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IN RE ESTATE OF BELTRAN

Cite as 310 Neb. 174

In re Estate of Armengol 

Beltran, deceased. 

Mario Beltran, appellant, v. Marina 

Beltran-Barrett, appellee.

___ N.W.2d ___

Filed September 24, 2021. No. S-20-691.

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

an appellate court resolves the questions independently of the lower 

court’s conclusions.

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. 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.

5. Decedents’ Estates: Appeal and Error. Appellate courts have held that 

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. It is not enough that the right itself be substantial; the 

effect of the order on that right must also be substantial.

Nebraska Supreme Court Online Library

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

11/26/2021 01:10 AM CST
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9. ____. Substantial rights under Neb. Rev. Stat. § 25-1902 (Cum. Supp. 

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

or defend.

10. Final Orders: Appeal and Error. A substantial right under Neb. Rev. 

Stat. § 25-1902 (Cum. Supp. 2020) is not affected when that right can 

be effectively vindicated in an appeal from the final judgment.

11. Pretrial Procedure: Final Orders: Appeal and Error. Discovery 

orders are not generally subject to interlocutory appeals because the 

underlying litigation is ongoing and the discovery order is not considered final. However, if the discovery order affects a substantial right and 

was made in a special proceeding, it is appealable.

12. 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.

Appeal from the County Court for Lancaster County: Holly 

J. Parsley, Judge. Appeal dismissed.

J.L. Spray and Andrew R. Spader, of Mattson Ricketts Law 

Firm, for appellant.

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

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

Papik, and Freudenberg, JJ.

Heavican, C.J.

INTRODUCTION

In this probate case, Mario Beltran’s “Verified Petition for 

Instruction” referencing Neb. Rev. Stat. § 30-402 (Reissue 

2016) was denied. He appeals. The issues on appeal are, first, 

whether the order denying the petition was final and appealable 

and if so, second, whether the probate court erred in denying 

Mario’s petition. We dismiss Mario’s appeal for the lack of a 

final, appealable order.

BACKGROUND

Armengol Beltran was married to Rosa Beltran. The couple 

had three children: Mario, Marina Beltran-Barrett (Marina), 
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IN RE ESTATE OF BELTRAN

Cite as 310 Neb. 174

and Madeline Beltran. Rosa died in 2004, and Armengol died 

in November 2016.

A probate estate was opened following Armengol’s death. 

The record indicates that this probate has been contentious, 

with Mario and Armengol’s longtime girlfriend on one side and 

Marina and her husband, Bruce Barrett (Bruce), on the other. 

Madeline lives in California and nominally supports Mario’s 

positions in this litigation.

Marina was listed either as a joint account holder or as 

a payable on death payee for many of Armengol’s financial accounts. In addition, Rosa and Armengol had loaned 

Marina and Bruce money on several occasions. Mario believes 

that Marina transferred money from Armengol’s accounts and 

that she and Bruce failed to pay back loans owed to Rosa 

and Armengol.

In an attempt to further investigate his allegations, in January 

2019, Mario served Bruce with a deposition duces tecum 

requesting that Bruce produce his tax returns since 1980. Bruce 

appeared for the deposition, but he declined to produce the 

requested tax returns. Mario filed a motion to compel Bruce 

to provide those documents, which motion was denied on 

June 21.

Mario then filed a “Verified Petition for Instruction,” arguing that “it is impossible to determine the liabilities and inventory of the estate” without an order of the court “directing the 

personal representative to investigate the claims set forth [in 

Mario’s petition] and requiring Marina . . . to appear before the 

court pursuant to . . . § 30-402 . . . and account for her actions 

in the assets of the estate and the estate of [Rosa].” Section 

30-402 provides in relevant part:

If a personal representative, heir, devisee, creditor, 

or other person interested in the estate of any deceased 

person or a conservator or guardian for a ward complains 

to the judge of the county court, upon an application 

under oath given on information and belief, that . . . any 

person may have concealed, embezzled, carried away, 
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IN RE ESTATE OF BELTRAN

Cite as 310 Neb. 174

or disposed of any money or personal property of the 

deceased or the ward . . . or . . . such person may have 

information or knowledge withheld by the respondent 

from the personal representative, conservator, or guardian 

and needed by the personal representative, conservator, or 

guardian for the recovery of any property by suit or otherwise, the judge may cite such person to appear before the 

court of probate. Any personal representative, heir, devisee, creditor, conservator, guardian, or other person interested in the estate of such deceased person or the ward 

may examine such person under oath upon the matter of 

such complaint or direct interrogatories to him or her.

A hearing was held on Mario’s petition. The only witness 

called at that hearing was the personal representative of the 

estate. The probate court denied Mario’s petition, noting that it

neither conforms to the type of request that can be granted 

pursuant to Neb. Rev. Stat. § 30-402 nor the procedure 

set forth [pursuant to either § 30-402 or Neb. Rev. Stat. 

§ 30-2465 (Reissue 2016)]. . . .

. . . .

. . . The court does not reach the substance of the 

allegations made in the . . . [p]etition . . . because 

the allegations are not properly before the court for its 

consideration.

The probate court reasoned that Mario could not invoke the 

jurisdiction of the court under Neb. Rev. Stat. § 30-2465 

(Reissue 2016), because he was not the personal representative, 

and that under § 30-402, the personal representative was not 

the person Mario had sought to have cited. Finally, the probate court noted that Mario made no request to terminate the 

appointment of the personal representative as allowed under 

Neb. Rev. Stat. § 30-2454 (Reissue 2016).

Mario appealed. Upon routine jurisdictional review, the 

Nebraska Court of Appeals ordered the parties to brief the 

issue of whether the probate court’s order was final and appealable. We subsequently moved the case to our docket.
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IN RE ESTATE OF BELTRAN

Cite as 310 Neb. 174

ASSIGNMENTS OF ERROR

Mario assigns that the county court erred in (1) holding 

that he did not comply with the procedural requirements of 

§ 30-402, (2) holding that he could not petition the court to 

instruct the personal representative, (3) failing to “cite and 

examine Marina . . . under . . . § 30-402,” (4) failing to provide 

instructions to the personal representative, and (5) denying his 

motion to compel Bruce to produce documents pursuant to a 

subpoena duces tecum.

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. 1

When reviewing questions of law, an appellate court resolves 

the questions independently of the lower court’s conclusions. 2

ANALYSIS

[3] We turn first to the jurisdictional question presented by 

this appeal. 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. 3 Our record shows that the 

county court has not entered a final judgment in this case. 

Thus, our jurisdiction depends on whether Mario has appealed 

from a final order.

[4,5] In probate proceedings, we apply the rubric of Neb. 

Rev. Stat. § 25-1902 (Cum. Supp. 2020) to determine whether 

an order is final. 4 As applied to this case, the relevant questions raised by § 25-1902 are whether the order denying 

Mario’s petition for instruction was “made during a special 

1 State v. A.D., 305 Neb. 154, 939 N.W.2d 484 (2020).

2 Becher v. Becher, 299 Neb. 206, 908 N.W.2d 12 (2018).

3 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. 2020).

4 See In re Estate of Gsantner, 288 Neb. 222, 846 N.W.2d 646 (2014).
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proceeding” and “affect[ed] a substantial right.” We have 

repeatedly said that a proceeding under the Nebraska Probate 

Code is a special proceeding. 5 As such, if the order Mario 

appeals from affects a substantial right, the order is final; if 

not, it is not final.

[6-10] A substantial right is an essential legal right, not a 

mere technical right. 6 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. 7 It is not enough 

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

that right must also be substantial. 8 Substantial rights under 

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

enforce or defend. 9 A substantial right under § 25-1902 is not 

affected when that right can be effectively vindicated in an 

appeal from the final judgment. 10

[11] Marina argues that the order Mario appeals from is not 

final because it is an order denying discovery. We have held 

that discovery orders are not generally subject to interlocutory 

appeals because the underlying litigation is ongoing and the 

discovery order is not considered final. 11 However, we have 

also noted that if the discovery order affects a substantial right 

and was made in a special proceeding, it is appealable. 12

As was the case in Furstenfeld v. Pepin,

 13 the probate 

court’s order here does not cite to a specific provision of the 

5 See, e.g., id.; 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).

6 In re Estate of Abbott-Ochsner, 299 Neb. 596, 910 N.W.2d 504 (2018).

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

8 In re Estate of Abbott-Ochsner, supra note 6.

9 In re Estate of Larson, supra note 7.

10 In re Estate of Abbott-Ochsner, supra note 6.

11 Furstenfeld v. Pepin, 287 Neb. 12, 840 N.W.2d 862 (2013).

12 Id.

13 Id.
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Nebraska Court Rules of Discovery in Civil Cases. But the 

predecessor statute to the one relied upon by Mario, § 30-402, 

has been analogized to a discovery statute. We held in In re 

Estate of Bloedorn 14 that the predecessor statute did not provide power to the lower court to seize or make any order disposing of the property at issue, but, rather, the purpose of the 

statute was purely in the nature of discovery.

And when the predecessor statute was removed from the 

Nebraska Probate Code, the Legislature acted—on the recommendation of judges and lawyers—to reinstate it. At that time, 

the legislative history stated that the language was intended 

“to provide the discovery procedure for property of a decedent 

when there has been thought to have property that [the personal 

representative] didn’t go after.” 15

[12] In addition to this authority, we have decided several 

cases involving finality in probate orders. In doing so, we 

have generally noted that a consideration regarding finality is 

whether the order ended a discrete—that is, separate and distinct—phase of the proceedings.

In In re Estate of Rose,

 16 a surviving spouse elected to take 

her elective share of 50 percent of the augmented estate and 

requested a family allowance. The probate court included certain property in the augmented estate and ordered the personal 

representative to pay a monthly family allowance, but the court 

did not make a final determination of the augmented estate.

We held that the probate court’s treatment of items relevant 

to the calculation of the augmented estate could be effectively 

considered on an appeal from the final establishment of the 

augmented estate, and we noted that the determinations made 

by the court were “preliminary to a complete determination of 

the size of the augmented estate which was the fundamental 

14 In re Estate of Bloedorn, 135 Neb. 261, 280 N.W. 908 (1938).

15 Floor Debate, L.B. 650, Judiciary Committee, 85th Leg., 2d Sess. 8643 

(April 7, 1978).

16 In re Estate of Rose, 273 Neb. 490, 730 N.W.2d 391 (2007).
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issue before the county court.” 17 As such, the order appealed 

from was not final.

We decided a case with similar facts a few months after In 

re Estate of Rose. In In Re Estate of Potthoff,

 18 the decedent 

and his wife had been involved in divorce proceedings at the 

time of the decedent’s death. Just prior to the death, the decedent had executed “‘Notice[s] of Severance of Joint Tenancy’” 

with respect to real and personal property he held with his 

wife. 19 A question arose as to whether the severance of the joint 

tenancies was effective. The court found the notices were not 

effective and awarded the wife all of the property as the sole 

surviving joint tenant. The decedent’s daughter appealed.

We distinguished these facts from In re Estate of Rose and 

found the court’s order to be final. We reasoned that the finding that the property belonged to the wife as the surviving 

joint tenant

resolved the separate issue of whether [the decedent’s] 

interest in the property was part of the probate estate, and 

following the county court’s order, there was nothing left 

to be determined on that issue. Moreover, unlike In re 

Estate of Rose, the rights involved in this case cannot be 

effectively considered in an appeal from the final judgment in which the probate estate is finally established. It 

is not uncommon for the probate of an estate to remain 

open for years. If that were to be the case here, by the 

time the probate estate is finally settled, the property in 

question may have been disposed of or the value of the 

property may be substantially reduced. 20

In 2012, we decided In re Estate of McKillip 21 and held 

that an order to sell land that was part of an estate was final. 

17 Id. at 495, 730 N.W.2d at 395.

18 In re Estate of Potthoff, supra note 5.

19 Id. at 829, 733 N.W.2d at 863.

20 Id. at 832, 733 N.W.2d at 865.

21 In re Estate of McKillip, supra note 5.
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There, sisters were left parcels of land in equal shares. One 

sister sought partition. The probate court granted partition and 

ordered the referee to sell the land. The personal representative 

appealed, and we reversed:

The county court’s order directing the referee to sell 

the property would affect the right of the devisees to 

receive the real estate in kind and would force them to 

sell their interests in the land. The distribution of the real 

estate is a discrete phase of the probate proceedings and 

would finally resolve the issues in that phase of the probate of the estate. . . .

While it may have been possible for the parties to 

appeal after a sale and confirmation, judicial economy, if 

nothing else, requires resolution of this issue before a sale 

is held. To delay review of the order of sale until after 

the sale and its confirmation would be a waste of judicial 

resources and would significantly delay completion of the 

probate of the estate. 22

More recently, we decided In re Estate of Larson,

 23 in which 

the decedent’s son objected to the final accounting of his 

father’s estate filed by the personal representative. The probate 

court overruled the objections, but did not approve the final 

accounting. The son appealed. We concluded that the discrete 

phase of the estate—in this case the final accounting—had 

not been completed and that thus, the order that was being 

appealed from was not final.

As Marina contends, the order here is akin to one for discovery. Case law and legislative history for the predecessor statute 

to § 30-402 note that the purpose behind the statute was in the 

nature of discovery. And, unless discovery orders otherwise 

affect a substantial right—as well as occur in a special proceeding, as we have here—such orders are generally not final. 

This order is no exception.

22 Id. at 374, 820 N.W.2d at 876.

23 In re Estate of Larson, supra note 7.
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The probate court’s order, as one effectively denying discovery, did not end a discrete phase of the probate proceedings. 

Rather, the order simply denied Mario’s attempt to determine 

the assets of the estate. But this order was interlocutory in that 

the personal representative continues to determine what assets 

should be included in the estate and will eventually present 

an inventory of those assets to the probate court. Moreover, 

unlike most of the cases discussed above, Mario’s dispute 

involves money and not specific real or personal property; 

thus, this dispute can be determined at a later date without risk 

to the property.

That Mario purportedly requested the court to instruct the 

personal representative under a statute not alleged in his petition does not affect our conclusion that the probate court’s 

order was not final. To the extent that Mario could even 

request such relief, that denial was also interlocutory for the 

same reasons.

This opinion should not be read to hold that an order denying an application under § 30-402 could never be immediately 

final and appealable. Still, we decline to speculate what circumstances might lead to such a final order. Nor do we read 

the probate court’s order as forestalling another attempt by 

Mario to seek relief under § 30-402.

But in this case, no substantial right of Mario’s is affected 

by the probate court’s order. For that reason, we lack a final, 

appealable order.

CONCLUSION

The probate court’s order denying Mario’s petition for 

instruction did not affect Mario’s substantial rights and was 

therefore not final. Accordingly, this court lacks appellate jurisdiction and we dismiss Mario’s appeal.

Appeal dismissed.