LB1195 LB1195
2024 2024
LEGISLATIVE BILL 1195
Approved by the Governor April 15, 2024
Introduced by Conrad, 46.
A BILL FOR AN ACT relating to law; to amend sections 25-3003, 25-3004, 30-2446,
30-2603, 30-3816, 30-3828, 30-4002, 40-101, 40-103, 43-2707, 71-5905, and
84-168, Reissue Revised Statutes of Nebraska, and sections 30-24,129 and
30-3402, Revised Statutes Cumulative Supplement, 2022; to change provisions relating to grants for service providers by the Commission on
Public Advocacy; to change provisions of the Nebraska Probate Code relating to bonds, small estate affidavits, and certain payments and transfers to minors; to redefine adult for purposes of health care powers of attorney; to change provisions of the Nebraska Uniform Trust Code relating to registration of trusts and the requirements to be a settlor;
to change the definition of principal under the Nebraska Uniform Power of
Attorney Act; to change and eliminate provisions relating to homestead exemptions for judgment liens and executions; to change provisions relating to irrevocable transfers under the Nebraska Uniform Transfers to
Minors Act; to provide restrictions and requirements relating to third-
party guarantees of payment under the Assisted-Living Facility Act; to authorize acceptance of cession or retrocession of federal jurisdiction for juvenile matters; to change provisions and provide duties relating to
such acceptance and to authorize certain agreements; to harmonize provisions; to repeal the original sections; and to outright repeal section 40-102, Reissue Revised Statutes of Nebraska.
Be it enacted by the people of the State of Nebraska,
Section 1. Section 25-3003, Reissue Revised Statutes of Nebraska, is amended to read:
25-3003 (1) The Commission on Public Advocacy shall establish eligibility criteria and guidelines to determine on an annual basis (a) the service areas,
(b) the legal services to be provided and the priorities for providing the services, which shall be determined in accordance with subsection (1) of section 25-3004, and (c) the service provider or providers for each service area. The commission shall annually certify one or more service providers for each service area. A single service provider may be certified for more than one service area. Such certification entitles the service provider to a distribution of funds as defined and determined by section 25-3004.
(2) The commission shall accept applications for certification on an annual basis from entities interested in providing free civil legal services to
eligible low-income persons. In the application, each applicant shall certify to the commission that the applicant intends to provide free civil legal services to eligible low-income persons as determined by the commission.
Sec. 2. Section 25-3004, Reissue Revised Statutes of Nebraska, is amended to read:
25-3004 (1) Each service provider certified by the Commission on Public Advocacy shall be eligible to receive funds from the Legal Aid and Services Fund to provide free civil legal services to eligible low-income persons in the service area for which it is certified. The funds granted to each service provider from the Legal Aid and Services Fund shall be determined by the commission. Grants shall be awarded to legal service providers that provide direct legal representation of eligible low-income persons.
(2) Each service provider is authorized to use funds received from the Legal Aid and Services Fund to provide legal services in civil matters to any eligible low-income person.
(3) A service provider which has received funds from the Legal Aid and Services Fund shall be audited annually. For any service provider receiving funds pursuant to subsection (1) of this section, such audit shall include confirmation of the direct legal representation described in subsection (1) of this section, as shown through an entry of appearance as attorney in a court action, an execution of a retainer agreement, or any similar confirmation of
actual legal representation.
Sec. 3. Section 30-2446, Reissue Revised Statutes of Nebraska, is amended to read:
30-2446 (1) A bond shall be required of a personal representative unless:
(a) The will expressly waives the bond, expressly requests that there be no bond, or waives the requirement of a surety thereon other than the personal representative; (b) all of the heirs, if no will has been probated, or all of
the devisees under a will which does not provide for relieving the personal representative of bond in accordance with subdivision (1)(a) of this section,
file with the court a written waiver of the bond requirement; (c) a duly appointed guardian or conservator waives bond may waive on behalf of a his ward or protected person unless the guardian or conservator is the personal representative; (d) a person eighteen years of age or older waives bond on the person's own behalf; (e) (c) the personal representative is a national banking association, a holder of a banking permit under the laws of this state, or a trust company holding a certificate to engage in trust business from the
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Department of Banking and Finance; or (f) (d) the petition for formal or
informal appointment alleges that the probable value of the entire estate will permit summary procedures under section 30-24,127.
(2) In any case when bond is not required under subsection (1) of this section, the court may, upon petition of any interested person and upon reasonable proof that the interest of the petitioning person is in danger of
being lost because of the administration of the estate, require a bond in such amount as the court may direct in order to protect the interest of the petitioner or of the petitioner and others. An heir or devisee who initially waived bond may be a petitioner under this subsection.
(3) If a bond is not initially required because the petition for appointment alleges that the probable value of the entire estate will permit summary procedures under section 30-24,127, and it later appears from the inventory and appraisal that the value of the estate will not permit use of
such procedures, then the personal representative shall promptly file a bond unless one is not required for some other reason under subsection (1) of this section.
Sec. 4. Section 30-24,129, Revised Statutes Cumulative Supplement, 2022,
is amended to read:
30-24,129 (a) Thirty days after the death of a decedent, any person claiming as successor to the decedent's interest in real property in this state may file or cause to be filed on his or her behalf, with the register of deeds office of a county in which the real property of the decedent that is the subject of the affidavit is located, an affidavit describing the real property owned by the decedent and the interest of the decedent in the property. The affidavit shall be signed by all persons claiming as successors or by parties legally acting on their behalf and shall be prima facie evidence of the facts stated in the affidavit. The affidavit shall state:
(1) the value of the decedent's interest in all real property in the decedent's estate located in this state does not exceed one hundred fifty thousand dollars. The value of the decedent's interest shall be determined from the value of the property shown on the assessment rolls for the year in which the decedent died less real estate taxes and interest thereon if any is due at
the time of death;
(2) thirty days have elapsed since the death of the decedent as shown in a certified or authenticated copy of the decedent's death certificate attached to
the affidavit;
(3) no application or petition for the appointment of a personal representative is pending or has been granted in the State of Nebraska;
(4) the claiming successor is entitled to the real property either by
reason of the homestead allowance, exempt property allowance, or family allowance, by intestate succession, or by devise under the will of the decedent. If claiming by devise under the will of the decedent, a copy of such will shall be attached to the affidavit;
(5) the claiming successor has made an investigation and has been unable to determine any subsequent will;
(6) no other person has a right to the interest of the decedent in the described property;
(7) the claiming successor's relationship to the decedent and the value of
the entire estate of the decedent subject to probate; and
(8) the person or persons claiming as successors under the affidavit swear or affirm that all statements in the affidavit are true and material and further acknowledge that any false statement may subject the person or persons to penalties relating to perjury under section 28-915.
(b) The recorded affidavit and certified or authenticated copy of the decedent's death certificate shall also be recorded by the claiming successor in any other county in this state in which the real property of the decedent that is the subject of the affidavit is located.
Sec. 5. Section 30-2603, Reissue Revised Statutes of Nebraska, is amended to read:
30-2603 Any person under a duty to pay or deliver money or personal property to a minor may perform this duty, in amounts not exceeding forty twenty-five thousand dollars per annum, by paying or delivering the money or
property to:
(1) The minor, if he or she has attained the age of eighteen years or is married;
(2) Any person having the care and custody of the minor with whom the minor resides;
(3) A guardian of the minor; or
(4) A financial institution incident to a deposit in a federally insured savings account in the sole name of the minor and giving notice of the deposit to the minor.
This section does not apply if the person making payment or delivery has actual knowledge that a conservator has been appointed or proceedings for appointment of a conservator of the estate of the minor are pending. The persons, other than the minor or any financial institution under subdivision
(4) of this section, receiving money or property for a minor are obligated to
apply the money to the support and education of the minor but may not pay themselves except by way of reimbursement for out-of-pocket expenses for goods and services necessary for the minor's support. Any excess sums shall be
preserved for future support of the minor, and any balance not so used and any property received for the minor must be turned over to the minor when he or she attains majority. Persons who pay or deliver in accordance with provisions of
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this section are not responsible for the proper application thereof.
Sec. 6. Section 30-3402, Revised Statutes Cumulative Supplement, 2022, is amended to read:
30-3402 For purposes of sections 30-3401 to 30-3432:
(1) Adult shall mean any person who is eighteen nineteen years of age or
older or who is not a minor or has been married;
(2) Attending physician shall mean the physician, selected by or assigned to a principal, who has primary responsibility for the care and treatment of
such principal;
(3) Attorney in fact shall mean an adult properly designated and authorized under sections 30-3401 to 30-3432 to make health care decisions for
a principal pursuant to a power of attorney for health care and shall include a successor attorney in fact;
(4) Health care shall mean any treatment, procedure, or intervention to
diagnose, cure, care for, or treat the effects of disease, injury, and degenerative conditions. Health care shall include mental health care;
(5) Health care decision shall include consent, refusal of consent, or withdrawal of consent to health care. Health care decision shall not include
(a) the withdrawal or withholding of routine care necessary to maintain patient comfort, (b) the withdrawal or withholding of the usual and typical provision of nutrition and hydration, or (c) the withdrawal or withholding of life-
sustaining procedures or of artificially administered nutrition or hydration,
except as provided by sections 30-3401 to 30-3432;
(6) Health care provider shall mean an individual or facility licensed,
certified, or otherwise authorized or permitted by law to administer health care in the ordinary course of business or professional practice and shall include all facilities defined in the Health Care Facility Licensure Act;
(7) Except as otherwise provided in section 30-4404 for an advance mental health care directive, incapable shall mean the inability to understand and appreciate the nature and consequences of health care decisions, including the benefits of, risks of, and alternatives to any proposed health care or the inability to communicate in any manner an informed health care decision;
(8) Life-sustaining procedure shall mean any medical procedure, treatment,
or intervention that (a) uses mechanical or other artificial means to sustain,
restore, or supplant a spontaneous vital function and (b) when applied to a person suffering from a terminal condition or who is in a persistent vegetative state, serves only to prolong the dying process. Life-sustaining procedure shall not include routine care necessary to maintain patient comfort or the usual and typical provision of nutrition and hydration;
(9) Mental health care shall include, but not be limited to, mental health care and treatment expressly provided for in the Advance Mental Health Care Directives Act;
(10) Persistent vegetative state shall mean a medical condition that, to a reasonable degree of medical certainty as determined in accordance with currently accepted medical standards, is characterized by a total and irreversible loss of consciousness and capacity for cognitive interaction with the environment and no reasonable hope of improvement;
(11) Power of attorney for health care shall mean a power of attorney executed in accordance with sections 30-3401 to 30-3432 which authorizes a designated attorney in fact to make health care decisions for the principal when the principal is incapable;
(12) Principal shall mean an adult who, when competent, confers upon another adult a power of attorney for health care;
(13) Reasonably available shall mean that a person can be contacted with reasonable efforts by an attending physician or another person acting on behalf of the attending physician;
(14) Terminal condition shall mean an incurable and irreversible medical condition caused by injury, disease, or physical illness which, to a reasonable degree of medical certainty, will result in death regardless of the continued application of medical treatment including life-sustaining procedures; and
(15) Usual and typical provision of nutrition and hydration shall mean delivery of food and fluids orally, including by cup, eating utensil, bottle,
or drinking straw.
Sec. 7. Section 30-3816, Reissue Revised Statutes of Nebraska, is amended to read:
30-3816 (1) The trustee of a trust having its principal place of
administration in this state may register the trust in the county court of this state at the principal place of administration. Unless otherwise designated in
the trust instrument, the principal place of administration of a trust is the trustee's usual place of business where the records pertaining to the trust are kept, or at the trustee's residence if he or she has no such place of business.
(2) In the case of cotrustees, the principal place of administration, if not otherwise designated in the trust instrument, is (a) (1) the usual place of
business of the corporate trustee if there is but one corporate cotrustee, (b)
or (2) the usual place of business or residence of the individual trustee who is a professional fiduciary if there is but one such person and no corporate cotrustee, and (c) otherwise (3) the usual place of business or residence of
any of the cotrustees as agreed upon by such cotrustees them.
(3) If there is more than one trustee, any trustee may register the trust in the county in which the principal place of administration is located under subsection (2). If the principal place of administration is determined under subdivision (2)(c) and the cotrustees cannot agree on the principal place of
administration, a proceeding may be filed under section 30-3812 by any
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interested person to determine the principal place of administration.
(4) The right to register under sections 30-3816 to 30-3820 does not apply to the trustee of a trust if registration would be inconsistent with the retained jurisdiction of a foreign court from which the trustee cannot obtain release.
(5) No one other than a trustee shall register a trust. Registration of a trust is not required in order for a court to exercise jurisdiction over a trust, a trustee, or the beneficiaries.
Sec. 8. Section 30-3828, Reissue Revised Statutes of Nebraska, is amended to read:
30-3828 (UTC 402) (a) A trust is created only if:
(1) the settlor has capacity to create a trust and meets one of the following requirements: ;
(A) the settlor is eighteen years of age or older; or
(B) the settlor is not a minor;
(2) the settlor indicates an intention to create the trust;
(3) the trust has a definite beneficiary or is:
(A) a charitable trust;
(B) a trust for the care of an animal, as provided in section 30-3834; or
(C) a trust for a noncharitable purpose, as provided in section 30-3835;
(4) the trustee has duties to perform; and
(5) the same person is not the sole trustee and sole beneficiary.
(b) A beneficiary is definite if the beneficiary can be ascertained now or
in the future, subject to any applicable rule against perpetuities.
(c) A power in a trustee to select a beneficiary from an indefinite class is valid. If the power is not exercised within a reasonable time, the power fails and the property subject to the power passes to the persons who would have taken the property had the power not been conferred.
Sec. 9. Section 30-4002, Reissue Revised Statutes of Nebraska, is amended to read:
30-4002 For purposes of the Nebraska Uniform Power of Attorney Act:
(1) Agent means a person granted authority to act for a principal under a power of attorney, whether denominated an agent, atto