Transferring a Decedent’s Real Property Interest in Nebraska

Probate is the legal process of distributing a person’s assets after death according to the provisions of the decedent’s will and the Nebraska Probate Code. Any part of the decedent’s estate that does not transfer by will is distributed pursuant to Nebraska’s laws of intestate succession. Not all property is subject to probate; assets held in a survivorship interest or a trust, property with a beneficiary designation, and small estates meeting certain criteria may avoid probate. Note: appropriate documentation, such as a death certificate or relevant affidavit, must still be recorded as proof of the transfer.

When the decedent has died, his or her will must be proved in the County Court of the Nebraska county wherein he or she resided at the time of death. If a decedent died intestate (without a will), an interested person (Neb. Rev. Stat. § 30-2209(21)) may petition for probate and grant of letters. Petition for informal or formal probate depends on the specific situation, and will determine how large a role the court plays in decisions made concerning the estate.

Neb. Rev. Stat. § 30-2412 establishes the priority among persons seeking appointment as personal representative. In some states, the personal representative may be referred to as an executor (when named by the decedent’s will) or an administrator (when selected by the court), though Nebraska prefers the general term “personal representative” (“PR”). Administration of the estate officially commences with the court-ordered appointment of the PR (§ 30-2403). The court issues Letters as proof of the appointment.

By operation of law, a decedent’s property devolves unto devisees under a will, or heirs when there is no testamentary disposition, “subject to homestead allowance, exempt property and family allowance, to rights of creditors, elective share of the surviving spouse, and to administration” (30-2401). As proof of the transfer, however, the will must be probated or an affidavit under § 30-24, 129, if applicable, must be recorded (§ 30-2402). Successors in interest may file the affidavit to transfer real property without probate when the value of the decedent’s real property interests is less than $50,000.00.

The personal representative has the same authority over the estate’s assets as an absolute owner, unless otherwise restricted by the decedent’s will or by court order under formal probate (§ 30-2472). To pay the estate’s debts and administrative expenses, to fulfill a court order or provision of the decedent’s will, or to facilitate distribution of the estate, the PR may need to sell real property and execute a personal representative’s deed.

The PR deed is named for the office of the grantor and transfer’s title to the purchaser with a covenant that the PR has legal power and lawful authority to convey. PR deeds typically recite the decedent’s name and the case number assigned to the estate by the court, and expressly state that the grantor is executing the deed in a representative capacity. They must meet all requirements of form and content for documents pertaining to interest in real property in the State of Nebraska. The deed is signed by the PR and recorded in the appropriate county’s Register of Deeds office.

After valid debts, claims on the estate by creditors, and administrative expenses have been paid, the PR may distribute the decedent’s property to devisees under a will and/or the decedent’s rightful heirs. As evidence of the distributee’s succession to the decedent’s interest, the PR records a deed of distribution. The deed of distribution is nearly identical to a standard PR deed, except that no consideration is made by the grantee for the conveyance.

All deeds in Nebraska require Form 521 (Real Estate Transfer Form) and any applicable documentary stamp tax paid at time of recording (or a certificate of exemption).