In re Estate of Kemp ( 2010 )

[Cite as In re Estate of Kemp, 189 Ohio App.3d 232, 2010-Ohio-4073.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
IN RE ESTATE OF KEMP;
FENWICK, CASE NO. 2-09-28
APPELLANT. OPIN ON
Appeal from Auglaize County Common Pleas Court
Probate Division
Trial Court No. 2008 EST 0001
Judgment Reversed and Cause Remanded
Date of Decision: August 30, 2010
APPEARANCES:
James J. Condit, for appellant.
Dennis P. Faller, for appellees.
Barry W. Manez and David M. Pizley, for amicus curiae,
Barrett G. Kemp
WILLAMOWSKI, Presiding Judge.
Case No. 2-09-28
{¶ 1} Appellant, Cheryl Fenwick, appeals from the judgment of the Court
of Common Pleas of Auglaize County, Probate Division, denying the exceptions
to the inventory of the decedent. For the reasons set forth below, the judgment is
reversed.
{¶ 2} Shirley Kemp, the decedent, died on June 17, 2007. On January 2,
2008, Barry Kemp filed an application to probate the decedent’s will and a copy of
the will. The will named the decedent’s four daughters, Fenwick, Joni Ahlers,
Jayne Fahncke, and Lori Morris, as co-executors. After many disputes, legal
proceedings, and changes of attorney, on February 28, 2008, all heirs and next of
kin agreed that Ahlers and Fahncke would be co-executors. On February 25,
2009, the trial court sent a notice to the co-executors that a show-cause hearing
had been set for April 3, 2009, due to their failure to file the inventory. On April
3, 2009, the trial court granted a continuance on the hearing until May 8, 2009, so
that the co-executors would obtain appraisals. On May 28, 2009, the parties
requested to have until June 19, 2009, to get the inventory filed. This motion was
granted that same day, and the appraisers were appointed. The inventory and
schedule of assets was filed on June 19, 2009. A hearing on the inventory was
scheduled for August 7, 2009. On July 30, 2009, Fenwick filed exceptions to the
inventory and appraisal, alleging that several items were missing from the
inventory. Kemp filed exceptions to the inventory on July 31, 2009.
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{¶ 3} On November 6, 2009, a hearing was held on the exceptions. At the
hearing, the two co-executors each testified. The trial court entered judgment
denying the exceptions on November 9, 2009. Fenwick appeals from this
judgment and raises the following assignment of error.
The trial court erred by overruling (denying) the exceptions to the
inventory and finding that there is no additional property to be
included in the inventory.
{¶ 4} Fenwick argues in the assignment of error that the trial court erred
in excluding half the tax refund for 2007 and excluding the additional personal
property. The fiduciaries of an estate are responsible for collecting all the assets
of the decedent. R.C. 2113.25. Assets have been defined as “all the property of a
person (esp. a bankrupt or deceased person) available for paying debts or for
distribution.” Black’s Law Dictionary (9th Ed.2009) 134. In an estate, assets are
divided into two categories: probate and nonprobate. A nonprobate asset is one
that is exempted from administration by statute or one that passes by virtue of a
contract activated by the death of the decedent. Id. at 135. All other property
owned by the decedent is a probate asset. The fiduciary must list all probate
assets on an inventory within three months of appointment. R.C. 2115.02. After
the inventory is completed, it is filed with the trial court, and a hearing date is set.
If an heir or other interested party disagrees with the content of the inventory,
either believing that items have been omitted or that other items have been
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included that should not have been, they may file an exception to the inventory at
least five days before the scheduled hearing. R.C. 2115.16. “The hearing of
exceptions to an inventory under [R.C. 2115.16], is a summary proceeding
conducted by the Probate Court to determine whether those charged with the
responsibility therefor have included in a decedent’s estate more or less than such
decedent owned at the time of [her] death.” In re Estate of Gottwald (1956), 164
Ohio St. 405, 131 N.E.2d 586, paragraph one of the syllabus.
{¶ 5} “The representative of an estate has an obligation and mandatory
duty to seek out and collect every asset belonging to the decedent at the time of
[her] death and include it in the estate.” In re Estate of Ewing, 3d Dist. No. 5-03-
03, 2003-Ohio-4734, ¶ 12. This duty exists from the time the executor is
appointed until the final account is filed and the executor is discharged. Id. If the
record indicates that the inventory is inaccurate and is lacking assets that should
have been included, the trial court errs in approving it. Id. In addition, the items
to be included in the inventory are not limited to only the items in the estate’s
actual possession. In re Estate of Kelsey, 165 Ohio App.3d 680, 2006-Ohio-1171,
847 N.E.2d 1277.
{¶ 6} In this case, Fenwick alleges that the inventory is lacking several
assets. Prior to the hearing, all parties agreed that there were several items
missing and agreed to include them. However, the parties continued to disagree
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as to whether the following items should have been included: (1) Jean Thomas
Designs items, (2) various personal property such as holiday glassware,
Longaberger baskets, photo equipment, office equipment, and Christmas
decorations, (3) personal items of decedent, such as jewelry, bicycle, purses, and
coats, and (4) one half of the 2007 tax refund received from the joint return filed
by decedent’s husband. Ahlers testified at the hearing concerning these items.
She testified that in her position as co-executor, she requested information from
the IRS concerning whether a tax refund was filed for 2007 on behalf of her
mother. Through her investigation as co-executor, she learned that a joint refund
in the amount of $13,739.00 had been paid to the decedent’s husband. She
presented a copy of a tax-return transcript provided by the Internal Revenue
Service as evidence of the amount of the refund. However, the transcript was
excluded as not being properly authenticated. The requirement of authentication
is satisfied “by evidence sufficient to support a finding that the [evidence] in
question is what its proponent claims.” Evid.R. 901(A). Here, the only testimony
was Ahlers’s statement, “I asked and gave the IRS my court appointed papers and
they sent me this information.” This testimony is not sufficient to authenticate the
document, as she has no personal knowledge of the contents of the tax return.
Although the tax return itself was not admissible, Ahlers’s personal knowledge as
fiduciary, that she learned upon investigation of the decedent’s assets, is still in
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the record. She testified that there was a tax refund to which the decedent had a
right. This testimony was not disputed in any way. Thus, the portion of the tax
refund to which the decedent (and, thus, her estate) had a right should have been
included in the inventory, and the trial court erred in ignoring it.1
{¶ 7} Fenwick also contends that there were numerous items of personal
property that were not included on the inventory. The testimony of Ahlers and
Exceptor’s Exhibit B indicate the nature of this property and provide that
appraisals need to be done. The testimony of Fahncke does not dispute the
existence of these items. Rather, she testified that the items had already been
disbursed after the decedent’s death or should go to other people and thus should
not be included in the inventory. She admitted that she did not have household
items appraised. Fahncke testified that she included only the items that her
mother had specifically told her should be given out at her death on the inventory.
Id. She testified that she did not believe that she should include anything
purchased for the house by the decedent because that was for the decedent and her
spouse, not the children. Any item of tangible personal property not identified by
the decedent as going to one of her daughters was not included in the inventory.
The possession of the items or eventual title of ownership to the items is irrelevant
1
This court notes that the amount of the decedent’s portion of the refund that should be included on the
inventory was not necessarily proven. However, nothing changes the fact that the refund was a joint refund
and that the decedent had an interest in it. The value of the asset can be determined by the fiduciaries when
the new inventory is filed.
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to whether the items should be included in the inventory. Kelsey, 165 Ohio
App.3d 680, 2006-Ohio-1171, 847 N.E.2d 1277. All probate assets in which the
decedent had an interest at the time of her death must be included on the
inventory.2 A review of the inventory does not include any totals for personal
property, household goods and furnishings, or miscellaneous items. Instead, it
identifies only specific items, which do not include the items listed in the
exceptions. In viewing the items listed in the inventory and the uncontroverted
testimony of the witnesses as to the existence and ownership of other items not
included on the inventory, we hold that the trial court erred in not granting the
exceptions. Therefore, the assignment of error is sustained.
{¶ 8} The judgment of the Court of Common Pleas of Auglaize County,
Probate Division, is reversed, and the matter is remanded for further proceedings.
Judgment reversed
and cause remanded.
ROGERS and PRESTON, J.J., concur.
2
Although the items must be included in the inventory, they do not need to be individually identified
unless of unusual value for the item.
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