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In re Estate of Alberts

Supreme Court of Nebraska

March 11, 2016

IN RE ESTATE OF EMIL C. ALBERTS, DECEASED. MARK ALBERTS AND MIKE ALBERTS, IN THEIR INDIVIDUAL CAPACITIES AND AS COPERSONAL REPRESENTATIVES AND COTRUSTEES, APPELLANTS,
v.
LOIS M. ALBERTS, APPELLEE

Page 428

Appeal from the County Court for Custer County: TAMIK. SCHENDT, Judge.

William J. Lindsay, Jr., of Gross & Welch, P.C., L.L.O., and Steve Windrum, of Malcom, Nelsen & Windrum, L.L.C., for appellants.

Gregory C. Scaglione and John V. Matson, of Koley Jessen, P.C., L.L.O., and Claude E. Berreckman, of Berreckman & Davis, P.C., for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, CASSEL, and STACY, JJ. MILLER-LERMAN, J., not participating.

OPINION

Page 429

Wright, J.

NATURE OF CASE

Following the death of Emil C. Alberts, his surviving spouse, Lois M. Alberts, authorized her attorney to file a petition on her behalf to elect to take one-half of Emil's augmented estate under Neb. Rev. Stat. § 30-2313 (Reissue 2008). Emil's two nephews, Mark Alberts and Mike Alberts, as copersonal representatives of Emil's estate and as beneficiaries [293 Neb. 3] of Emil's trust (the appellants), challenge both the validity of Lois' petition and the county court's inclusion of the value of certain trust property into the calculation of Lois' elective share.

Page 430

BACKGROUND

Emil passed away in June 2013 and was survived by Lois and the appellants. After Emil's death, Lois hired an attorney who filed a petition with the county court for Custer County for Lois to elect one-half of Emil's augmented estate pursuant to § 30-2313.

In response to the petition for the elective share, the appellants objected to the petition's validity and to the calculation of Lois' elective share within it. The appellants alleged that the petition was not valid, because Neb. Rev. Stat. § 30-2315 (Reissue 2008) states that the right to an elective share may only be exercised by the surviving spouse, and Lois did not sign or file the petition herself. The appellants also alleged that the value of certain property transferred during Emil's lifetime was improperly included in the augmented estate for purposes of calculating Lois' elective share; they argued that Lois consented to the transfer and that thus, the value of the property should have been excluded from the augmented estate under Neb. Rev. Stat. § 30-2314(c)(2) (Reissue 2008).

The property [293 Neb. 4] at issue was real estate transferred by deeds to Emil's revocable trust. Seventeen months prior to Emil's death, he and Lois jointly met with an attorney to put together an estate plan. In addition to Emil's living trust and will, the attorney prepared four deeds for them. Two of the deeds conveyed real property to Lois as trustee of Lois' trust. The other two deeds conveyed the real property at issue in this appeal, valued at $2,529,460, to Emil as trustee of Emil's trust. All four deeds were signed by both Emil and Lois on the same day that Emil's trust and will and Lois' trust and will were executed. Lois does not dispute that she signed the deeds and does not allege any fraud in the inducement.

The county court ultimately found that Lois' petition for elective share was validly filed and that the value of the property at issue should be included in the augmented estate ...


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