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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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