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Man didn't timely file petition to reopen estates

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A trial court correctly denied the request to reopen the estates of a man's deceased parents to correct an error because he failed to timely file his petition, the Indiana Court of Appeals affirmed.

In In the Matter of the Estates of Obed Kalwitz, Sr., and Helen Kalwitz; Eugene Kalwitz v. Sharon Grieger, No. 46A03-0911-CV-546, Eugene Kalwitz filed a petition to reopen the estates of his parents after discovering a mistake in the personal representatives' deed conveying land. Based on a settlement reached between Kalwitz and his sister, Sharon Grieger, both personal representatives of the estates, Kalwitz was solely to receive the land. But the parties didn't read the document before signing it and it conveyed the property to Kalwitz and Grieger.

They filed their verified final account and petition for authority to distribute the remaining assets and to close the estates in August 2007. Kalwitz discovered the error in December 2008 and filed his petition to reopen the estates alleging a scrivener's error in March 2009. The trial court entered summary judgment for Grieger on Kalwitz's petition, finding it was untimely as a matter of law.

The Court of Appeals had to decide which statute applies: Indiana Code Section 29-1-17-13, which has a one-year statute of limitations, or I.C. Section 39-1-17-14(a), which has a general six-year statute of limitations.

Section 13 requires the petitioner to allege misconduct, though not necessarily liability, on the part of a personal representative and must be brought within one year of the date of discharge. Section 14 applies only to assets unadministered in the original order for the final settlement of an estate.

Kalwitz sought to reopen the estates under Section 14 to correct a scrivener's error, but the real estate was distributed by the deed in the former administration of the estates. As such, he can't use Section 14 to collaterally attack final judgment on an already administered asset, wrote Judge Edward Najam.

"It is important to emphasize that Eugene was not without a remedy for his allegation. But his remedy, if any, was under Section 13," he wrote.

He had to have filed his petition within one year of the date of discharge, which he failed to do. The trial court was correct in granting summary judgment for Grieger.

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  1. Oh, the name calling was not name calling, it was merely social commentary making this point, which is on the minds of many, as an aside to the article's focus: https://answers.yahoo.com/question/index?qid=20100111082327AAmlmMa Or, if you prefer a local angle, I give you exhibit A in that analysis of viva la difference: http://fox59.com/2015/03/16/moed-appears-on-house-floor-says-hes-not-resigning/

  2. Too many attorneys take their position as a license to intimidate and threaten non attorneys in person and by mail. Did find it ironic that a reader moved to comment twice on this article could not complete a paragraph without resorting to insulting name calling (rethuglican) as a substitute for reasoned discussion. Some people will never get the point this action should have made.

  3. People have heard of Magna Carta, and not the Provisions of Oxford & Westminster. Not that anybody really cares. Today, it might be considered ethnic or racial bias to talk about the "Anglo Saxon common law." I don't even see the word English in the blurb above. Anyhow speaking of Edward I-- he was famously intolerant of diversity himself viz the Edict of Expulsion 1290. So all he did too like making parliament a permanent institution-- that all must be discredited. 100 years from now such commemorations will be in the dustbin of history.

  4. Oops, I meant discipline, not disciple. Interesting that those words share such a close relationship. We attorneys are to be disciples of the law, being disciplined to serve the law and its source, the constitutions. Do that, and the goals of Magna Carta are advanced. Do that not and Magna Carta is usurped. Do that not and you should be disciplined. Do that and you should be counted a good disciple. My experiences, once again, do not reveal a process that is adhering to the due process ideals of Magna Carta. Just the opposite, in fact. Braveheart's dying rebel (for a great cause) yell comes to mind.

  5. It is not a sign of the times that many Ind licensed attorneys (I am not) would fear writing what I wrote below, even if they had experiences to back it up. Let's take a minute to thank God for the brave Baron's who risked death by torture to tell the government that it was in the wrong. Today is a career ruination that whistleblowers risk. That is often brought on by denial of licenses or disciple for those who dare speak truth to power. Magna Carta says truth rules power, power too often claims that truth matters not, only Power. Fight such power for the good of our constitutional republics. If we lose them we have only bureaucratic tyranny to pass onto our children. Government attorneys, of all lawyers, should best realize this and work to see our patrimony preserved. I am now a government attorney (once again) in Kansas, and respecting the rule of law is my passion, first and foremost.

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