In re Estate of Fitzsimmons

Appellant Joanne Fitzsimmons Balkam appealed the superior court's partial summary judgment decision that reversed a probate court decision that had granted her permission, as executor of her mother's estate, to physically partition and sell parts of a real estate property to make a division between the heirs of her mother's residual estate. The appellees were two of her brothers, Dennis and James Fitzsimmons. The issues raised in executor's appeal were whether the probate court had the power to allow the heirs to choose which property they received and whether the executor had the power to contract for a survey. Dennis and James raised five issues on appeal: the first two contested the probate court's ruling on their claim of waste and their claim that the accounting was flawed; the last three addressed the power of the executor and the probate court with respect to the distribution of the property: (1) whether executor had the power to subdivide the estate, (2) whether executor's proposed division met the requirement of the will that the estate be distributed into "as nearly equal shares as possible", and (3) whether the probate court's division was proper under its power to partition in 14 V.S.A. 1729. The superior court, in granting appellees' motion for partial summary judgment, and denying the motion for the license to sell real estate, disagreed with the probate court, and found that because legal title to real property passes to beneficiaries immediately upon the death of a testator, the executor had "limited ability to affect the beneficiaries' ownership of the real property" and could not partition the property. Whether or not by mistake, however, the Supreme Court concluded the superior court did not take up all the issues before it. Dennis and James filed a motion to reconsider the remand to the probate court, asking the superior court to deal with the remaining issues. Executor did not respond to that motion, but instead filed a notice of appeal to the Supreme Court requesting that it reverse the superior court's summary judgment order regarding executor's power to partition the property. While the Supreme Court held that the executor has the power to partition or sell the property to distribute to testator's children, it did not suggest that the power was unlimited. "The executor is bound by the requirement that the distribution shares be as equal as possible." The Court found the superior court erred in its reasoning on whether the executor had the power to subdivide. On remand, the Supreme Court mandated the trial court must move on to the fourth and fifth questions in light of executor's action pursuant to her distribution power. It must also answer the first and second questions. View "In re Estate of Fitzsimmons" on Justia Law