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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. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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