## Facts

- Donald J. Evans died intestate in Nebraska with no surviving spouse, no surviving parents, and no surviving children or other descendants.
- Donald had three siblings, all of whom predeceased him. Only two of those siblings left descendants.
- One deceased sibling, Stewart, left two daughters: Mary C. Evans and Susan Evans Olson.
- Another deceased sibling, Frederick, left one son: Ted L. Evans.
- All three nieces and nephew (Mary, Susan, and Ted) were alive at Donald’s death and were the closest living relatives involved in the probate.
- The county court concluded that Donald’s parents had no living “issue” and divided the estate equally among Mary, Susan, and Ted.
- Ted appealed, arguing the estate should be divided using strict per stirpes (which would give him one-half and Mary and Susan one-quarter each) and also challenging the county court’s removal of him as copersonal representative and appointment of a special administrator.

## Issues

1. Under Nebraska’s intestacy statute, when a decedent leaves no spouse, no issue, and no parents, do surviving nieces and nephews qualify as “issue of the parents”?
2. Does “by representation” in Nebraska’s intestacy statute require the distribution method defined in Neb. Rev. Stat. § 30-2306 (modern per stirpes), or a strict per stirpes approach?
3. May a probate court remove a personal representative and appoint a special administrator without a filed petition for removal and proper notice as required by Neb. Rev. Stat. §§ 30-2454 and 30-2457?

## Decision

- The court held that, because the Probate Code defines “issue” to include descendants of any degree, surviving nieces and nephews are “issue of the parents” when the decedent leaves no spouse, no issue, and no parents.
- The court held that “by representation,” as used in the intestacy statute, is defined by § 30-2306 and implements a modern per stirpes method, not strict per stirpes.
- Applying § 30-2306, the court concluded the estate was properly divided into three equal shares, so Mary, Susan, and Ted each take one-third; the equal division was affirmed (though the county court’s reasoning was corrected).
- The court held that an oral request made during testimony is not a petition for removal under § 30-2454 and that the mere presence of interested persons at a hearing is not notice to the personal representative that removal is at issue.
- Because the statutory steps for removal and related appointments were not followed, the court reversed the portion of the order removing Ted as copersonal representative and appointing a special administrator, and remanded for further proceedings.

## Legal Principles

- Probate Code definitions govern intestacy terms; “issue” includes descendants in any degree, not only children.
- When a decedent leaves no spouse, no issue, and no parents, the decedent’s nieces and nephews qualify as “issue of the parents” for intestate succession.
- “By representation” in Nebraska’s intestacy statute is controlled by § 30-2306 and uses a modern per stirpes approach that starts at the nearest generation with living takers.
- Under modern per stirpes, when all takers are in the same (nearest living) generation, they take equal shares.
- Removal of a personal representative and appointment of a special administrator require a filed petition and proper notice under §§ 30-2454 and 30-2457; an informal oral request and general hearing attendance do not satisfy those requirements.
- If the required petition-and-notice process is not used, the probate court lacks authority to remove the personal representative on that basis.

## Conclusion

The Nebraska Court of Appeals held that Donald Evans’ surviving nieces and nephew were “issue of the parents” and that Nebraska’s “by representation” statute requires modern per stirpes distribution, resulting in equal one-third shares to each. The court affirmed the distribution result but reversed and remanded the probate court’s removal of Ted as copersonal representative and its appointment of a special administrator because the statutory petition and notice procedure was not followed.


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