Category: Estate Planning

When Is A “Personal Representative” Not A “Person?”

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Is a personal representative a “person,” at least for one specific purpose? That was the question asked and answered by the Nebraska Supreme Court. The answer was no.

A little background would be helpful to understand what’s going on. When a person dies and owns property, Nebraska law requires the estate (meaning the collection of property that the person who died owned at the time of death) be opened through a process called probate. In the probate process, an individual called a “personal representative” is appointed to accumulate the property of the person who died, pay the creditors, then divide the property either based on the directions of the will (if the person died with a will) or Nebraska state law (if the person died without a will).

In Correa v. Estate of Hascall, Dean Hascall passed away in 2009. His widow, Neomi, was appointed personal representative of the estate and divided all the property. The estate was closed in 2011, meaning the Court was satisfied that the personal representative did everything she was supposed to do to divide the estate.

In 2012, Neomi and the Hascall estate was sued by Gloria Correa for negligence based on a car accident involving Gloria and Dean in 2008. Neomi asked for the lawsuit to be dismissed, in part because her duties as a personal representative for Dean’s estate had been completed and the estate was closed.

The Nebraska Supreme Court agreed with Neomi. The suit against the estate was dismissed based on a statute of limitations rule that requires a lawsuit against an estate to be brought within three years of the incident giving rise to the lawsuit, which Gloria failed to do.

But Gloria also sued Neomi personally, for negligence. But the Nebraska Supreme Court, in agreeing with the lower Court of Appeals, ruled that a personal representative is not a “natural person” that can be sued, but rather a legal entity that is created through the probate process. And if a personal representative is created by the probate process, then by definition that “person” no longer exists once the estate has been closed.

In some ways, a “personal representative” is similar to the idea of a corporation, in that it is a separate “legal entity” from the individual or individuals that make up the corporation. This “legal fiction” helps to protect the individuals serving in those capacities (or those forming a corporation) from actions outside of their duties as part of that “legal entity.”

So, because Neomi’s appointment as a personal representative ended before Gloria brought her lawsuit, the “personal representative” did not exist for Gloria to sue in the first place. As a result, the Nebraska Supreme Court agreed with the Court of Appeals and dismissed Gloria’s appeal.

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Thank you for taking the time to come visit the official Runge Law Office blog! Here, we will be providing you with important and helpful information about the specific areas of law we focus on, to help you understand your rights and how we can help you find solutions to the problems you face.

We have practiced law in Omaha and eastern Nebraska since 1995. At Runge Law Office, we focus our practice on:

Family Law. This area includes divorce, custody disputes, child support issues, modification of previous orders when circumstances have changed, and enforcement actions that use the power of the Court to follow a previously-entered order.

Criminal Defense. We have experience in tribal, state, and federal courts, defending people accused of both felonies and misdemeanors. If you have been accused of a crime, both your freedom and your future are at stake. You need experienced representation that knows how to find a solution to your problem, either through smart negotiation or in court.

Juvenile Law. If the State has come in and taken your children based on allegations of abuse or neglect, it is critical that you have experienced representation helping you. Once a child has been removed and a juvenile court cause started, by law parents only have a certain amount of time before the State will take actions to permanently take your children away. We have extensive experience in juvenile court, and can help you find a solution to your problem.

Estate Planning. Thinking about death is always unpleasant. But if you don’t have a plan for your property when you die, the State has one for you. If you want to make sure you have control over your property once you die, you need to speak with us. We have experience in listening to your concerns and crafting the right legal framework to ensure that your wishes are honored and your family is protected after your death. We can also help you with living wills and powers of attorney to make sure your wishes are honored and your rights are protected when you are at your most vulnerable.

Native American Law. In Indian Country, the intersection of tribal, state, and federal laws can be very challenging. We have years of experience working in Indian Country, in both tribal courts and state courts, and can help you navigate the legal, jurisdictional, and cultural barriers you may be facing. Patrick has been a public defender in tribal court, and is currently the Chief Judge of the Winnebago Tribal Court. He also teaches Native American Law at the Creighton University School of Law, and has taught and spoken frequently about Native American Law issues such as the Indian Child Welfare Act.

At Runge Law Office, we are here to help find solutions for your legal problems. Please contact us at 402-390-9577 or using the form below to ask questions or schedule a free consultation.