ILNews

Man didn't timely file petition to reopen estates

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  2. wow is this a bunch of bs! i know the facts!

  3. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  4. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  5. It's a capital offense...one for you Latin scholars..

ADVERTISEMENT