In re Estate of Giventer , 310 Neb. 39 ( 2021 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    09/24/2021 12:09 AM CDT
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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    IN RE ESTATE OF GIVENTER
    Cite as 
    310 Neb. 39
    In re Estate of Pearl R.
    Giventer, deceased.
    Edward F. Fogarty and J. Bruce Teichman,
    appellants, v. Marlys Lebowitz
    et al., appellees.
    ___ N.W.2d ___
    Filed September 3, 2021.   No. S-20-111.
    1. Guardians and Conservators: Judgments: Appeal and Error.
    Appeals of matters arising under the Nebraska Probate Code, 
    Neb. Rev. Stat. §§ 30-2201
     through 30-2902 (Reissue 2016, Cum. Supp. 2018 &
    Supp. 2019), are reviewed for error on the record.
    2. Decedents’ Estates: Appeal and Error. An appeal from the county
    court’s allowance or disallowance of a claim in probate will be heard as
    an appeal from an action at law. In reviewing a judgment of the probate
    court in a law action, an appellate court does not reweigh evidence, but
    considers the evidence in the light most favorable to the successful party
    and resolves evidentiary conflicts in favor of the successful party, who is
    entitled to every reasonable inference deducible from the evidence. The
    probate court’s factual findings have the effect of a verdict and will not
    be set aside unless clearly erroneous.
    3. Judgments: Appeal and Error. On a question of law, an appellate court
    is obligated to reach a conclusion independent of the determination
    reached by the court below.
    4. Statutes: Appeal and Error. Statutory interpretation is a question of
    law, which an appellate court resolves independently of the trial court.
    5. Decedents’ Estates: Claims: Time. The requirements of 
    Neb. Rev. Stat. § 30-2485
     (Reissue 2016) are mandatory, and where a claim is not filed
    within the time provided in the statute, it is barred.
    6. Statutes. It is not within the province of the courts to read meaning
    into a statute that is not there or to read anything direct and plain out of
    a statute.
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    IN RE ESTATE OF GIVENTER
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    7. Legislature: Intent. The intent of the Legislature is expressed by omis-
    sion as well as by inclusion.
    8. Appeal and Error. An appellee’s argument that a lower court’s deci-
    sion should be upheld on grounds specifically rejected below constitutes
    a request for affirmative relief, and the appellee must cross-appeal in
    order for that argument to be considered.
    Appeal from the County Court for Douglas County: Craig
    Q. McDermott, Judge. Affirmed in part, and in part reversed
    and remanded with directions.
    Edward F. Fogarty, pro se, and J. Bruce Teichman, pro se.
    Diana J. Vogt and James L. Schneider, of Sherrets, Bruno &
    Vogt, L.L.C., for appellees.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Papik, J.
    This is an appeal from the denial of petitions to recover fees
    and expenses incurred by a nominated personal representative
    and his attorney who were unsuccessful in probating a will
    that was drafted by the attorney. We conclude that the county
    court did not err in finding in these probate proceedings that
    claims for fees and expenses from the estate for services
    performed by the attorney prior to the decedent’s death were
    time barred. However, we conclude the county court’s reasons
    for denying fees and expenses for services after the dece-
    dent’s death were legally erroneous. Regarding the remaining
    requests for relief, we conclude they are not supported by a
    discernible legal argument. Therefore, we affirm in part and in
    part reverse the county court’s judgment and remand the cause
    with directions.
    I. BACKGROUND
    1. Parties and Overview
    This appeal from probate proceedings involves the estate
    of Pearl R. Giventer, who was born in 1920. In 2012, she
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    310 Nebraska Reports
    IN RE ESTATE OF GIVENTER
    Cite as 
    310 Neb. 39
    signed a will drafted by Edward F. Fogarty, naming J. Bruce
    Teichman as her nominated personal representative. The 2012
    will purported to revoke Pearl’s preexisting pourover will and
    the provisions of a related revocable trust of which Pearl was
    the settlor and which provided for the disposition of trust assets
    upon her death. Shortly after Pearl died in 2013, Fogarty filed
    in the trust proceedings a request for fees from the trust for
    services he performed prior to Pearl’s death. More than 3 years
    later, Fogarty requested predeath fees from the trust and from
    the estate. In addition, Fogarty and Teichman, represented by
    Fogarty, sought from Pearl’s estate and trust fees and expenses
    incurred after Pearl’s death, primarily in their unavailing efforts
    to probate the 2012 will. All told, Fogarty and Teichman
    sought fees and expenses of approximately $500,000. Fogarty
    and Teichman appeal the county court’s complete denial of fees
    and expenses.
    Appellees include Marlys Lebowitz (Marlys), who is Pearl’s
    daughter and personal representative of her estate, and Wells
    Fargo Bank (Wells Fargo), the trustee of Pearl’s trust. Wells
    Fargo waived briefing and oral argument. Also an appellee is
    Pearl’s son, Paul Giventer, who plays a role in this case as an
    interested party. The record indicates that there was animos-
    ity between Fogarty and Paul. Paul has not filed a brief in
    this appeal.
    The procedural history of this appeal from probate proceed-
    ings is complicated. In addition to the underlying probate
    proceedings, also relevant are guardianship and conservator-
    ship proceedings, trust proceedings, and several appeals. An
    exhaustive history of all of these related proceedings would be
    too lengthy to repeat here. What follows are the facts salient to
    the legal issues before us.
    2. Pearl’s Trust and Guardianship
    In 1996, Pearl established the Pearl R. Giventer Revocable
    Trust, naming herself as trustee. Pearl executed a pourover
    will to the trust in 2005. The trust, as amended in 2005 and
    2008, gave Pearl the power to revoke it during her lifetime.
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    IN RE ESTATE OF GIVENTER
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    Under certain conditions, it provided for distribution of trust
    assets during Pearl’s life. The trust also functioned as an estate
    planning tool. According to the trust’s dispositive provisions,
    Paul and Marlys would be the primary beneficiaries of the trust
    assets when Pearl died.
    In November 2009, Paul initiated a proceeding to have
    himself appointed guardian for Pearl. A temporary guardian
    was appointed. After negotiations during which Pearl and
    Paul were represented by independent counsel, they came to
    a settlement agreement in April 2010. Under the agreement,
    the trust was again amended. Pearl resigned as trustee and was
    succeeded by Wells Fargo. Pearl agreed not to remove Wells
    Fargo as trustee without Paul’s consent or a court order. Pearl
    also agreed to limitations on her ability to alter the settlement
    agreement and to alter the provisions to distribute the trust
    assets when she died. To change these aspects, Pearl needed
    permission of Wells Fargo and an unrelated third party, to be
    selected by agreement of Wells Fargo, Paul, and Marlys or, if
    they could not agree, by the county court. In exchange for the
    2010 settlement agreement, Paul terminated the guardianship
    and conservatorship proceedings. Subsequently, the amended
    trust was registered with the county court.
    In July 2010, a second guardianship and conservatorship
    proceeding for Pearl was opened. Supporting documentation
    showed that Pearl had Alzheimer’s disease and dementia and
    exhibited symptoms of cognitive decline and impairment. Pearl
    consented to the proceedings, and in December, a guardian and
    conservator were appointed.
    3. Fogarty Retained and Services
    Limited by Court Order
    On January 3, 2011, Pearl, while under guardianship, retained
    Fogarty and another attorney as her counsel on a noncontingent
    basis. The retainer agreement identified the legal services
    to be performed as “[guardianship and conservatorship pro-
    ceeding] PR10-1026, Estate, guardianship and family/financial
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    IN RE ESTATE OF GIVENTER
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    & conservatorship, recoupment of money (250K?)—will start
    appeal, defer pushing.” Paul, however, filed a motion in the
    guardianship proceeding challenging the authority of Fogarty
    and his cocounsel to act as Pearl’s attorneys. Pearl, represented
    by Fogarty and his cocounsel, opposed it.
    The county court did not void Pearl’s contract with Fogarty
    and his cocounsel, but, in an order entered on June 23, 2011,
    it limited the scope of their representation to those purposes
    outlined in 
    Neb. Rev. Stat. § 30-2620
    (9) (Reissue 2008):
    “After appointment, the ward may retain an attorney for the
    sole purpose of challenging the guardianship, the terms of
    the guardianship, or the actions of the guardian on behalf of the
    ward.” On behalf of Pearl, Fogarty and his cocounsel eventu-
    ally appealed to the Nebraska Court of Appeals the ruling that
    limited the scope of their representation; they also appealed
    an order approving an annual accounting by Wells Fargo and
    authorizing payment of attorney fees and costs associated
    with it. The appeals were consolidated and docketed as cases
    Nos. A-11-806 and A-11-974.
    4. Pearl Signs 2012 Will
    While the consolidated appeals in cases Nos. A-11-806 and
    A-11-974 were pending, Fogarty, purporting to represent Pearl,
    met with Pearl’s guardian to discuss a will for Pearl and other
    matters. The guardian relied on a February 2012 evaluation
    that found that Pearl lacked testamentary capacity, but Fogarty
    viewed the evaluation as legally insufficient. Thereafter, with-
    out the guardian’s awareness or approval, Fogarty retained a
    psychiatrist to assess Pearl’s testamentary capacity. The psy-
    chiatrist determined that Pearl suffered from mild to moderate
    dementia but possessed testamentary capacity.
    On September 5, 2012, Pearl signed a will prepared by
    Fogarty. At that time, nearly all of Pearl’s assets were property
    of the trust. The 2012 will nominated Teichman as personal
    representative and cotrustee, along with another individual,
    of the testamentary trusts it created. The 2012 will purported
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    IN RE ESTATE OF GIVENTER
    Cite as 
    310 Neb. 39
    to revoke Pearl’s trust as amended in 2010, as well as any
    prior wills. As in earlier instruments, Paul and Marlys were the
    primary beneficiaries under the 2012 will, but unlike the ear-
    lier instruments, the 2012 will contained a penalty clause that
    substantially reduced Paul’s and Marlys’ residuary shares in the
    event they challenged the will.
    5. Limitation of Services Affirmed, Pearl Dies,
    Will Contest Begins, Fogarty Seeks
    Fees From Trust, and Attempts
    to Revive Appeal
    In April 2013, the Court of Appeals affirmed the county
    court’s order limiting the scope of Fogarty’s legal services
    to those listed in § 30-2620. See In re Guardianship &
    Conservatorship of Giventer, Nos. A-11-806, A-11-974, 
    2013 WL 2106656
     (Neb. App. Apr. 9, 2013) (selected for posting
    to court website). Fogarty filed a motion for rehearing on
    Pearl’s behalf.
    On May 10, 2013, Pearl died.
    On May 15, 2013, Paul requested a declaratory judgment
    action in the trust proceeding ordering that the trust assets
    should be distributed pursuant to the terms of the trust as
    amended in 2010 by his settlement agreement with Pearl.
    On May 16, 2013, Fogarty, whom Teichman retained to
    probate the 2012 will, filed the 2012 will for probate in county
    court. At some point in the summer of 2013, the 2005 pourover
    will that devised assets to Pearl’s trust was also submitted for
    probate by Paul.
    The will contest was transferred to district court but then
    stayed pending the county court’s determination of issues
    related to the 2010 trust amendments.
    On June 12, 2013, Fogarty and his cocounsel filed in the
    trust proceedings an application for the payment of fees and
    costs for services incurred during Pearl’s lifetime “if it be
    within the authority of the Pearl R. Giventer [Revocable] Trust
    to do so.” The application included itemized statements of fees
    incurred before Pearl’s death.
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    IN RE ESTATE OF GIVENTER
    Cite as 
    310 Neb. 39
    After Pearl’s death, Fogarty made many filings related to her
    motion for rehearing under submission in the Court of Appeals
    in cases Nos. A-11-806 and A-11-974, in an attempt to revive
    the appeal in Teichman’s name. None of these efforts were suc-
    cessful, and the Court of Appeals overruled Pearl’s motion for
    rehearing for failure of the parties to properly revive the appeal
    within 1 year after Pearl’s death. Fogarty sought further review,
    but the petition was denied.
    6. 2014 Settlement Agreement Between Paul and
    Marlys, Trust Determined Controlling, and
    2012 Will Has No Force or Effect
    Marlys initially opposed the 2010 trust settlement agree-
    ment, but in 2014, Paul and Marlys reached a settlement agree-
    ment and joined in a motion for summary judgment in Paul’s
    declaratory judgment action to have the 2010 trust settlement
    agreement declared valid and enforceable and to find Teichman
    had no standing.
    In opposition, Fogarty filed a cross-motion for summary
    judgment on Teichman’s behalf. After Fogarty was advised of
    the settlement reached between Paul and Marlys, Teichman
    designated a specific nonprofit organization as a beneficiary
    under the 2012 will’s penalty clause, which allowed the per-
    sonal representative to distribute significant assets to “Omaha
    synagogues and Omaha Jewish non-profit organizations”
    selected by him in the event that Paul and Marlys challenged
    the will.
    On August 2, 2015, the county court entered an order grant-
    ing summary judgment in favor of Paul and Marlys and deny-
    ing Teichman’s motion for summary judgment. It found that
    the 2010 trust settlement agreement was valid and enforceable
    and that Teichman had no standing to challenge its validity
    or to raise issues regarding the trust. The county court further
    found that the purported 2012 will did not alter the dispositive
    scheme of the trust as amended and that “[b]ecause the 2012
    Will is of no force and effect, any beneficiaries, contingent
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    IN RE ESTATE OF GIVENTER
    Cite as 
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    or otherwise, named in the 2012 Will, but not named in the
    Trust have no standing to raise issues regarding the administra-
    tion of the trust or participate in related proceedings.”
    Represented by Fogarty, Teichman appealed. In case No.
    A-15-825, the Court of Appeals affirmed the county court order
    in an unpublished memorandum opinion filed on November 4,
    2016. Fogarty filed unsuccessful motions for rehearing and
    further review on Teichman’s behalf.
    7. Requests for Fees and Expenses
    On July 14, 2016, while the appeal in case No. A-15-825
    was still pending, Fogarty filed in the conservatorship, trust,
    and probate proceedings an “Informational and Supplemental
    Cumulative Interim Claim of Edward F. Fogarty, Creditor” for
    fees and costs incurred before and after Pearl’s death. Fogarty
    identified himself as a creditor of Pearl’s “Estate and Trust” and
    characterized the document as a “supplement[]” to the applica-
    tion for fees he filed in the trust proceedings in May 2013. On
    August 3, 2016, the special administrator filed a response in the
    probate proceedings. To the extent that Fogarty’s July 14 filing
    was a claim or notice of claim in the probate proceedings, the
    special administrator disallowed it, noting that Fogarty had not
    previously claimed fees in the probate proceeding.
    On April 4, 2018, Fogarty and Teichman filed petitions for
    allowance of claims in the probate proceedings. Fogarty reiter-
    ated that he was entitled to fees and expenses incurred before
    Pearl’s death, requesting fees from the trust and probate estate.
    Similarly, as for fees and expenses for his services to Teichman
    after Pearl’s death, Fogarty asserted the trust and probate
    estate were liable. In total, Fogarty claimed he was entitled
    to approximately $500,000 for fees and expenses. Teichman
    sought postdeath fees and expenses of $8,000.
    Each also asked for declaratory and equitable relief declar-
    ing meritless “ad hominem attacks” and “slanders” by Paul
    and Marlys. These “attacks” included unsuccessful motions for
    attorney fees by Marlys, alleging bad faith and frivolousness
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    IN RE ESTATE OF GIVENTER
    Cite as 
    310 Neb. 39
    by Fogarty and Teichman, and pleadings filed by Paul assert-
    ing that Fogarty’s retainer was in bad faith and that Fogarty
    coerced and defrauded Pearl into signing the 2012 will.
    8. County Court’s Orders
    On June 10, 2019, the county court denied fees in the
    probate proceeding incurred prior to Pearl’s death, because
    Fogarty and Teichman filed their claims for those fees out of
    time, apparently pursuant to 
    Neb. Rev. Stat. §§ 30-2485
    (a)(2)
    and 30-2486 (Reissue 2016). It also denied postdeath fees and
    expenses, articulating the test as “what is reasonable and nec-
    essary and beneficial to the estate.” The county court reasoned
    that Teichman’s acts, through Fogarty, in pursuing probate of
    the will did not benefit the estate, even if done in good faith.
    But the county court observed that the evidence did not sup-
    port a finding of bad faith or vexatious acts by Fogarty and
    Teichman or by Paul’s and Marlys’ attorneys.
    On June 14, 2019, Fogarty and Teichman filed a motion for
    new trial or to alter and amend the judgment. They asserted
    that they were not required to show some benefit to the estate,
    but, rather, that their actions were taken in good faith consist­
    ent with Pearl’s directions while she was living and with the
    2012 will. The motion also challenged the county court’s find-
    ing that claims for predeath fees were time barred, asserting
    that 
    Neb. Rev. Stat. § 30-2482
     (Reissue 2016) applied, rather
    than § 30-2486.
    On January 17, 2020, the county court denied the motion
    for new trial in its entirety and entered a new order modifying
    its reasoning but still denying fees. The county court rejected
    the assertion that § 30-2482 applied to Fogarty’s claim for
    predeath fees, noting that that section, along with 
    Neb. Rev. Stat. § 30-2481
     (Reissue 2016), applies to services on behalf of
    the estate and that there was no estate or personal representa-
    tive prior to Pearl’s death and there were likewise no probate
    or administration expenses. Instead, it found that claims for
    predeath fees were associated with services Fogarty performed
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    IN RE ESTATE OF GIVENTER
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    for Pearl directly, rather than her estate or her nominated per-
    sonal representative, and should have been filed in the probate
    proceeding within the 3-year limitations period set forth in
    § 30-2485(a)(2).
    Regarding the postdeath fees and expenses, the county court
    modified its previous order to address whether Fogarty and
    Teichman’s actions were “‘necessary’” to the estate, rather
    than whether they were of some “benefit to the estate.” The
    county court stated that it did not find Fogarty and Teichman
    acted in bad faith, “as the evidence was insufficient to prove
    the same”; that Fogarty and Teichman believed they had a duty
    to pursue the 2012 will; and that they believed they had carried
    out their duty under the 2012 will in good faith. However, the
    county court found that Fogarty created this supposed duty by
    drafting an unenforceable will in disregard of the provisions
    in the 2010 trust amendment that controlled Pearl’s future
    estate planning and was later determined to be the controlling
    instrument. The county court observed that Fogarty “seemed to
    ignore” the 2010 trust amendment.
    The county court further observed that § 30-2482 did not
    apply to postdeath fees incurred by Teichman because he was
    not and could not have been appointed as “personal representa-
    tive” via an unenforceable will. It also deemed it significant
    that the probate estate did not contain any assets to satisfy
    claims by Fogarty and Teichman and appeared to conclude
    that Fogarty and Teichman could not have their claims satis-
    fied by assets from the trust, because they did not comply with
    the provisions of 
    Neb. Rev. Stat. § 30-3850
     (Reissue 2016).
    Considering “the necessity of pursuing an unenforceable will
    and whether that will should have been drafted in the first
    place,” the county court determined that Fogarty and Teichman
    could not recover postdeath fees and expenses.
    Fogarty and Teichman have timely filed this appeal.
    II. ASSIGNMENTS OF ERROR
    Fogarty and Teichman assign that the county court erred
    by (1) “not awarding and ordering the Trust to pay [Fogarty]
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    and [Teichman] fair and reasonable fees,” (2) “ruling [Fogarty’s]
    fees and expenses in service to Pearl before she died were
    time-barred” and failing “to order the Trust to pay these fair
    and reasonable fees and expenses,” and (3) “not declaring
    all claims of Paul and Marlys[] (a) are without merit” and
    “(b) are res judicata and/or claim precluded against [Fogarty]
    and [Teichman] by them or any person in privity with them.”
    (Emphasis omitted.)
    III. STANDARD OF REVIEW
    We set forth the appropriate standards of review in the
    analysis portion of this opinion.
    IV. ANALYSIS
    1. Fees Incurred Before Pearl’s Death
    We begin by addressing Fogarty’s claim that the county
    court erred in not ordering that he be compensated for the fees
    and expenses he incurred in representing Pearl prior to her
    death. He disputes the county court’s finding that a claim for
    such fees was not presented within the 3-year limitations period
    after Pearl’s death, as set forth in § 30-2485(a) for “[a]ll claims
    against a decedent’s estate which arose before the death of the
    decedent . . . .” Not only does Fogarty argue that a different
    subsection for claims “which arise at or after the death of the
    decedent,” § 30-2485(b), applied to impose a 4-month statute
    of limitations commencing upon Pearl’s death, he asserts that
    an application for fees from the trust filed on June 12, 2013, in
    the trust proceedings was sufficient to present his claim within
    that limitations period, see § 30-2485(b)(2). Marlys counters
    that the county court applied the correct statute of limitations,
    that an application filed in the trust proceedings could not
    operate to satisfy the statute of limitations for claims against
    the probate estate, and that the claim for predeath fees is there-
    fore barred as untimely.
    As we will explain in greater detail below, we conclude
    that Fogarty did not file a claim against the probate estate
    within any limitations period imposed by § 30-2485. Shortly
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    after Pearl’s death in May 2013 he requested predeath fees and
    expenses from the trust, but he did not file a claim for those
    fees and expenses against the probate estate until July 14,
    2016. As a result, he did not file any claim against the probate
    estate within 3 years of Pearl’s death, and any such claim filed
    afterward was barred.
    (a) Standard of Review
    [1-4] We first address the standard of review. Generally,
    appeals of matters arising under the Nebraska Probate Code,
    
    Neb. Rev. Stat. §§ 30-2201
     through 30-2902 (Reissue 2016,
    Cum. Supp. 2018 & Supp. 2019), are reviewed for error on
    the record. In re Estate of Hutton, 
    306 Neb. 579
    , 
    946 N.W.2d 669
     (2020). But we apply a different standard of review to
    appeals regarding claims against the probate estate. An appeal
    from the county court’s allowance or disallowance of a claim
    in probate will be heard as an appeal from an action at law. In
    re Estate of Karmazin, 
    299 Neb. 315
    , 
    908 N.W.2d 381
     (2018).
    In reviewing a judgment of the probate court in a law action,
    an appellate court does not reweigh evidence, but considers the
    evidence in the light most favorable to the successful party and
    resolves evidentiary conflicts in favor of the successful party,
    who is entitled to every reasonable inference deducible from
    the evidence. 
    Id.
     The probate court’s factual findings have the
    effect of a verdict and will not be set aside unless clearly erro-
    neous. 
    Id.
     On a question of law, an appellate court is obligated
    to reach a conclusion independent of the determination reached
    by the court below. 
    Id.
     Statutory interpretation is a question
    of law, which an appellate court resolves independently of the
    trial court. In re Estate of Hutton, 
    supra.
    (b) Applicable Statute of Limitations
    Through the years, the litigation involving Pearl has
    included both probate proceedings and trust proceedings. Our
    law recognizes probate proceedings and trust proceedings as
    separate spheres of jurisdiction, see In re Estate of Chrisp, 
    276 Neb. 966
    , 
    759 N.W.2d 87
     (2009), and this appeal arises solely
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    from probate proceedings in which the probate of the 2005
    pourover will was at issue. Where probate of a will is at issue
    in probate proceedings, devolution of the decedent’s property
    devised by the will, subject to, among other things, the rights
    of creditors, is controlled by the Nebraska Probate Code. See
    §§ 30-2201 and 30-2401.
    [5] Under our probate code, creditors’ claims in probate
    proceedings must be presented within the time limitations set
    forth in § 30-2485, also called the nonclaim statute. It states,
    in part:
    (a) All claims against a decedent’s estate which arose
    before the death of the decedent, . . . whether due or to
    become due, absolute or contingent, liquidated or unliq-
    uidated, founded on contract, tort, or other legal basis,
    if not barred earlier by other statute of limitations, are
    barred against the estate, the personal representative, and
    the heirs and devisees of the decedent, unless presented
    as follows:
    (1) Within two months after the date of the first publi-
    cation of notice to creditors if notice is given in compli-
    ance with sections 25-520.01 and 30-2483 . . . ;
    (2) Within three years after the decedent’s death if
    notice to creditors has not been given in compliance with
    sections 25-520.01 and 30-2483.
    (b) All claims . . . against a decedent’s estate which
    arise at or after the death of the decedent . . . are barred
    . . . unless presented as follows:
    ....
    (2) Any . . . claim [other than one based on a contract
    with the personal representative], within four months after
    it arises.
    § 30-2485. The requirements of § 30-2485 are mandatory, and
    where a claim is not filed within the time provided in the stat-
    ute, it is barred. In re Estate of Masopust, 
    232 Neb. 936
    , 
    443 N.W.2d 274
     (1989); J. J. Schaefer Livestock Hauling v. Gretna
    St. Bank, 
    229 Neb. 580
    , 
    428 N.W.2d 185
     (1988).
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    Fogarty’s argument that he is entitled to fees for his services
    for Pearl personally is limited to services he performed before
    Pearl died. Based on our reading of § 30-2485 and the facts
    of this case, we conclude that the 3-year limitations period
    in § 30-2485(a)(2) controlled any claim by Fogarty for pre-
    death fees and expenses against Pearl’s estate in the probate
    proceedings. Section 30-2485(a) applies to claims against the
    decedent’s estate that “arose before the death of the decedent,”
    regardless of whether those fees were “due or to become due.”
    Pearl retained Fogarty for the legal work he performed before
    she died. Fogarty billed Pearl while she lived. Even though the
    fees remained outstanding upon Pearl’s death, Pearl’s indebted-
    ness to Fogarty for predeath fees arose during her lifetime. And
    there is no evidence in the record that notice to creditors was
    given as described in § 30-2485(a)(2).
    Fogarty apparently accepts that his claim for predeath fees
    and expenses is governed by the nonclaim statute, but he
    seems to believe that it “ar[ose] at or after” Pearl’s death, see
    § 30-2485(b), such that § 30-2485(b)(2) applied, imposing a
    4-month limitations period following Pearl’s death. We do not
    understand how fees Fogarty seeks for representing Pearl per-
    sonally during her life can be said to arise at or after her death.
    In the end, however, it does not matter, because Fogarty did
    not properly present a claim against Pearl’s estate for predeath
    fees and expenses within 3 years of Pearl’s death as required
    by § 30-2485(a)(2), much less within 4 months as required by
    § 30-2485(b)(2).
    (c) Presenting Claim Against Decedent’s Estate
    Nebraska has authorized only two methods of presenting
    “claims against a decedent’s estate” to satisfy the limitations
    period in § 30-2485—(1) filing a timely “written statement
    of the claim . . . with the clerk of the court,” pursuant to
    § 30-2486(1), or (2) commencing a proceeding against the
    personal representative “in any court which has subject mat-
    ter jurisdiction and [where] the personal representative may
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    be subjected to jurisdiction,” pursuant to § 30-2486(2). See
    Lenners v. St. Paul Fire & Marine Ins. Co., 
    18 Neb. App. 772
    , 
    793 N.W.2d 357
     (2010). Here, Fogarty has not filed a
    proceeding against the personal representative. His recovery of
    predeath fees and expenses depends on whether he timely filed
    a written statement of the claim. The only written request for
    predeath fees and expenses that Fogarty made within 3 years of
    Pearl’s death was the application he made in the trust proceed-
    ings on June 12, 2013. Fogarty claims that this was a proper
    presentation of the claim for purposes of the nonclaim statute.
    For the reasons below, we conclude that this application did
    not present a claim against Pearl’s estate for the purposes of
    §§ 30-2485 and 30-2486.
    We first look at the nature of Fogarty’s June 12, 2013, appli-
    cation. To be a claim against the decedent’s estate, we have
    required “a demand . . . upon the estate for satisfaction of [an]
    obligation.” In re Estate of Feuerhelm, 
    215 Neb. 872
    , 875, 
    341 N.W.2d 342
    , 345 (1983). Here, it is clear that Fogarty made
    a demand on Pearl’s trust assets, not her probate estate. The
    application requested payment of fees and costs for services
    incurred during Pearl’s lifetime “if it be within the authority
    of the Pearl R. Giventer [Revocable] Trust to do so.” Further
    demonstrating that Fogarty sought fees from the trust rather
    than from the probate estate is the fact that his application was
    filed in the trust proceedings. The question becomes whether
    a demand against the trust assets is a claim against the dece-
    dent’s estate for the purposes of §§ 30-2485 and 30-2486. We
    conclude that it is not.
    We read the language of §§ 30-2485 and 30-2486 to require
    claims to be timely filed against the probate estate. Both
    sections are part of the Nebraska Probate Code and apply
    to “claims against the decedent’s estate.” In In re Estate of
    Chrisp, 
    276 Neb. 966
    , 975, 
    759 N.W.2d 87
    , 95 (2009), we
    read references to “‘estate’” in our probate code to include
    only the “‘probate estate.’” In doing so, we recognized that
    the definition of “[e]state” for purposes of the probate code
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    includes “the property of the decedent, trust, or other person
    whose affairs are subject to the Nebraska Probate Code.” See
    § 30-2209(12) (emphasis supplied). We interpreted the refer-
    ence to “trust” in the definition of “estate” to refer to certain
    limited circumstances in which courts in probate proceedings
    are authorized to exercise jurisdiction over trusts, but specifi-
    cally rejected the notion that administration of a probate estate
    necessarily includes trust property in which the decedent had
    an interest. Indeed, as referenced above, we held that a county
    court does not have jurisdiction in a probate proceeding to
    consider a petition against a trust to determine whether the
    trust is liable for, among other things, claims against the pro-
    bate estate. See, § 30-3850(a)(3); In re Estate of Chrisp, 
    supra.
    See, also, In re Estate of George, 
    265 P.3d 222
     (Wyo. 2011)
    (probate court did not have jurisdiction over trust, and creditor
    could not bootstrap rejection of claim against probate estate
    into right to file claim against trust, where limitations period
    for filing claim against trust had expired).
    Drawing this distinction between demands against the pro-
    bate estate and those against the trust is in harmony with other
    provisions of our probate code. Section 30-2401, cited above,
    indicates that probate procedures relating to the rights of credi-
    tors apply only to property that passes through the decedent’s
    probate estate:
    The power of a person to leave property by will, and
    the rights of creditors, . . . are subject to the restrictions
    and limitations contained in this code to facilitate the
    prompt settlement of estates. Upon the death of a person,
    his real and personal property devolves to the persons
    to whom it is devised by his last will . . . subject . . . to
    rights of creditors . . . .
    If property of the probate estate is distributed before payment
    of creditors whose claims are not barred, those creditors may
    pursue their claims against the distributees, not nonprobate
    transferees such as trust beneficiaries. See § 30-2404. In fact,
    all proceedings and actions to enforce creditors’ claims against
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    the decedent’s estate are governed by the procedure in the
    probate code, with the intention of forcing creditors initially
    to engage in the probate process. 
    Id.
     See, also, Unif. Probate
    Code § 3-104, 8 (part II) U.L.A. 31 (2013) (process for making
    claims against decedent’s estate designed to force decedents’
    creditors to assert their claims against duly appointed personal
    representatives). See, also, In re Estate of Chrisp, 
    supra
     (non-
    testamentary trust is not subject to procedures for administra-
    tion of decedent’s estate); In re Estate of Rosso, 
    270 Neb. 323
    ,
    
    701 N.W.2d 355
     (2005) (personal representative’s duty to settle
    and distribute estate does not extend to nontestamentary assets
    that do not lawfully belong to estate).
    Requiring Fogarty to ask the probate estate, rather than
    the trust estate, for predeath fees and expenses to satisfy the
    limitations period is also consistent with the purposes of the
    nonclaim statute. The purpose of § 30-2485 is to facilitate and
    expedite proceedings to distribute a decedent’s estate, includ-
    ing an early appraisal of the respective rights of interested
    persons, which include creditors, and prompt settlement of
    demands against the estate. See, § 30-2209(21); In re Estate
    of Feuerhelm, 
    215 Neb. 872
    , 
    341 N.W.2d 342
     (1983). As a
    result, the probate court or the personal representative can
    readily ascertain the nature and extent of a decedent’s debts,
    determine whether any sale of property is necessary to satisfy
    the decedent’s debts, and project a probable time at which
    the decedent’s estate will be ready for distribution. 
    Id.
     Once
    this process is complete, a creditor of the probate estate may
    eventually recover from the decedent’s revocable trust, if one
    exists. See § 30-3850(a)(3) (“[a]fter the death of a settlor,
    and subject to the settlor’s right to direct the source from
    which liabilities will be paid, the property of a trust that was
    revocable at the settlor’s death is subject to claims of the set-
    tlor’s creditors, . . . to the extent the settlor’s probate estate is
    inadequate to satisfy those claims . . .”). See, also, In re Estate
    of Chrisp, 
    276 Neb. 966
    , 
    759 N.W.2d 87
     (2009) (personal
    representative has no interest in decedent’s validly created
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    nontestamentary trust except to assert trust’s liability for speci-
    fied claims against probate estate and statutory allowances that
    probate estate cannot satisfy). But because Fogarty did not
    file a timely claim against the probate estate, his entitlement
    to predeath fees and expenses from the probate estate was not
    under consideration.
    Fogarty suggests that his filing against the trust estate in
    the trust proceedings satisfied the nonclaim statute because
    Paul, Marlys, Wells Fargo, and Teichman all had notice of
    the filing and consequently of his claim. But we have held
    that mere notice to a representative of an estate regarding a
    possible demand or claim against the estate does not consti-
    tute presenting or filing a claim under § 30-2486. See, J.R.
    Simplot Co. v. Jelinek, 
    275 Neb. 548
    , 
    748 N.W.2d 17
     (2008);
    In re Estate of Feuerhelm, 
    supra.
     “If notice were accorded the
    stature of a claim, the resultant state of flux and uncertainty
    would frustrate and avoid the purpose and objectives of the
    nonclaim statute.” In re Estate of Feuerhelm, 
    215 Neb. at 875
    ,
    
    341 N.W.2d at 345
    .
    Lastly, Fogarty seems to submit that his claim was preserved
    because, as he contends, he was entitled to payment from the
    trust estate. He asserts that his method of seeking payment of
    predeath fees and expenses from the trust assets conformed to
    the terms of Pearl’s trust, which allowed the trustee, under cer-
    tain circumstances, to pay “claims against the Settlor’s estate”
    directly to the creditor or through the personal representative of
    the estate. Moreover, Fogarty implies that the trust is liable for
    his claims against Pearl’s estate pursuant to § 30-3850(a)(3).
    But the liability of Pearl’s trust is not an issue before us. As
    we have already noted, this appeal arises from the probate
    proceedings involving Pearl’s estate, not the trust proceedings.
    In the context of the probate proceedings, the county court did
    not have jurisdiction to rule on whether Fogarty could receive
    predeath fees and expenses from the trust, and consequently,
    neither do we. See In re Estate of Chrisp, 
    supra.
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    For the reasons articulated above, the county court did not
    err in denying as time barred Fogarty’s request for the fees and
    expenses he incurred before Pearl died.
    2. Fees Incurred After Pearl’s Death
    Fogarty and Teichman next argue that they were entitled
    to fees and expenses incurred after Pearl’s death and that the
    county court erred by not ordering that any of their fees and
    expenses be paid. They base this claim for fees and expenses
    on the attempt by Teichman as the nominated personal rep-
    resentative and Fogarty serving as his attorney to revive the
    appeal in cases Nos. A-11-806 and A-11-974 and to probate the
    2012 will. Section 30-2481 governs this matter and provides,
    “If any personal representative or person nominated as per-
    sonal representative defends or prosecutes any proceeding in
    good faith, whether successful or not he is entitled to receive
    from the estate his necessary expenses and disbursements
    including reasonable attorneys’ fees incurred.” We have held
    that a person seeking to recover fees under § 30-2481 “must
    first establish good faith, and then prove (1) that the claimed
    expenses and disbursements were necessary and (2) that the
    attorney fees were necessary and reasonable.” In re Estate of
    Odineal, 
    220 Neb. 168
    , 169, 
    368 N.W.2d 800
    , 801 (1985).
    Before turning to Fogarty and Teichman’s arguments, however,
    we again review the governing standard of review.
    (a) Standard of Review
    As we have already discussed, appeals of matters arising
    under the Nebraska Probate Code are reviewed for error on the
    record. In re Estate of Hutton, 
    306 Neb. 579
    , 
    946 N.W.2d 669
    (2020). When reviewing a judgment for errors on the record,
    the inquiry is whether the decision conforms to the law, is sup-
    ported by competent evidence, and is neither arbitrary, capri-
    cious, nor unreasonable. 
    Id.
     Fogarty and Teichman’s claim
    for fees and expenses for actions taken after Pearl’s death,
    however, is made under §§ 30-2481 and 30-2482. We have
    said that ordinarily, the fixing of reasonable compensation,
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    fees, and expenses, pursuant to these sections, is within the
    sound discretion of the county court. See In re Estate of
    Odineal, 
    supra.
    Our prior cases demonstrate that both of these standards
    of review—errors on the record and abuse of discretion—can
    come into play when compensation is sought under these sec-
    tions. While the fixing, i.e., the determination of the amount,
    of reasonable compensation, fees, and expenses will ordinarily
    be reviewed for abuse of discretion, we have reviewed deter-
    minations antecedent to the fixing of the amount of reasonable
    compensation, fees, and expenses under an errors on the record
    standard. For example, in In re Estate of Watkins, 
    243 Neb. 583
    , 
    501 N.W.2d 292
     (1993), we affirmed a county court’s
    award of compensation to a personal representative and his
    lawyer after finding that the county court’s determination that
    the personal representative acted in good faith was supported
    by evidence. Similarly, in In re Estate of Reimer, 
    229 Neb. 406
    , 
    427 N.W.2d 293
     (1988), we affirmed a county court’s
    award of compensation to a nominated personal representa-
    tive and his attorney after finding that competent evidence
    supported the county court’s determination that the nominated
    personal representative’s effort to probate a will were done in
    good faith. We will proceed in the same manner here.
    (b) County Court’s Reasons for
    Denying Compensation
    Fogarty and Teichman argue that the reasons provided by the
    county court for denying them compensation under § 30-2481
    were legally erroneous. Although the county court’s 2020 order
    in which it modified its reasons for denying the fee request
    filed by Fogarty and Teichman is not perfectly clear to us in
    all respects, we understand it to have denied compensation for
    essentially three reasons: (1) Teichman was merely nominated
    as a personal representative in the 2012 will, but did not actu-
    ally serve in that capacity; (2) there were insufficient funds
    in the probate estate to compensate Fogarty and Teichman;
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    and (3) the services Fogarty and Teichman provided in attempt-
    ing to probate the 2012 will were not “necessary” for purposes
    of § 30-2481 because the 2012 will was unenforceable. As we
    explain below, we agree with Fogarty and Teichman that the
    county court committed errors of law by relying on each of
    these reasons.
    To the extent the county court denied fees because Teichman
    was merely a nominated personal representative and did not
    actually serve as personal representative, that was an error of
    law. It bears repeating that § 30-2481, the statute under which
    Fogarty and Teichman sought compensation, provides, “If any
    personal representative or person nominated as personal rep-
    resentative defends or prosecutes any proceeding in good faith,
    whether successful or not he is entitled to receive from the
    estate his necessary expenses and disbursements including rea-
    sonable attorneys’ fees incurred.” (Emphasis supplied.) Section
    30-2481 expressly provides that a person that is merely nomi-
    nated as a personal representative may receive from the estate
    necessary expenses and disbursements if he or she defends or
    prosecutes a proceeding in good faith, whether that effort is
    successful or not. The fact that Teichman was merely nomi-
    nated as personal representative under the 2012 will was not a
    legally viable reason to deny Fogarty and Teichman’s claim for
    fees. See In re Estate of Reimer, 
    supra.
    We find that the county court also committed an error of
    law when it found that Fogarty and Teichman were not entitled
    to compensation under § 30-2481 on the grounds that there
    were insufficient funds in the probate estate. Assuming the
    funds in the probate estate were, in fact, inadequate to pay the
    compensation Fogarty and Teichman sought, the statute did not
    authorize the county court to deny the claim for that reason.
    Fogarty and Teichman sought a determination of the fees and
    expenses, that is, administration expenses, to which they were
    entitled under § 30-2481. See In re Estate of Reimer, 
    supra.
     If
    a probate estate is inadequate to pay a creditor’s claims, costs
    of administration, or certain other expenses, a mechanism
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    exists for those entitled to funds from the probate estate to pur-
    sue property that the decedent placed in a revocable trust that
    was revocable at his or her death. See § 30-3850(a)(3). Even if
    there were inadequate funds in the probate estate to compen-
    sate Fogarty and Teichman, the county court was still obligated
    to determine what they were entitled to receive.
    The county court seems to have concluded that Fogarty and
    Teichman did not comply with the procedural requirements
    of § 30-3850(a)(3) and thus could not have had any entitle-
    ment to compensation satisfied from the trust. The county
    court had no authority, however, to make such a determination
    in the probate proceeding. As we have already said, we have
    expressly held that a county court does not have jurisdic-
    tion in a probate proceeding to consider a petition against a
    trust under § 30-3850(a)(3). See In re Estate of Chrisp, 
    276 Neb. 966
    , 
    759 N.W.2d 87
     (2009). Any failure on the part of
    Fogarty and Teichman to comply with the procedural require-
    ments of § 30-3850(a)(3) could be considered only in the trust
    proceeding.
    This leaves the county court’s conclusion that none of the
    services Fogarty and Teichman provided were “necessary”
    under § 30-2481, because the 2012 will was unenforceable.
    Here, the county court appears to have concluded that the serv­
    ices provided were not necessary either because the 2012 will
    was unenforceable or because Fogarty and Teichman should
    have known that the 2012 will was unenforceable. We find
    either determination to be legally erroneous.
    [6] As discussed above, a nominated personal representa-
    tive and his or her attorney cannot be denied compensation for
    their services under § 30-2481 on the grounds that they were
    unsuccessful in defending or prosecuting a proceeding. The
    statute expressly provides that when a personal representative
    or person nominated as a personal representative defends or
    prosecutes any proceeding in good faith, “whether successful
    or not,” he or she is entitled to receive from the estate his or
    her necessary expenses including reasonable attorneys’ fees.
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    § 30-2481 (emphasis supplied). If litigation efforts pursued
    by a personal representative and his or her attorney could be
    deemed not “necessary” under § 30-2481 simply because they
    were unsuccessful, the language providing that the personal
    representative or nominated personal representative is entitled
    to receive funds from the estate “whether successful or not”
    would be read out of the statute. It is not within the province
    of the courts to read a meaning into a statute that is not there
    or to read anything direct and plain out of the statute. Seivert
    v. Alli, 
    309 Neb. 246
    , 
    959 N.W.2d 777
     (2021). The mere fact
    that the 2012 will was found to be unenforceable was not, in
    itself, a legally valid basis to deny Teichman’s claim for fees
    and expenses.
    We also believe the county court committed an error of law
    to the extent it concluded that because Fogarty and Teichman
    should have known that the 2012 will was unenforceable, the
    services provided were not “necessary” under § 30-2481. As
    we have emphasized, that statute provides that a personal rep-
    resentative or nominated personal representative is entitled to
    receive from the estate “necessary expenses and disbursements
    including reasonable attorneys’ fees incurred” for defending or
    prosecuting a proceeding in good faith. § 30-2481. We have
    previously interpreted “good faith” in § 30-2481 to refer to
    “honesty in fact concerning conduct or a transaction” and clari-
    fied that a person can act in good faith despite “mere negli-
    gence or an honest mistake.” In re Estate of Watkins, 
    243 Neb. 583
    , 590, 
    501 N.W.2d 292
    , 296 (1993).
    In our view, the language of § 30-2481 is most sensibly
    understood as providing that if a personal representative or
    nominated personal representative prosecutes or defends a
    proceeding in good faith, he or she is entitled to receive com-
    pensation from the estate for those expenses and disburse-
    ments that were reasonably needed to defend or prosecute that
    proceeding. As we understand it, the word “necessary” limits
    the expenses that can be recovered to those that were required
    to pursue the litigation position in the proceeding at issue.
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    We see no basis to conclude that it allows the county court to
    deny fees because it finds that the personal representative or
    nominated personal representative who prosecuted or defended
    proceedings in good faith should have known that the litigation
    position it took lacked merit.
    We find confirmation in this understanding of § 30-2481
    by comparing it to similar statutes from other states. Section
    30-2481 mirrors Unif. Probate Code § 3-720, 8 (part II) U.L.A.
    228 (2013). Many other states have enacted statutes that are
    very similar to this provision of the Uniform Probate Code, but
    with a key addition. Maryland, to take one illustrative example,
    has a statute that provides, “A personal representative or person
    nominated as personal representative who defends or pros-
    ecutes a proceeding in good faith and with just cause shall be
    entitled to receive necessary expenses and disbursements from
    the estate regardless of the outcome of the proceeding.” 
    Md. Code Ann., Est. & Trusts § 7-603
     (West 2019) (emphasis sup-
    plied). Several other states have similar statutes that also make
    a personal representative’s or nominated personal representa-
    tive’s right to compensation from the estate for prosecuting or
    defending proceedings regarding a will depend on a showing
    that he or she pursued the proceedings in good faith and with
    just cause. See, e.g., 
    Iowa Code § 633.315
     (2021); 
    Kan. Stat. Ann. § 59-1504
     (2021).
    [7] Those states that have added a “just cause” provision
    to their statutes similar to § 30-2481 have, by that addition,
    authorized courts to deny compensation to a personal repre-
    sentative or nominated personal representative who should
    have known that he or she was pursuing a litigation position
    that lacked merit. In contrast to these statutes, § 30-2481 does
    not include a reference to “just cause” or any similar concept.
    Under § 30-2481, a personal representative or nominated per-
    sonal representative is entitled to receive compensation if he
    or she prosecutes or defends a proceeding in good faith. The
    intent of the Legislature is expressed by omission as well as by
    inclusion. Nelssen v. Ritchie, 
    304 Neb. 346
    , 
    934 N.W.2d 377
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    (2019). While perhaps a policy argument could be made that
    a personal representative or nominated personal representative
    should not be able to recover expenses incurred in pursuit of a
    litigation position that he or she should know is meritless, we
    find our Legislature, unlike that of some other states, has not
    adopted such a policy.
    To be clear, it is not our view that the objective merits of a
    legal position taken by a personal representative or nominated
    personal representative could never be relevant to a deter-
    mination of whether he or she, in the words of § 30-2481,
    “defend[ed] or prosecute[d] [a] proceeding in good faith.”
    While we have interpreted “good faith” in the context of
    § 30-2481 to refer to the subjective mindset of the personal
    representative or nominated personal representative, see In re
    Estate of Watkins, 
    243 Neb. 583
    , 
    501 N.W.2d 292
     (1993), we
    believe the objective merits of a legal position could be rel-
    evant to whether a person pursued it with an honest belief in
    its validity. See, e.g., Enders v. Parker, 
    66 P.3d 11
    , 17 (Alaska
    2003) (concluding that in making findings concerning good
    faith under statute similar to § 30-2481, court should consider
    whether nominated personal representative had “reasonably
    arguable grounds” to challenge will). In this case, however, the
    county court did not find that the lack of a reasonable basis
    to contend that the 2012 will was enforceable was merely
    evidence of the absence of good faith; it found that because
    Fogarty and Teichman should have known the 2012 will was
    unenforceable, they were not entitled to compensation. As we
    have explained, this was legally erroneous.
    (c) Marlys’ Arguments for Affirmance
    We have said very little to this point about Marlys’ argu-
    ments regarding the county court’s denial of Fogarty and
    Teichman’s claim for fees and expenses incurred after Pearl’s
    death. That is because, for the most part, Marlys does not argue
    that the county court’s reasons for denying their claim were
    correct. Instead, Marlys argues that the county court’s decision
    should be affirmed for other reasons.
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    Marlys’ arguments for affirming the county court’s denial of
    the claim for fees and expenses Fogarty and Teichman incurred
    after Pearl’s death fall into several categories. She argues that
    they should not receive compensation because their efforts did
    not benefit the estate. She argues they should not receive com-
    pensation because Fogarty pursued his own interest, sought to
    punish Paul, and violated his duties as an attorney and because
    Fogarty and Teichman disfavored the true beneficiaries and
    violated their duty to the estate. Finally, she argues that certain
    efforts undertaken by Fogarty and Teichman were not neces-
    sary. As we will explain, we disagree with Marlys that we can
    affirm the county court’s order on any of these bases.
    We begin by addressing Marlys’ argument that we should
    affirm the county court’s order on the grounds that the efforts
    of Fogarty and Teichman did not benefit the estate. In In re
    Estate of Watkins, we rejected an argument that county courts
    could consider “‘benefit to the estate’ as a judicially fashioned
    criterion to determine whether a personal representative may
    receive compensation for services rendered.” 
    243 Neb. at 588
    ,
    
    501 N.W.2d at 296
    . We observed that a personal representa-
    tive’s or nominated personal representative’s entitlement to
    compensation was controlled by statute and that those statutes
    contained no requirement that the services be a benefit to
    the estate.
    Marlys argues, without referencing our decision in In re
    Estate of Watkins, that if the efforts of a personal representative
    or nominated personal representative do not benefit the estate,
    he or she is not entitled to compensation. For support, she
    relies on In re Estate of Odineal, 
    220 Neb. 168
    , 
    368 N.W.2d 800
     (1985), contending that in that case, we affirmed a county
    court’s denial of compensation to a personal representative
    because he was pursuing his own interests rather than those of
    the estate. Although we found that the county court did not err
    in denying compensation in that case, we did so after finding
    that the county court did not err in concluding the personal
    representative did not act in good faith. We reject Marlys’
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    argument that a court can deny a claim for fees and expenses
    filed under § 30-2481 merely because the efforts of the per-
    sonal representative or nominated personal representative were
    not a benefit to the estate.
    In her next category of arguments, Marlys contends that the
    county court order should be affirmed because Fogarty and
    Teichman, particularly Fogarty, were attempting to probate
    the 2012 will, not because they believed it was enforceable,
    but because they wanted to increase their own compensation
    and punish Paul. As just mentioned above, we held in In re
    Estate of Odineal that the county court did not err by finding
    that a nominated personal representative who pursued legal
    action solely to generate a fee—and therefore did not act in
    good faith—was not entitled to compensation under § 30-2481.
    Although the absence of good faith is a basis upon which a
    court could deny compensation to a nominated personal repre-
    sentative who prosecuted or defended legal proceedings, it is
    not, given the county court’s findings, a basis upon which we
    could affirm in this case.
    [8] An argument could be made that the county court affirm­
    atively found in this case that Fogarty and Teichman did act in
    good faith. In its 2020 order, the county court stated that it “did
    not rule that Fogarty and Teichman acted in bad faith as the
    evidence was insufficient to prove the same” and that Fogarty
    and Teichman “believed [that] they had a duty to pursue the
    [2012] will and that they proceeded in good faith.” If the
    county court had affirmatively rejected Marlys’ contention that
    Fogarty and Teichman did not act in good faith, we could not
    consider an argument by Marlys that such a determination was
    erroneous. An appellee’s argument that a lower court’s decision
    should be upheld on grounds specifically rejected below con-
    stitutes a request for affirmative relief, and the appellee must
    cross-appeal in order for that argument to be considered. Weber
    v. Gas ’N Shop, 
    278 Neb. 49
    , 
    767 N.W.2d 746
     (2009). Marlys
    did not file a cross-appeal in this case.
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    Although certain language in the county court’s 2020 order
    might be read to suggest the county court found that Fogarty
    and Teichman acted in good faith, we ultimately conclude that
    it did not reach that issue. The county court did not expressly
    state that it found Fogarty and Teichman acted in good faith for
    purposes of § 30-2481, and it was not necessary for the county
    court to make such a determination, because it denied com-
    pensation for other reasons. But even though we find that the
    county court did not reach the question of whether Fogarty and
    Teichman acted in good faith, it would not be appropriate for
    this appellate court, in reviewing the county court’s decision
    for error appearing on the record, to make a factual finding
    about whether Fogarty and Teichman acted in good faith before
    the county court has passed on the question. See Weber v. Gas
    ’N Shop, supra. That is a determination that must be made by
    the county court on remand. See Darling Ingredients v. City of
    Bellevue, 
    309 Neb. 338
    , 
    960 N.W.2d 284
     (2021).
    Finally, Marlys argues that we should affirm the county
    court’s order denying compensation to Fogarty and Teichman
    because various actions they took were not necessary. We
    have explained above that we do not understand § 30-2481 to
    allow the county court to find that fees and expenses were not
    necessary because they were incurred in litigation efforts that
    were unsuccessful or in litigation efforts that the personal rep-
    resentative or nominated personal representative should have
    known would be unsuccessful. A personal representative or
    nominated personal representative could, however, prosecute
    or defend proceedings in good faith and still seek compensa-
    tion for actions that were not necessary to that effort. The
    county court’s 2020 order alluded to its concern that certain
    actions undertaken by Fogarty and Teichman were not neces-
    sary to probating the 2012 will. The county court has not, how-
    ever, made a determination as to the necessity of the claimed
    expenses, and, as with the determination of whether Fogarty
    and Teichman acted in good faith, it would not be appropriate
    for this court to make that determination in the first instance.
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    That too is a determination that must be made, if necessary, by
    the county court on remand. See Darling Ingredients, 
    supra.
    (d) Summary
    To summarize our conclusions regarding the county court’s
    denial of compensation for Fogarty and Teichman’s activities
    after Pearl’s death, we find that the county court’s reasons for
    denying compensation were legally erroneous. Additionally, we
    find that while there may be other reasons to deny Fogarty and
    Teichman’s claim for fees and expenses incurred after Pearl’s
    death either in whole or in part, it would not be appropriate for
    this court to determine whether it would be appropriate to do so
    in the first instance. Accordingly, we reverse the county court’s
    denial of compensation to Fogarty and Teichman for actions
    taken after Pearl’s death and remand the cause for the county
    court to determine, in light of this opinion and on the existing
    record, whether and to what extent Fogarty and Teichman are
    entitled to compensation for those actions.
    3. Remaining Requests for Relief
    In addition to their challenges to the county court’s order
    regarding fees and expenses, Fogarty and Teichman assign that
    the county court erred in not declaring that “all claims of Paul
    and Marlys[] (a) are without merit” and “(b) are res judicata
    and/or claim precluded against [Fogarty] and [Teichman] by
    them or any person in privity with them.” (Emphasis omit-
    ted.) They ask that we issue a declaration stating that all “ad
    homine[m] slanders” in claims and defenses by Paul and
    Marlys are without merit and precluding all claims or theo-
    ries that Paul, Marlys, and anyone in privity with them may
    have against Fogarty and Teichman. Brief for appellants at 36
    (emphasis omitted).
    Even if this court could extend the affirmative relief Fogarty
    and Teichman request, we cannot discern a meaningful legal
    argument in their brief as to why it would be justified. Fogarty
    and Teichman allude to the doctrine of claim preclusion, but
    they do not explain how it applies in this particular case.
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    Consequently, they have made no showing that the relief they
    seek is warranted.
    V. CONCLUSION
    We reverse the county court’s denial of compensation for
    Fogarty’s and Teichman’s activities after Pearl’s death and
    remand the cause for the county court to determine, on the
    existing record, whether and to what extent they are entitled
    to their fees and expenses during that period. We otherwise
    affirm.
    Affirmed in part, and in part reversed
    and remanded with directions.