MEMORANDUM DECISION
                                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                        Feb 20 2019, 9:04 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                    CLERK
                                                                         Indiana Supreme Court
court except for the purpose of establishing                                Court of Appeals
                                                                              and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jonathan A. Watson                                       Peter M. Yarbro
Anderson, Agostino & Keller, PC                          Sara E. Tumbleson
South Bend, Indiana                                      Hains Law Firm, LLP
                                                         South Bend, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Karen Gohler,                                            February 20, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-ES-1562
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
James A. Rea,                                            The Honorable Jenny Pitts Manier,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         71D05-1709-ES-44



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-ES-1562 | February 20, 2019                Page 1 of 8
[1]   Karen Gohler appeals the trial court’s order denying her request to be appointed

      personal representative of the estate of her deceased mother and closing the

      estate. She argues that the trial court applied improper statutes and that she is

      entitled to relief. Finding no error, we affirm.


                                                         Facts
[2]   In 2014, Harriet1 Rea, the mother of Gohler and James Rea, sold a valuable

      home in Florida. At that time, Rea and his wife also lived in Florida and

      attended to Harriet’s care. Harriet and Rea opened a joint bank account to hold

      the proceeds of the sale of her home. For several years, Harriet made

      distributions to her children, including Gohler, from this account.


[3]   Harriet died on January 5, 2017. On September 6, 2017, Gohler opened an

      estate and was named personal representative.2 Gohler opened the Estate as

      intestate even though Harriet had a will; she also stated that the Estate was

      solvent even though there were no assets to be distributed.


[4]   Later that month, Rea filed a petition to probate Harriet’s will without

      administration and to close the Estate. In the petition, Rea stated that, pursuant

      to Harriet’s will, Suntrust Bank should be named personal representative and




      1
       Gohler’s brief refers to her mother as “Elizabeth,” appellant’s br. p. 4, but Rea and all documents in the
      appendix refer to the decedent as “Harriet,” so we will use that name throughout.
      2
          The document filed with the court by Gohler to open the Estate is not included in the appendix.


      Court of Appeals of Indiana | Memorandum Decision 18A-ES-1562 | February 20, 2019                     Page 2 of 8
      that the Estate should be closed because there were no assets to be

      administered.


[5]   The point of contention between Gohler and Rea is the joint bank account that

      was held by Rea and Harriet. The account reverted to Rea’s sole ownership

      upon Harriet’s death. Gohler believes that Rea “influenced” Harriet to remove

      this account “from a trust which benefited all children equally and place those

      assets into joint-ownership accounts with himself.” Appellant’s Br. p. 4.

      Gohler has never filed a claim against the Estate, nor has she ever sought to

      bring this bank account or any other property into the Estate.


[6]   Following a hearing, the trial court ordered that certain documents related to

      Harriet’s banking records be produced to Gohler. Following the production of

      those documents, the trial court held another hearing on November 30, 2017.

      Based on that hearing, the trial court issued an order that probated Harriet’s

      will, removed Gohler as personal representative, authorized Suntrust Bank to

      proceed as personal representative upon qualification, and took Rea’s petition

      to close the Estate under advisement.


[7]   On April 25, 2018, Gohler filed a petition to have Suntrust Bank removed as

      personal representative and herself appointed, alleging that Suntrust Bank was

      not authorized to act as a fiduciary because it was a nonresident corporation.

      The trial court held a hearing on this petition on June 5, 2018. At the hearing,

      Gohler indicated that she was seeking discovery from Harriet’s doctors and

      documents from her financial advisors because Gohler believed that Harriet had


      Court of Appeals of Indiana | Memorandum Decision 18A-ES-1562 | February 20, 2019   Page 3 of 8
been incapable of making asset transfers before she died. On June 6, 2018, the

trial court issued an order denying Gohler’s petition and closing the Estate. In

pertinent part, the trial court found as follows:


        1.       The parties would seem to agree to the following facts:

                 Decedent owned a valuable home in the State of
                 Florida. Prior to her death, Rea and his wife also
                 resided in the State of Florida and attended to the
                 care and well-being of Decedent. Decedent sold her
                 home in 2014 and placed the proceeds of that sale in
                 a bank account. Distributions were regularly made
                 to Rea, Gohler and their siblings from this joint
                 account title to which passed at the time of
                 Decedent’s death as a non-probate transfer. . . .

        2.       Decedent died more than nine (9) months ago.

        3.       Gohler has not filed a claim against the Estate.

        4.       Gohler has presented no evidence that she made a demand
                 of Suntrust Bank, as personal representative, pursuant to
                 I.C. 32-17-13-7.

        5.       Gohler has not commenced an action under I.C. 32-17-13
                 within nine (9) months of Decedent’s death, as required by
                 I.C. 32-17-13-8.

        6.       Gohler did not file her Petition to Remove Suntrust Bank
                 for more than nine (9) months after Decedent’s death.

        7.       The Estate remains open not due to issues related to the
                 administration of the Estate but to attempt to facilitate,
                 effectively, pre-suit discovery, which has been
                 unproductive and for which a factual basis has not been
                 established or well-defined.



Court of Appeals of Indiana | Memorandum Decision 18A-ES-1562 | February 20, 2019   Page 4 of 8
              8.       Gohler benefitted from the sale and transfer of which she
                       is now suspicious by the regular distribution of funds to
                       her from the proceeds of the sale of Decedent’s home.

              9.       There are no probate assets to be administered through this
                       Estate.

              10.      This Estate is ordered closed.


      Appealed Order p. 1-2. Gohler now appeals.


                                   Discussion and Decision
[8]   When, as here, the trial court enters sua sponte findings of fact and conclusions

      of law, we apply a two-tiered standard of review. Butler Univ. v. Unsupervised

      Estate of Verdak, 815 N.E.2d 185, 190 (Ind. Ct. App. 2004). First, we consider

      whether the evidence supports the findings, and second, we consider whether

      the findings support the judgment. Id. We will set aside the trial court’s

      judgment only if the findings and conclusions are clearly erroneous, leaving us

      with a firm conviction that a mistake has been made. Id. In conducting our

      review, we will consider only the evidence and inferences favorable to the

      judgment and will neither reweigh the evidence nor assess witness credibility.

      Id. To the extent that we must consider pure questions of law, we apply a de

      novo standard of review. Franklin Elec. Co. v. Lutheran Hosp. of Ind., 926 N.E.2d

      1036, 1042 (Ind. Ct. App. 2010).


[9]   It is undisputed that the passage of the joint bank account to Rea’s sole

      ownership upon Harriet’s death was a “nonprobate transfer.” Ind. Code § 32-

      17-13-1(a). The only Indiana Code provisions that specifically address recovery

      Court of Appeals of Indiana | Memorandum Decision 18A-ES-1562 | February 20, 2019   Page 5 of 8
       of a nonprobate transfer from the transferee can be found in Indiana Code

       chapter 32-17-13. A “claimant” of a nonprobate transfer “means the surviving

       spouse or a surviving child, to the extent that statutory allowances are affected,

       or a person who has filed a timely claim in a deceased transferor’s probate

       estate under IC 29-1-14, and is entitled to enforce the claim against a transferee

       of a nonprobate transfer.” A proceeding to recover a nonprobate transfer must

       be commenced within nine months of the decedent’s death or within sixty days

       after the personal representative received a timely written demand 3 by the

       claimant and declined or failed to commence a proceeding. I.C. § 32-17-13-

       8(a).


[10]   Gohler first argues that Indiana Code chapter 32-17-13 does not apply to her

       because she is neither pursuing a statutory allowance as a surviving child nor

       making a claim against the Estate. Instead, she argues that, “as prior and

       potential personal representative,” she sought to recover assets from Rea on

       behalf of the Estate. Appellant’s Br. p. 7. She essentially argues that because

       she did not file a claim against the Estate, these provisions do not apply to her.

       But that ignores the important question of whether she should have filed a claim

       against the Estate. A surviving child may not be making a claim related to

       statutory allowances but may still be a “person” who has filed a timely claim

       related to a nonprobate transfer.




       3
           It is undisputed that Gohler did not make a timely written demand of Suntrust Bank.


       Court of Appeals of Indiana | Memorandum Decision 18A-ES-1562 | February 20, 2019         Page 6 of 8
[11]   In short, we do not find Gohler’s argument to be persuasive. But even if she is

       correct, she does not prevail. While she was personal representative, she had

       the right—and duty—to take possession of Estate assets and the power to file

       any lawsuits necessary to recover possession of the Estate’s property. Ind. Code

       §§ 29-1-13-1, -3. She did not do so.


[12]   Even after she was removed as personal representative, as an heir to the Estate,

       she had the right to file a petition “alleging that any person has, or is suspected

       to have, concealed, embezzled, converted or disposed, of any real or personal

       property belonging to the estate of a decedent . . . .” I.C. § 29-1-13-10(a). She

       did not do so.


[13]   She could also have sought relief under Indiana Code section 29-1-13-16 by

       filing a petition alleging that she had “reason to believe and does believe that

       the personal representative of the estate or any other person is indebted to the

       estate, or that any property is in the possession of . . . any other person, and that

       diligent effort is not being made to collect such indebtedness or to secure

       possession of such property . . . .” She did not file such a petition.


[14]   Therefore, even if Gohler was not required to make a claim for a nonprobate

       transfer, she failed to take any of the other actions at her disposal to preserve




       Court of Appeals of Indiana | Memorandum Decision 18A-ES-1562 | February 20, 2019   Page 7 of 8
       her right to make any argument related to the joint bank account. Under any

       set of procedures, Gohler does not prevail.4


[15]   It is undisputed that there are no assets in the Estate to administrate. It is

       likewise undisputed that Gohler was more than willing to accept regular

       payments of money from the joint bank account for years during Harriet’s

       lifetime. It is only now, in retrospect, that Gohler wonders whether Harriet had

       the capacity to set up the arrangement that facilitated those distributions.

       Under these circumstances, even if Gohler had followed the proper procedures,

       the trial court would have been well within its discretion to deny her petition

       and close the Estate. See Inlow v. Henderson, Daily, Withrow & DeVoe, 787

       N.E.2d 385, 393 (Ind. Ct. App. 2003) (noting that the probate court, rather than

       the litigant, determines whether a petitioner’s claim of a person’s indebtedness

       to an estate has merit). We find no error with respect to the trial court’s order

       in this case.


[16]   The judgment of the trial court is affirmed.


       May, J., and Tavitas, J., concur.




       4
         She seems to argue that the trial court should have ordered her to file a petition rather than close the Estate.
       But the trial court is not required to order parties to follow the procedural channels they had not bothered to
       follow on their own.

       Court of Appeals of Indiana | Memorandum Decision 18A-ES-1562 | February 20, 2019                      Page 8 of 8
