Estate. Fulton Probate Court. Before Judge Toomer.
Judgment affirmed in part and vacated in part, and case remanded with direction.
Lefkoff, Duncan, Grimes, McSwain & Hass, John R. Grimes, for appellant.
Ann J. Herrera, Jackson L. Culbreth, for appellees.
RAY, Judge. Andrews, P. J., and McFadden, J., concur.
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 affirm in part, vacate 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 12½ 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" ).
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. 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 [328 Ga.App. 180] 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 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 ...