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Richardson v. Thieme

Court of Appeals of Indiana

April 28, 2017

Nancy Richardson, Appellant,
v.
Susan Thieme, Appellee.

         Appeal from the Blackford Circuit Court Trial Court Cause No. 05C01-1407-EU-27, The Honorable Jeffrey Eggers, Special Judge

          Attorney for Appellant Joseph R. McKinney

          Attorney for Appellee Robert G. Forbes Forcum & Forbes, LLP

          Barnes, Judge.

         Case Summary

          [¶1] Nancy Richardson appeals the trial court's order rejecting her objections to the closing of the Unsupervised Estate of Clayton Ford by the Estate's personal representative, Susan Thieme. We affirm.

          Issues

         The issues before us are:

I. whether the trial court applied an incorrect standard of proof in accepting Thieme's closing of the Estate and final accounting;
II. whether the trial court correctly found no improprieties in the manner in which the Estate's personal property was distributed; and
III. whether Thieme breached her fiduciary duty to the Estate.

         Facts

          [¶2] Ford died on June 30, 2014. Ford's will directed that his estate be administered without supervision, by either his wife or by Thieme, one of his daughters. It further stated:

Either of said representatives shall act without bond and without the intervention of any court to the extent that such bond and court intervention of any process may be waived by me under the laws of the State of lndiana. Each shall have full power to sell, convey, and encumber, without notice or confirmation, any assets of my estate, real, personal or mixed, at such prices and terms as to either may seem just.

Appellee's App. Vol. II p. 7. Because Ford's wife pre-deceased him, Thieme was appointed personal representative. On November 7, 2014, Richardson, another of Ford's daughters, filed a petition for supervised administration of the Estate. The petition claimed Thieme failed to respond to Richardson's request for an inventory of Estate assets and had sold or otherwise disposed of assets without any accounting. Thieme objected to Richardson's request; the trial court allowed continued unsupervised administration of the Estate unless any party requested a hearing on the matter, and Richardson never did so.

         [¶3] On November 23, 2015, Thieme filed her closing statement and final accounting for the Estate. The accounting stated there were a total of $94, 663.31 in Estate assets, leaving $89, 973.31 in distributable assets after deducting $2, 000.00 in fees for Thieme and $2, 690.00 in attorney fees. Each of Ford's five children received one-sixth of that amount, or $14, 995.55, in cash and property-in-kind, with the remaining one-sixth divided between his three grandchildren.

         [¶4] On February 19, 2016, Richardson filed an objection to Thieme's closing statement and final accounting. The objection listed several instances of alleged improprieties regarding deposits to and withdrawals from the Estate bank account opened after Ford's death, which Richardson claimed were unsupported by adequate documentation. The objection also claimed that it was improper to pay Thieme $2, 000 in fees based on her blanket statement that she had worked over 160 hours on Estate matters. The objection also alleged:

It is extremely difficult to determine and reconcile the receipts and disbursements without a written Estate Account setting forth simple schedules of Receipts (inventoried assets and net value of property, receipts from sale of property, receipts from property not appraised, cancelled checks deposits to the Estate, etc. and a "Total" column regarding receipts). Similarly, there is no schedule of Disbursements. The PR did not provide the "totals" for either the Receipts or Disbursements. Totals for Receipts and Disbursements and Assets on hand (if any) must be the same but this cannot be determined without a proper accounting and closing statement. The problem is that (assuming all of the unidentified amounts on the deposit slips are for the sale of items) the total adds up to far less (over $2500) than the "cash" that was deposited to the Estate account. Further, there were 92 items that were not appraised by Ellenberger that are unaccounted for in the final accounting statement. Were those items sold for cash and the money (how much?) received and deposited? If not sold, what happened to the items? Were they distributed to the heirs? The insufficiency of the closing statement and lack of supporting documentation raises these questions and falls short of a full and understandable closing statement.

Appellant's App. Vol. II pp. 11-12.

          [¶5] The trial court held a hearing on Richardson's objections on May 20, 2016. Richardson testified that she had difficulty communicating with Thieme regarding Estate matters throughout its administration and received "push back" when she attempted to get information. Tr. p. 8. Richardson also stated that other family members frequently met and distributed items of Ford's personal property between themselves for months before she had an opportunity to review and request items and that Thieme allowed the heirs to charge items against the Estate rather than paying for them. During Richardson's testimony there was discussion of an appraisal of personal property that amounted to approximately $5, 200.00, but which allegedly failed to include about ninety items. Richardson ...


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