Probate

The Indiana Court of Appeals recently handed down a memorandum decision (not for publication) which probate attorneys considering the necessity of probate litigation may find of interest since it explores the distinction between a small estate affidavit and the actual opening of a probate estate:

Angela Foster v. Estate of Darlene Shoemaker, Deceased, James Shoemaker, Personal representative (NFP)

04A05-0809-CV-562

In this matter, the decedent died intestate leaving an estate worth approximately $30,000, a husband and two children.  The estate assets consisted of a bank account and a vehicle. One of the children (a daughter) subsequently executed a small affidavit pursuant to Indiana Code § 29-1-8-1 and presented it to the bank where the decedent’s account was located.  The bank released $26,000 to the child who retained $6,500, distributed $13,000 to the husband and $6,500 to her sibling.  Shortly thereafter, the husband successfully petitioned to open an intestate estate and have himself appointed as the personal representative.  The daughter moved to dismiss the estate proceedings claiming that the proceedings were “precluded by another legal proceeding & laches.”  The daughter also filed a motion to compel the husband to deliver the vehicle to her so that it could be sold and the proceeds distributed.  The husband responded by filing a motion to compel the children to return to the estate the funds they had received from the bank account.

The trial court conducted a hearing during which the husband asserted his intention to claim from the estate his $25,000 spousal allowance pursuant to Indiana Code § 29-1-4-1.  Following the hearing, the trial court entered an order denying the motion to dismiss and compelling the children to return the funds they had received.  The daughter appealed and the Court of Appeals affirmed.

The Court of Appeals held that the small estate affidavit does not constitute an “action pending in another court of the state” pursuant to Indiana Trial Rule 12(B)(8). The Court also observed that Indiana Code § 29-1-8-2 provides, in relevant part, that “[a]ny person to whom payment, delivery, transfer or issuance is made is answerable and accountable therefor to any personal representative of the estate or to any other person having a superior right” and that the daughter presented no argument that this statutory provision would be inapplicable to her.

The full text of the opinion handed down on April 21, 2009 can be found here.