Do Not Let Your Appeal Be Dead Upon Arrival: Appeals Arising Under Titles 12 and 13

By Jeffrey P. Luszeck, Esq. and Alan D. Freer, Esq.

Like any other civil case, a will contest, a trust contest, or other litigation involving trusts and estates can be appealed from the probate court, which is defined as a court “sitting in probate or otherwise adjudicating matters pursuant to this title.” See NRS 132.116. However, certain matters under Titles 12 and 13 require an immediate appeal. The right to an immediate appeal is due, in large part, to the fact that the administration of estates may take months or years to complete. Consequently, after the entry of an order in a probate or trust proceeding, a practitioner should determine if the order is appealable or else the order will become final, and the right to pursue an appeal will be waived. See, e.g., Estate of Herrmann, 100 Nev. 1, 677 P.2d 594 (1984).

For example, and by no means of limitation, NRS 155.190(1) requires an appeal on certain interlocutory orders to be filed within 30 days after the entry of an order:

    (a) Granting or revoking letters testamentary or letters of administration.

    (b) Admitting a will to probate or revoking the probate thereof.

    (c) Setting aside an estate claimed not to exceed $100,000 in value.

    (d) Setting apart property as a homestead, or claimed to be exempt from execution.

    (e) Granting or modifying a family allowance.

    (f) Directing or authorizing the sale or conveyance or confirming the sale of property.

    (g) Settling an account of a personal representative or trustee.

    (h) Instructing or appointing a trustee.

    (i) Instructing or directing a personal representative.

    (j) Directing or allowing the payment of a debt, claim, devise or attorney’s fee.

    (k) Determining heirship or the persons to whom distribution must be made or trust property must pass.

    (l)  Distributing property.

    (m) Refusing to make any order mentioned in this section.

    (n) Making any decision wherein the amount in controversy equals or exceeds, exclusive of costs, $10,000.

    (o) Granting or denying a motion to enforce the liability of a surety filed pursuant to NRS 142.035.

In addition to the interlocutory orders identified in NRS 155.190(1), an appeal may be filed within 30 days after notice of entry of a final order in the following matters: (1) a will contest, see NRS 137.140; (2) determination of questions regarding advancements made by a decedent to heirs or devisees, see NRS 151.160; (3) questions concerning the internal affairs of a trust, see NRS 164.015(6); (4) instructions relating to the administration of the trust or for a construction of a trust instrument, see NRS 164.030(4); (5) conveyance, transfer, or delivery of trust property, see NRS 164.033(6); and (6) the approval of a final accounting, see NRS 165.1214(4)(b).

If a party timely files a motion for judgment under NRCP 50(b), a motion to amend or make additional findings of fact under NRCP 52(b), a motion to alter or amend the judgment under NRCP 59, or a motion for a new trial under NRCP 59, the time to appeal matters identified in NRS 155.190(1) runs for all parties from entry of an order disposing of the last such remaining motion, and the notice of appeal must be filed no later than 30 days after the date of service of written notice of entry of that order. See NRS 155.190(2). It is important to note, that before the Nevada Legislature amended NRS 155.190 in 2009 to include subsection (2), there were a series of cases wherein the Supreme Court of Nevada found that certain motions brought pursuant to NRCP 50, 52, and 59 did not toll the 30-day deadline to file an appeal. See, e.g., Matter of Estate of Miller, 111 Nev. 1, 888 P.2d 433 (1995) (motion to amend findings of fact or conclusions of law in district court order directing partial distribution of testate estate did not toll running of 30–day period for appealing interlocutory probate orders). Consequently, practitioners should not assume that a motion under NRCP 50, 52, or 59 will automatically toll the deadline to file an appeal under NRS 151.160, NRS 164.015(6), NRS 164.030(4), NRS 164.033(6), or NRS 165.1214(4)(b) as said statutes do not contain explicit language regarding this issue like NRS 155.190(2). Further, even though NRS 137.140 specifically provides that “[a]n appeal from a final order determining the contest of a will is governed by the Nevada Rules of Appellate Procedure” and “[a] party may make any motion after the determination that is provided by the Nevada Rules of Civil Procedure,” the issue still remains unclear.

Just like Titles 12 and 13 identify certain orders that are immediately appealable, there are certain orders that are not appealable, such as the appointment of a special administrator, see NRS 140.020(3)(b), or the appointment of a temporary trustee. See, e.g., Matter of Paul D. Burgauer Revocable Living Tr., 465 P.3d 222 (Nev. App. 2020) (“[W]e conclude NRS 155.190(1)(h) provides for an appeal from an order appointing a trustee, not an order appointing a temporary trustee.”).

As a final matter, if an order is not immediately appealable, a party should consider whether writ relief is appropriate pursuant to NRS 34. Neither an appeal nor a writ proceeding stay an order or an estate or trust proceeding unless otherwise ordered by the probate court or the Supreme Court of Nevada. See NRS 155.195.

About the authors:

Jeffrey P. Luszeck, Esq.

Jeffrey P. Luszeck, Esq. is a member of the Las Vegas law firm of Solomon, Dwiggins & Freer Ltd., where he focuses his practice primarily on trust and estate litigation, and small business litigation. Luszeck is a member of the State Bar of Nevada and serves as secretary of its Probate and Trust Section’s Legislative Committee and as a member of its Publications Committee.

Alan D. Freer, Esq.

Alan D. Freer, Esq. is a member of the Las Vegas law firm of Solomon Dwiggins & Freer, Ltd., where he focuses his practice primarily on trust and estate litigation, business litigation and guardianship litigation. Freer is a member of the State Bar of Nevada. He serves the bar as co-chair of the Probate and Trust Section’s Legislative Committee, a member of the Standing Committee on Ethics and Professional Responsibility and a mentor for new lawyers through the Transitioning Into Practice (TIP) program.

This article was originally published in the “Appellate Practice” issue of Communiqué, the official publication of the Clark County Bar Association, (September 2020). See https://clarkcountybar.org/about/member-benefits/communique-2020/communique-september-2020/.

© 2020 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.

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