WHEN TO USE THE FORM: Where a notice by publication is given, the party instituting the proceeding or the party's attorney shall within five (5) days after first publication of notice send by United States mail a copy of such published notice to each and every person appearing to have a direct legal interest in such proceeding whose name and post office address are known to him or her. Proof by affidavit of mailing of such notice shall be made by the party or the party's attorney and shall be filed with the county court within ten (10) days after mailing the notice. Neb. Rev. Stat. § 25-520.01. This proof of the giving of notice shall also be made on or before the hearing and filed in the proceeding. Nebraska Probate Code § 30-2220(c).
WHEN NOT TO USE THE FORM: It is not necessary to serve the notice upon any person, including a guardian ad litem, Conservator, or other fiduciary, who has waived notice by a writing signed by the fiduciary or the fiduciary's attorney and filed in the proceeding, or who has entered a voluntary appearance or has been personally served with summons or notice in such proceeding. Nebraska Probate Code § 30-2221 and Neb. Rev. Stat. § 25-520.01.
COMMENTS: If one or more heirs or devisees were not given notice of a previously formal testacy proceeding, the Court, upon proper petition for an order of complete settlement of the estate, and after notice to the omitted or unidentified persons may determine testacy as it affects the omitted persons and confirm or alter the previous order of testacy as it affects all interested parties as appropriate in the light of the new proofs. Nebraska Probate Code § 30-24,115(b). The previous Order concerning testacy is conclusive as to those given notice of the earlier proceeding. In effect, all who are given notice are bound by the Order arising therefrom even though less than all interested parties were notified. Both the party and the attorney have the obligation to make diligent investigation, and communication between the party and the party's attorney is required prior to the mailing and the preparation and filing of the affidavit.
