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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE ESTATE OF BALVIN
Cite as 295 Neb. 346
In re Estate of George Edward Balvin, Sr., deceased.
George Balvin, Jr., appellant,
v. K evin Balvin, appellee.
___ N.W.2d ___
Filed December 16, 2016. No. S-15-1033.
1. Appeal and Error. An appellate court does not consider errors which
are argued but not assigned.
2. Decedents’ Estates: Appeal and Error. An appellate court reviews
probate cases for error appearing on the record made in the county court.
3. Decedents’ Estates: Judgments: Appeal and Error. When reviewing
questions of law in a probate matter, an appellate court reaches a conclu-
sion independent of the determination reached by the court below.
4. Decedents’ Estates: Appeal and Error. The probate court’s factual
findings have the effect of a verdict, and an appellate court will not set
those findings aside unless they are clearly erroneous.
5. Decedents’ Estates: Trusts. Neb. Rev. Stat. § 30-2715 (Reissue 2016)
allows for nonprobate transfers upon death in the form of nontestamen-
tary trusts, and nontestamentary trust assets are not subject to probate
other than for specific statutory expenses.
6. Contracts. A contract written in clear and unambiguous language is not
subject to interpretation or construction and must be enforced according
to its terms.
7. Contracts: Words and Phrases. A contract is ambiguous when a word,
phrase, or provision in the contract has, or is susceptible of, at least two
reasonable but conflicting interpretations or meanings.
8. Contracts. Whether a contract is ambiguous is a question of law.
9. Decedents’ Estates: Wills: Joint Tenancy. Property owned in joint
tenancy passes to the surviving joint tenant by virtue of the nature of the
tenancy and not under the law of descent and distribution or by virtue of
the provisions of the will of the first joint tenant to die.
10. Decedents’ Estates: Insurance. Neb. Rev. Stat. § 30-2715(a) (Reissue
2016) provides, in part, that a provision for a nonprobate transfer on
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE ESTATE OF BALVIN
Cite as 295 Neb. 346
death in an insurance policy or other written instrument of a similar
nature is nontestamentary; therefore, nonprobate life insurance benefits
cannot be used to set off a portion of an intestate estate.
11. Decedents’ Estates. Under Neb. Rev. Stat. §§ 30-2209 and 30-2303
(Reissue 2016), a decedent’s daughter-in-law is not an heir at law of the
intestate estate.
Appeal from the County Court for Douglas County: M arcena
M. Hendrix, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
Michael D. Kozlik and William G. Stockdale, of Harris &
Associates, P.C., L.L.O., for appellant.
William F. McGinn, of McGinn, McGinn, Springer & Noethe
Law Firm, for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
K elch, J.
INTRODUCTION
This appeal arises from a dispute concerning an intestate
estate. On appeal, one of the decedent’s two children chal-
lenges the order of the county court for Douglas County
that approved the final accounting and ordered distribution
accordingly. He further contends that the county court erred
in naming the decedent’s daughter-in-law as an heir at law of
the intestate estate. We conclude that the county court erred in
including certain nonprobate assets in the intestate estate and in
naming the decedent’s daughter-in-law as an heir at law, but we
determine that the county court did not err in excluding certain
assets from the intestate estate. Therefore, we affirm in part
and in part reverse, and remand to the county court for further
proceedings consistent with this opinion.
FACTS
The parties stipulated to the relevant facts, which we sum-
marize as follows:
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE ESTATE OF BALVIN
Cite as 295 Neb. 346
On March 17, 2004, George Edward Balvin, Sr. (George
Sr.), and Rita J. Balvin, then Florida residents, executed a
revocable trust agreement (the Balvin Family Trust) as grant-
ors and as trustees. The Balvin Family Trust designated the
couple’s son Kevin Balvin as the successor trustee upon the
last to die of George Sr. and Rita. The Balvin Family Trust
provided for equal division, per stirpes, of all remaining assets
of the trust to Kevin and George Balvin, Jr. (George Jr.), the
couple’s other son. On March 17, George Sr. and Rita con-
veyed their Florida real estate to the Balvin Family Trust by
recorded deed.
On March 20, 2010, George Sr. opened an account at Mutual
of Omaha Bank with an initial deposit of $69,446.97. All of
these funds belonged to George Sr., as Rita had died the year
before. The account’s agreement form, incorporated into the
stipulation, lists Kevin as an authorized signer. The parties
stipulated that this agreement form conforms to Neb. Rev. Stat.
§ 30-2719(a) (Reissue 2016). The provision for a “Multiple-
Party Account” with right of survivorship is marked with an
“X” but is not initialed, as directed in the agreement form
and in § 30-2719(a), which states that a “contract of deposit
that contains provisions in substantially the form provided in
this subsection establishes the type of account provided.” The
agreement form shows no other “Beneficiary Designation” or
“Rights of Survivorship” selection. On March 24, Kevin pur-
chased a Volvo automobile titled to him and his wife, Sarah
Balvin, using $27,000 drawn from the Mutual of Omaha
Bank account.
George Sr. died in Omaha on May 10, 2011. The parties do
not dispute that George Sr. died intestate. The county court
appointed Kevin and George Jr. as joint personal representa-
tives of George Sr.’s estate.
On the date of George Sr.’s death, the Mutual of Omaha
Bank account carried a balance of $28,034.81.
Following George Sr.’s death, Kevin, acting as the succes-
sor trustee of the Balvin Family Trust, sold the Florida real
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE ESTATE OF BALVIN
Cite as 295 Neb. 346
estate. He then executed a warranty deed dated April 20, 2012,
individually and as trustee of the Balvin Family Trust. On
April 27, a closing agency deposited the proceeds from the
sale of the Florida real estate, amounting to $69,164.35, into
the trust account of a Council Bluffs, Iowa, law firm represent-
ing Kevin.
The corpus of the Balvin Family Trust included a check-
ing account in Florida. On April 27, 2012, the last check
drawn from that account, payable to Kevin in the amount of
$3,645.19, was deposited in the law firm’s trust account. A
refund of $126.41 from a Florida utilities company was also
deposited into the law firm’s trust account.
On July 14, 2011, life insurance policy proceeds of
$30,027.12 were issued to Kevin, whom the parties stipulated
was the designated beneficiary, and deposited in his personal
checking account. Kevin deposited another $6,000 into his
personal checking account that he received as designated ben-
eficiary of a burial benefit from “Metal Lathers Union #46.”
On July 29, Sarah mailed George Jr. a $15,013.56 check
drawn from a joint account that she shared with Kevin. The
memorandum line of the check read, “50% life Insurance.” On
August 15, Kevin mailed George Jr. a $3,000 check from the
same account, with a memorandum line stating “1/2 of Death
Benef.” George Jr. received and deposited both checks.
On November 4, 2013, Kevin filed a petition in county
court, probate division, for complete settlement of the estate,
along with an “Amended Inventory.” The parties did not
stipulate to this amended inventory. Kevin requested that
the county court determine that George Sr. had died intes-
tate, determine his heirs, approve the “Final Accounting filed
herein,” approve previous distributions, and direct distribution
of the estate.
On December 2, 2014, the county court conducted a hearing
where the parties presented the stipulated facts above.
At oral argument, Kevin’s counsel informed this court
that the parties had presented additional evidence at another
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE ESTATE OF BALVIN
Cite as 295 Neb. 346
hearing. However, a bill of exceptions for that hearing is not in
the record before us.
On September 30, 2015, the county court filed its “Formal
Order for Complete Settlement After Informal Intestate
Proceeding.” The county court found that George Sr. had
died intestate, leaving his sons, Kevin and George Jr., and his
daughter-in-law Sarah as heirs. The county court approved
Kevin’s final accounting as personal representative and incor-
porated it into the order, approved the reported distributions
already made, and directed Kevin to deliver and distribute title
and assets of the estate accordingly.
Kevin’s final accounting of the intestate estate, as approved
by the county court, included the net proceeds from the sale
of the Florida residence, which had been transferred to the
law firm’s trust account. The final accounting did not include
the Mutual of Omaha Bank account as part of the intestate
estate, nor did it include the $27,000 that Kevin withdrew
from that account to purchase the Volvo automobile. Kevin’s
final accounting offset George Jr.’s share of the intestate estate
by the voluntary payments that Kevin and Sarah had made to
George Jr. from life insurance proceeds.
George Jr. now appeals the formal order for complete
settlement.
ASSIGNMENTS OF ERROR
George Jr. assigns that the county court erred in (1) ordering
the distribution of the Florida residence sale proceeds, held in
trust, as part of the intestate estate; (2) failing to include the
Mutual of Omaha Bank account as an asset of the intestate
estate; (3) failing to include in the intestate estate the $27,000
that Kevin “converted” from George Sr.’s checking account to
purchase the Volvo automobile; (4) allowing an offset of the
voluntary payments of insurance proceeds by Kevin and Sarah
to George Jr. against George Jr.’s share of the intestate estate
and trust assets; and (5) finding that Sarah, the decedent’s
daughter-in-law, was an heir at law of the intestate estate.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE ESTATE OF BALVIN
Cite as 295 Neb. 346
[1] We note that George Jr. also argues, but does not specifi-
cally assign, that the county court erroneously included in the
intestate estate sums sourced from Bank of America accounts
of which the Balvin Family Trust was partly comprised. But
an appellate court does not consider errors which are argued
but not assigned. State v. Sellers, 290 Neb. 18, 858 N.W.2d
577 (2015).
STANDARD OF REVIEW
[2-4] An appellate court reviews probate cases for error
appearing on the record made in the county court. In re Estate
of Greb, 288 Neb. 362, 848 N.W.2d 611 (2014). When review-
ing questions of law in a probate matter, an appellate court
reaches a conclusion independent of the determination reached
by the court below. Id. The probate court’s factual findings
have the effect of a verdict, and an appellate court will not set
those findings aside unless they are clearly erroneous. Id.
ANALYSIS
Proceeds From Sale of
Florida R esidence
George Jr. asserts that the county court erred in ordering
the distribution of the proceeds from the sale of the Florida
residence as part of the intestate estate. In 2004, George Sr.
and Rita conveyed their Florida residence by recorded deed
to the Balvin Family Trust, a revocable inter vivos trust. The
trust named Kevin as the successor trustee and provided that
upon the death of George Sr. and Rita, the residence was to be
transferred in equal shares to Kevin and George Jr. However,
after his parents’ deaths, Kevin sold the residence, transferred
the net proceeds to the trust account of the law firm represent-
ing him, and listed the proceeds as part of the intestate estate
in his final accounting. George Jr. claims that the court erred
in approving the distribution of the Florida residence proceeds
because they were nonprobate property of the Balvin Family
Trust and not property of the estate. On the other hand, Kevin
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IN RE ESTATE OF BALVIN
Cite as 295 Neb. 346
contends that the formal order for complete settlement after
informal intestate proceedings was “retrospective” and not
in error. Brief for appellee at 6. However, Kevin does not
explain how terming the order “retrospective” refutes George
Jr.’s claims.
[5] As noted by George Jr., Neb. Rev. Stat. § 30-2715
(Reissue 2016) allows for nonprobate transfers upon death
in the form of nontestamentary trusts, which include inter
vivos trusts like the Balvin Family Trust. See, also, In re
Conservatorship of Franke, 292 Neb. 912, 928, 875 N.W.2d
408, 420 (2016) (recognizing that “the Nebraska Probate Code
authorizes nontestamentary, nonprobate transfers on death,
including transfers through trusts”). Clearly, the Balvin Family
Trust created by George Sr. and Rita was nontestamentary,
and therefore, the property of the Balvin Family Trust was not
subject to probate other than for specific statutory expenses of
the estate, not applicable here, as allowed by Neb. Rev. Stat.
§ 30-3850(3) (Reissue 2016). See, also, In re Estate of Chrisp,
276 Neb. 966, 759 N.W.2d 87 (2009). Because the residence in
Florida and the proceeds therefrom were property of the Balvin
Family Trust and not subject to probate, the county court erred
in including such property in the final order.
Mutual of Omaha
Bank Account
George Jr. also claims that the county court erred in failing
to include the Mutual of Omaha Bank account as an asset of
the estate. Kevin and George Jr. stipulated that on March 20,
2010, George Sr. executed a contract of deposit to create an
account with Mutual of Omaha Bank. Both parties agree, as do
we, that the contract of deposit conformed with § 30-2719(a).
Because the contract of deposit is statutorily sufficient under
§ 30-2719(a), we need not determine the intent of the deposi-
tor, George Sr. See Eggleston v. Kovacich, 274 Neb. 579, 742
N.W.2d 471 (2007) (if contract of deposit is in form provided
in § 30-2719(a), then court looks only to contract of deposit
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE ESTATE OF BALVIN
Cite as 295 Neb. 346
and treats account as type of account designated in contract
of deposit).
Although George Jr. agrees that the contract of deposit is
statutorily sufficient, he nevertheless argues that George Sr.
did not choose a multiple-party account with right of survi-
vorship, because he did not initial the contract of deposit as
set forth in § 30-2719(a). Thus, he concludes, the contract of
deposit was not a multiple-party account with right of sur-
vivorship, and the proceeds therefrom should be part of the
estate inventory.
[6-8] In essence, George Jr. alleges deficiencies in the
execution of a valid contract. In the instant case, any such
deficiencies, if present, would stem from ambiguity of the
contract itself. A contract written in clear and unambiguous
language is not subject to interpretation or construction and
must be enforced according to its terms. Spanish Oaks v.
Hy-Vee, 265 Neb. 133, 655 N.W.2d 390 (2003). However, a
contract is ambiguous when a word, phrase, or provision in
the contract has, or is susceptible of, at least two reasonable
but conflicting interpretations or meanings. Jensen v. Board
of Regents, 268 Neb. 512, 684 N.W.2d 537 (2004). Whether
a contract is ambiguous is a question of law. See General
Drivers & Helpers Union v. County of Douglas, 291 Neb. 173,
864 N.W.2d 661 (2015).
The relevant portion of the contract of deposit reads as
follows:
Ownership of Account
The specified ownership will remain the same for all accounts.
(For consumer accounts, select and initial.)
□ Single-Party Account ____ □ Multiple-Party Account ____
___________________________________________________
□ Corporation - For Profit □ Corporation - Nonprofit
□ Partnership □ Sole Proprietorship
□ Limited Liability Company
□ Trust-Separate Agreement Dated: ______________________
□ _________________________________________________
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE ESTATE OF BALVIN
Cite as 295 Neb. 346
Beneficiary Designation
(Check appropriate ownership above - select and initial below.)
□ Single-Party Account ____
□ Single-Party Account with Pay-On-Death (POD) ____
□ Multiple-Party Account with Right of Survivorship ____
□ Multiple-Party Account with Right of Survivorship
and POD ____
□ Multiple-Party Account without Right of Survivorship ____
Here, the contract of deposit listed both George Sr. and
Kevin as joint owners. In addition, George Sr. signed the bot-
tom of the form, which bears a marked box next to “Multiple-
Party Account” under the ownership section and a marked box
next to “Multiple-Party Account with Right of Survivorship”
under the beneficiary designation section to assign rights upon
the death of an account holder. Even though neither party to the
contract of deposit initialed the selected options, the document
is not subject to at least two reasonable but conflicting inter-
pretations or meanings. We find the contract of deposit clearly
reflects that George Sr. desired a “Multiple-Party Account with
Right of Survivorship” and, as a result, is not ambiguous as a
matter of law.
[9] As a multiple-party account with right of survivorship,
then, the Mutual of Omaha Bank account is subject to the
“elementary principle of law that property owned in joint ten-
ancy passes to the surviving joint tenant by virtue of the nature
of the tenancy and not under the law of descent and distribu-
tion or by virtue of the provisions of the will of the first joint
tenant to die.” In re Estate of Walters, 212 Neb. 645, 647, 324
N.W.2d 889, 890 (1982). Accordingly, the Mutual of Omaha
Bank account was a nonprobate asset, and the county court did
not err in excluding it from the probate estate.
Purchase of Volvo Automobile
Next, George Jr. claims that the county court erred in fail-
ing to include in the intestate estate the $27,000 that Kevin
“converted” from George Sr.’s checking account to purchase
the Volvo automobile. On March 20, 2010, George Sr. opened
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IN RE ESTATE OF BALVIN
Cite as 295 Neb. 346
an account at Mutual of Omaha Bank with an initial deposit
of $69,446.97. All of these funds belonged to George Sr.
The account’s agreement form listed Kevin as an authorized
signer and joint owner. On March 24, Kevin purchased a
Volvo automobile titled to him and Sarah. Kevin paid for
it with a $27,000 check drawn from the Mutual of Omaha
Bank account.
The contributions to a joint account are controlled by Neb.
Rev. Stat. § 30-2722 (Reissue 2016), which provides:
(a) In this section, net contribution of a party means the
sum of all deposits to an account made by or for the party,
less all payments from the account made to or for the
party which have not been paid to or applied to the use
of another party and a proportionate share of any charges
deducted from the account, plus a proportionate share of
any interest or dividends earned, whether or not included
in the current balance. . . .
(b) During the lifetime of all parties, an account belongs
to the parties in proportion to the net contribution of each
to the sums on deposit, unless there is clear and convinc-
ing evidence of a different intent.
The parties do not dispute that Kevin withdrew funds that
he did not contribute to the joint account, and pursuant to
§ 30-2722, George Sr. may have had a claim against Kevin,
assuming he had not consented to the withdrawal. Upon
George Sr.’s death, the personal representative became the
authorized party with standing to bring an action to recover
assets of the estate. See Neb. Rev. Stat. §§ 30-2464, 30-2470,
and 30-2472 (Reissue 2016). However, Kevin and George Jr.
were appointed copersonal representatives, and one copersonal
representative can bring a claim for conversion only with
the concurrence of the other. See Neb. Rev. Stat. § 30-2478
(Reissue 2016) (providing that “[i]f two or more persons are
appointed corepresentatives and unless the will provides oth-
erwise, the concurrence of all is required on all acts connected
with the administration and distribution of the estate”). Without
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295 Nebraska R eports
IN RE ESTATE OF BALVIN
Cite as 295 Neb. 346
Kevin’s concurrence, George Jr. could not solely bring a claim
of conversion. Moreover, the record does not reflect that Kevin
agreed to bring a claim against himself or that George Jr. ever
sought the removal of Kevin as copersonal representative due
to a conflict of interest pursuant to Neb. Rev. Stat. § 30-2454
(Reissue 2016).
In the absence of a conversion claim, properly lodged, the
county court did not commit error in failing to include in the
intestate estate the $27,000 that Kevin withdrew from the joint
account to purchase the Volvo automobile.
Offset of Insurance Payments
George Jr. further contends that the county court erred in
allowing an offset of voluntary payments against his intestate
share of estate assets. On July 14, 2011, life insurance policy
proceeds of $30,027.12 were issued to Kevin, who the parties
stipulated was the designated beneficiary and who deposited
the proceeds into his personal checking account. On July 29,
George Jr. received a check from Kevin and Kevin’s wife,
Sarah, in the amount of $15,013.56, which represented 50 per-
cent of the life insurance proceeds. Also, the parties stipulated
that as the designated beneficiary of “Metal Lathers Union
#46,” Kevin received a burial benefit check in the amount of
$6,000. Again, Kevin sent George Jr. a check for $3,000, rep-
resenting 50 percent of the death benefit.
[10] George Jr. argues that insurance proceeds with a des-
ignated beneficiary are nonprobate assets and cannot be used
to set off his share of the intestate estate. We agree. Section
30-2715(a) provides, in part, “A provision for a nonprobate
transfer on death in an insurance policy . . . or other written
instrument of a similar nature is nontestamentary.” See, also,
In re Trust of Rosenberg, 273 Neb. 59, 68, 727 N.W.2d 430,
440 (2007) (citing § 30-2715 and holding that “[g]enerally, life
insurance benefits are a type of nonprobate transfer on death
which is nontestamentary”). Accordingly, the life insurance
benefits in this instance were nonprobate and the county court
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IN RE ESTATE OF BALVIN
Cite as 295 Neb. 346
erred by offsetting any amounts in the probate proceedings due
to the payment of life insurance.
Heir of Decedent
Lastly, George Jr. assigns that the county court erred in find-
ing Sarah, the daughter-in-law of George Sr., to be an heir at
law. We agree.
[11] Neb. Rev. Stat. § 30-2209 (Reissue 2016), provides:
(18) Heirs mean those persons, including the surviving
spouse, who are entitled under the statutes of intestate
succession to the property of a decedent.
....
(23) Issue of a person means all his or her lineal
descendants of all generations, with the relationship of
parent and child at each generation being determined
by the definitions of child and parent contained in the
Nebraska Probate Code.
Further, Neb. Rev. Stat. § 30-2303 (Reissue 2016) states:
The part of the intestate estate not passing to the sur-
viving spouse . . . , or the entire intestate estate if there is
no surviving spouse, passes as follows:
(1) to the issue of the decedent; if they are all of the
same degree of kinship to the decedent they take equally,
but if of unequal degree, then those of more remote
degree take by representation.
Under the foregoing authority, Sarah, as a daughter-in-law
rather than the issue of George Sr., is not an heir at law, and
the county court erred in so finding.
CONCLUSION
We affirm in part and in part reverse the formal order for
complete settlement and remand the cause to the county court
for further proceedings consistent with this opinion.
A ffirmed in part, and in part reversed and
remanded for further proceedings.