In re Estate of Helms

• Decision Date: 10 July 2014
• Docket Number: No. A14A0627.,A14A0627.
• Citation: 761 S.E.2d 579,328 Ga.App. 179
• Parties: In re ESTATE OF Hazel Williams HELMS.
• Court: Georgia Court of Appeals

328 Ga.App. 179
761 S.E.2d 579

In re ESTATE OF Hazel Williams HELMS.

No. A14A0627.

Court of Appeals of Georgia.

July 10, 2014.

[761 S.E.2d 580]

John R. Grimes, Atlanta, for Appellant.

Linda Gail Carpenter, Jackson L. Culbreth, Atlanta, Ann J. Herrera, Decatur, for Appellee.

RAY, Judge.

Jan Helms Rowell, beneficiary under the will of her late mother, Hazel Williams Helms (“the decedent”), appeals the probate court's order settling the decedent's estate. She also appeals from the probate court's denial of her motion to make or amend findings of fact and conclusions of law and her motion for new trial. For the reasons that follow, we vacate in part, affirm in part, and remand the case with direction.

The relevant facts are as follows. The decedent died testate on November 4, 2007. A copy of the will, dated May 25, 1999, is not in the appellate record. However, the record shows that the four beneficiaries under the will are: Jan Helms Rowell, Charles Helms, III (“Helms”), Bryan Helms, and Hollis Helms Erikson. Under the terms of the will, Rowell was to receive 50 percent of the residue, Charles Helms, III was to receive 25 percent of the residue and Bryan Helms and Hollis Helms Erikson were each to receive 12 1/2 percent of the residue. During the period between November 2007 through July 2011, the estate remained unrepresented while Rowell and Helms litigated the issue of who should serve as personal representative. In July 2011, both Rowell and Helms renounced their rights to serve as executor, and the probate court appointed Ann J. Herrera to serve as administrator with will annexed (the “Administrator”).

[761 S.E.2d 581]

The Administrator filed a petition in the probate court for Final Settlement of Accounts and Approval of Distribution Plan (the “Plan”) pursuant to OCGA § 53–7–62.¹ In addition to a distribution of the estate's assets, a part of the Plan set forth in the petition consisted of a resolution of disputes and claims against Rowell. Helms, Bryan Helms and Hollis Helms Erikson each consented to the Administrator's petition, but Rowell did not. Rowell responded to the Administrator's petition with an alternative proposal.

A hearing was held before the probate court. See OCGA § 53–7–63 (the probate court is authorized to hear evidence on disputed issues and “make a final settlement between the personal representative and the heirs or beneficiaries”). In its order adopting the Administrator's proposed Plan, the probate court noted that Rowell's 50 percent share of the estate's remaining assets (after administrative expenses) totaled $364,934.46. However, the Plan also reduced the assets to be received by Rowell “based on [her] previous actions regarding estate assets and the cost to the estate.” By adopting the Plan, the probate court authorized the Administrator to distribute to Rowell, inter alia, the estate's 50 percent interest in a duplex home, which interest the Administrator valued at $185,755, all furniture located in the duplex valued at $15,995, title to two vehicles valued at $1,500 and stock valued at $100,000. The amount of distribution to Rowell corresponded to an approximately $61,684 reduction in her in 50 percent testamentary share.

1. Rowell challenges the probate court's factual findings concerning the amount by which her 50 percent testamentary share was reduced. She claims that the probate court erred by adopting the Plan without evidence to support the $61,684 reduction in her testamentary share. We agree.

On appellate review, we will not set aside the probate court's factual findings unless they are clearly erroneous, deferring to the court's opportunity to judge the credibility of the witnesses. The clearly erroneous test is the same as the “any evidence” rule. Thus, where the probate court's findings of fact are supported by any evidence, they will be upheld on appeal.

(Footnotes omitted.) In re Estate of Long, 307 Ga.App. 896, 898(2), 706 S.E.2d 704 (2011).

Consistent with the testimony adduced at the hearing, the probate court found that during the four years between her mother's death and the probate court's appointment of the Administrator, “Rowell acted as a fiduciary without court appointment [and] collected assets belonging to [d]ecedent ... prior to [d]ecedent's death.” More specifically, the probate court found that Rowell “received approximately $125,000.00 from the sale of an easement belonging to [d]ecedent; collected $14,500.00 in rental receipts from the [d]uplex; and received dividends from the Coca–Cola Stock” and placed these funds in accounts over which she maintained exclusive possession and control. It further found that Rowell “had used estate funds to pay expenses related to non-probate assets as well as her own personal and family expenses .... [and] did not pay taxes, leaving the estate responsible for payment of overdue taxes plus penalties and interest.” The Administrator testified that, following the Administrator's appointment, Rowell transferred only $1,540 to the estate.

The Administrator further testified that Helms had provided her with documentation, with “backup and the checks,” of $26,400 estate funds that were spent by Rowell on non-estate or partially non-estate expenses.²

[761 S.E.2d 582]

The Adminsitrator elected, however, not to pursue a forensic accounting to determine what Rowell had done with the estate funds. Apart from the $26,400, there was a lack of testimony as to Rowell's use of estate funds or as to the cost to estate of Rowell's acts or omissions. Nor did the probate court make any finding, apart from the expenditure of the $26,400, as to the cost to the estate of Rowell's actions.

At the commencement of the hearing, Rowell's counsel argued that at issue was $172,000 in funds which had been deposited into a joint checking account. Counsel argued that Rowell had paid estate expenses out of that account, and that, acting as an executor “de facto,” Rowell had acted appropriately with respect to the funds. Counsel then proposed that Rowell pay for an accounting and represented that “we welcome an audit.” However, Rowell did not present any evidence at the hearing as to how she spent the estate funds that had been in her possession.

In her petition, the Administrator claimed that the Plan was fair and reasonable and in accordance with the intent and provisions of the decedent's will.³ See In re Estate of Nesbit, 299 Ga.App. 496, 499–500(1), 682 S.E.2d 641 (2009) (probate court was authorized to make a final settlement between personal representative and the...