. 

She asserted that because more than 3 years had passed since 

Severson’s death, an appointment proceeding could not be 

commenced under Neb. Rev. Stat. § 30-2408 (Reissue 2016). 

She alleged that the court generally lacked jurisdiction to hear 

such a claim.

1 See Neb. Rev. Stat. § 30-2209(21) (Reissue 2016) (defining “interested 

person”).
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310 Nebraska Reports

IN RE ESTATE OF SEVERSON

Cite as 310 Neb. 982

Following a hearing, the probate court entered a March 

23, 2021, order on application for appointment of personal 

representative. According to the order, Feik filed the application “because of a claim that arose against the estate of . . . 

Severson for injuries that occurred from an automobile accident.” The court stated that granting dismissal as requested 

by Kelly “would be contrary to its decision in the [Kearney 

County] civil case and would create an absurd result.” The 

court therefore allowed informal probate to proceed and 

appointed Kelly as personal representative “for the purpose of 

receiving service of the civil action filed in Kearney County.” 

The court waived requirements of the personal representative 

with regard to publication of notice to creditors and the filing 

of an inventory.

Also on March 23, 2021, the court signed and filed a statement of informal appointment of personal representative in 

intestacy. It recited that it appeared all requirements of the 

Nebraska Probate Code had been satisfied. The statement 

further detailed that Kelly was “informally appoint[ed] . . . as 

Personal Representative of [Severson’s] estate in unsupervised 

administration, and Letters shall be issued to said Personal 

Representative to serve without bond.” That same day, the 

court issued letters of personal representative to Kelly.

On April 22, 2021, Kelly appealed. We moved the case to 

our docket. 2

ASSIGNMENTS OF ERROR

Kelly assigns, restated and reordered, that the probate court 

erred in (1) appointing her as personal representative of the 

estate in the absence of jurisdiction to make the appointment 

and when she objected to and did not accept the appointment, (2) allowing the application to proceed when it was 

filed outside of the 3-year statute of limitations and was not 

limited to the recovery of expenses of administration only, 

(3) allowing the application to proceed in the absence of any 

2 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).
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IN RE ESTATE OF SEVERSON

Cite as 310 Neb. 982

allegations that the informal probate would be opened for 

purposes limited to recovering liability insurance, (4) finding 

that not allowing the application would be contrary to law 

and create an “absurd result,” and (5) finding that the savings 

clause of Neb. Rev. Stat. § 25-201.01 (Reissue 2016) applied 

to an amended complaint in the Kearney County case when the 

plaintiffs in that case failed to properly commence an action 

within the applicable statute of limitations and when no “new 

action” was commenced.

STANDARD OF REVIEW

[1,2] A jurisdictional question that does not involve a factual 

dispute is determined by an appellate court as a matter of law. 3

Statutory interpretation is a question of law. 4

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

resolves the questions independently of the lower court’s 

conclusions. 5

ANALYSIS

We begin by emphasizing that the Kearney County civil 

case is not before us in this appeal. At oral arguments, the 

parties seemed to agree that no aspect of the Kearney County 

case is final or appealable at this time. We consider only the 

appointment orders and letters of personal representative from 

the Franklin County probate case. Although some documents 

from the Kearney County case were judicially noticed during 

the March 22, 2021, Franklin County probate hearing but were 

not included in the Franklin County Court’s bill of exceptions, those documents are unnecessary to the limited issues 

before us. 6

3 In re Estate of Beltran, ante p. 174, 964 N.W.2d 714 (2021).

4 See In re Estate of Giventer, ante p. 39, 964 N.W.2d 234 (2021).

5 In re Estate of Beltran, supra note 3.

6 See In re Estate of Radford, 297 Neb. 748, 901 N.W.2d 261 (2017) (bill 

of exceptions is only vehicle for bringing evidence before appellate 

court; evidence which is not made part of bill of exceptions may not be 

considered).
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IN RE ESTATE OF SEVERSON

Cite as 310 Neb. 982

Jurisdiction

[4,5] 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. 7 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. 8 Feik contends that the order appealed from is not a 

final order.

[6,7] In probate proceedings, an appellate court applies the 

rubric of Neb. Rev. Stat. § 25-1902 (Cum. Supp. 2020) to 

determine whether an order is final. The relevant questions are 

whether the order was made during a special proceeding and 

affected a substantial right. 9 A proceeding under the Nebraska 

Probate Code is a special proceeding. 10

[8-10] We turn our attention to whether the order affected a 

substantial right. A substantial right is an essential legal right, 

not a mere technical right. 11 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. 12

Substantial rights under § 25-1902 include those legal rights 

that a party is entitled to enforce or defend. 13

[11] 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 

7 In re Estate of Larson, 308 Neb. 240, 953 N.W.2d 535 (2021).

8 In re Estate of Beltran, supra note 3.

9 Id.

10 See id.

11 Id.

12 Id.

13 In re Estate of Larson, supra note 7.
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IN RE ESTATE OF SEVERSON

Cite as 310 Neb. 982

phase. 14 Thus, a consideration regarding the finality of orders 

in probate cases is whether the order ended a discrete—that 

is, separate and distinct—phase of the proceedings. 15 A statute provides that “a proceeding for appointment of a personal 

representative is concluded by an order making or declining 

the appointment.” 16 Here, the probate court’s order appointing 

Kelly as personal representative ended a discrete phase of the 

probate proceeding. Moreover, the appointment order coupled 

with the issuance of letters of personal representative imposed 

fiduciary duties upon Kelly. 17 Because the order was made in 

a special proceeding and affected a substantial right, it was a 

final order.

Appointment of Kelly as 

Personal Representative

We next consider Kelly’s assignment of error alleging that 

the probate court “erred in appointing [her] as personal representative of the Estate because it lacked jurisdiction to make the 

appointment, [Kelly] objected to the appointment, and [she] did 

not accept the appointment as required by Nebraska Revised 

Statute § 30-2420.” During oral arguments, Kelly’s counsel 

argued in connection with this assignment that the letters were 

not effective. We understand Kelly’s assignment of error to 

encompass a challenge to the issuance of letters of personal 

representative to an appointee who refuses to qualify.

Several probate statutes speak to qualification of a personal 

representative. One provides that “to acquire the powers and 

undertake the duties and liabilities of a personal representative 

of a decedent, a person must be appointed by order of the court 

14 Id., citing John P. Lenich, What’s So Special About Special Proceedings? 

Making Sense of Nebraska’s Final Order Statute, 80 Neb. L. Rev. 239 

(2001).

15 In re Estate of Beltran, supra note 3.

16 Neb. Rev. Stat. § 30-2407(4) (Reissue 2016).

17 See Neb. Rev. Stat. § 30-2464 (Reissue 2016).
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IN RE ESTATE OF SEVERSON

Cite as 310 Neb. 982

or registrar, qualify and be issued letters.” 18 Another specifies 

that “the registrar . . . shall appoint the applicant subject to 

qualification and acceptance.” 19 Yet another states that “[p]rior 

to receiving letters, a personal representative shall qualify by 

filing with the appointing court any required bond and a statement of acceptance of the duties of the office.” 20

The latter two statutes touch on another important component: acceptance. Acceptance of an appointment denotes 

consent to the appointment. 21 “Consent is the preliminary 

essential requirement for an appointment as an executor or 

administrator.” 22

The Utah Supreme Court addressed the necessity of consent in considering whether a court had the authority to compel an individual to serve as an administratrix against her 

will. 23 It found support for the requirement in its constitutional 

and statutory provisions: The Constitution of Utah prohibited 

“‘involuntary servitude,’” while a statute required that prior 

to issuance of letters testamentary or of administration “‘the 

executor, administrator or guardian must take and subscribe an 

oath that he will perform according to law the duties of executor, administrator or guardian, which oath must be attached to 

the letters.’” 24 The court explained the importance of appointing an individual willing to serve:

A highly personal trust arises from an appointment as 

administrator and to compel one to serve against his will 

for the benefit of those to whom he has no obligation 

18 Neb. Rev. Stat. § 30-2403 (Reissue 2016).

19 Neb. Rev. Stat. § 30-2420 (Reissue 2016).

20 Neb. Rev. Stat. § 30-2444 (Reissue 2016).

21 See “Accept,” Oxford English Dictionary Online, http://www.oed.com/

view/Entry/1006 (last visited Feb. 14, 2022) (“[t]o consent to”).

22 33 C.J.S. Executors and Administrators § 88 at 793 (2009). See Matter of 

Estate of Cluff, 587 P.2d 128 (Utah 1978).

23 See Matter of Estate of Cluff, supra note 22.

24 Id. at 129.
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IN RE ESTATE OF SEVERSON

Cite as 310 Neb. 982

would constitute a violation of public policy as well. It is 

necessary for the protection of estate heirs, creditors, and 

the general public that an administrator serve free from 

compulsion and that he only be allowed to serve when so 

willing. Generally speaking, only a willingness to serve is 

consistent with proper estate administration and the interest of the Court. 25

The Utah Supreme Court’s reasoning is persuasive. We 

need not discuss our own constitution, because our statute, as 

set forth above, requires that “a personal representative shall 

qualify by filing with the appointing court any required bond 

and a statement of acceptance of the duties of the office.” 26 A 

consequence of acceptance is contained in a different statute: 

“By accepting appointment, a personal representative submits 

personally to the jurisdiction of the court in any proceeding relating to the estate that may be instituted by any interested person.” 27

With respect to acceptance, we find some parallels in our 

recent decision concerning a guardianship. 28 There, the county 

court directed that a ward’s parents be appointed as coguardians upon issuance of letters of guardianship and upon the 

parents’ filing, among other things, an acceptance of appointment. The parents never filed an acceptance. They appealed, 

assigning that the court erred in ordering them to serve as 

guardians over their objection. We agreed with the parents that 

“one who is not willing to serve as a private guardian cannot be compelled to accept such an appointment.” 29 And we 

25 Id. at 129-30.

26 § 30-2444 (emphasis supplied). See, also, Neb. Ct. R. § 6-1446 (providing 

for appointment to be set aside where personal representative had been 

appointed but failed to qualify by filing required bond and acceptance 

within 60 days of appointment).

27 Neb. Rev. Stat. § 30-2445 (Reissue 2016).

28 See In re Guardianship of Nicholas H., 309 Neb. 1, 958 N.W.2d 661 

(2021).

29 Id. at 11, 958 N.W.2d at 668.
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IN RE ESTATE OF SEVERSON

Cite as 310 Neb. 982

stated that “[o]nly after a written acceptance is filed and the 

guardian submits to the personal jurisdiction of the court will 

letters of guardianship be issued by the court.” 30 But in that 

case, because the parents never accepted the court’s appointment, no letters issued. In rejecting the assignment of error, 

we stated that “the appointment they assign as error was never 

completed and cannot be completed without their voluntary 

acceptance.” 31

The record is devoid of any statement of acceptance filed 

by Kelly. To the contrary, she filed an objection “as nominated personal representative” to the application for informal 

appointment of personal representative in intestacy and asked 

the court to dismiss the application. At oral argument, Feik 

conceded that no acceptance had been filed by Kelly.

[12-14] As we stated with respect to a private guardian, it 

follows that one who is not willing to serve as a personal representative cannot be compelled to accept such an appointment. 

Without acceptance by one appointed personal representative, 

there can be no qualification. 32 And the Nebraska Probate Code 

requires qualification of a personal representative before the 

issuance of letters. 33 In other words, in the absence of qualification, the issuance of letters as part of the appointment process is not authorized by statute.

Here, the court issued letters to Kelly without her qualification. Because this action was not statutorily authorized, we 

reverse the order directing issuance of letters and the letters 

issued in accordance with that order, and remand the cause for 

further proceedings.

[15] We express no opinion on the validity or effect of 

any actions taken in reliance upon the letters issued to Kelly. 

30 Id.

31 Id. at 11-12, 958 N.W.2d at 669.

32 See § 30-2444.

33 See §§ 30-2403, 30-2420, and 30-2444.
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IN RE ESTATE OF SEVERSON

Cite as 310 Neb. 982

Such questions may well exist, but they are beyond the scope 

of the present probate proceeding. In the absence of an actual 

case or controversy requiring judicial resolution, it is not the 

function of the courts to render a judgment that is merely 

advisory. 34 And to the extent that the reasoning of the county 

court conveyed in an order within the probate proceeding may 

seem to express an opinion on matters outside the scope of the 

appointment proceeding itself, we reverse those portions of the 

probate court’s order.

Statute of Limitations

Kelly also argues that § 30-2408 prohibited the commencement of the appointment proceeding. The parties agree that it 

was commenced more than 3 years after Severson’s death and 

that no prior appointment or probate proceeding had occurred. 

But Kelly contends that no exception under § 30-2408 applies 

while Feik relies upon the exception in subsection (4), which 

states that “an informal . . . appointment proceeding may be 

commenced thereafter if no formal or informal proceeding for 

probate or proceeding concerning the succession or administration has occurred within the three-year period, but claims other 

than expenses of administration may not be presented against 

the estate.” We agree with Feik.

[16] The exception applies because no such proceeding 

had occurred within the 3-year period. Statutory language is 

to be given its plain and ordinary meaning, and an appellate 

court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. 35 Over a decade ago, we declared that “[§] 30-2408 

clearly permits an informal appointment proceeding to be 

commenced more than 3 years after the decedent’s death ‘if 

no formal or informal proceeding for probate or proceeding concerning the succession or administration has occurred 

34 State ex rel. Peterson v. Ebke, 303 Neb. 637, 930 N.W.2d 551 (2019).

35 In re Estate of Nemetz, 273 Neb. 918, 735 N.W.2d 363 (2007).
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IN RE ESTATE OF SEVERSON

Cite as 310 Neb. 982

within the three-year period.’” 36 Thus, a proceeding could be 

commenced here to appoint a personal representative. We read 

the clause regarding “claims other than expenses of administration” as limiting the scope of the proceeding rather than its 

commencement. 37

Remaining Assignments of Error

[17] Because we reverse the order directing issuance of letters of personal representative and remand the cause for further proceedings, we need not consider Kelly’s other assigned 

errors. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy before it. 38

CONCLUSION

Because the court’s issuance of letters of personal representative to Kelly as part of the appointment process without 

Kelly’s qualification was not authorized by statute, we reverse 

the court’s actions doing so and remand the cause for further 

proceedings.

Reversed and remanded for 

further proceedings.

36 Id. at 921, 735 N.W.2d at 367.

37 See, e.g., Ader v. Estate of Felger, 240 Ariz. 32, 375 P.3d 97 (Ariz. App. 

2016) (clause limits claims that may be brought in tardy proceeding).

38 In re Estate of Hutton, 306 Neb. 579, 946 N.W.2d 669 (2020).