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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Apr 21 2009, 9:41 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: R. PERRY SHIPMAN Fowler, Indiana

ATTORNEY FOR APPELLEE: JOHN T. CASEY Rensselaer, Indiana

IN THE COURT OF APPEALS OF INDIANA
ANGELA FOSTER, Appellant-Plaintiff, vs. THE ESTATE OF DARLENE SHOEMAKER, DECEASED, JAMES SHOEMAKER, PERSONAL REPRESENTATIVE, Appellee-Defendant. ) ) ) ) ) ) ) ) ) ) )

No. 04A05-0809-CV-562

APPEAL FROM THE BENTON CIRCUIT COURT The Honorable Rex W. Kepner, Judge Cause No. 04C01-0805-ES-21

April 21, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION BAILEY, Judge

Case Summary Angela Foster ("Foster") appeals an order of the Benton Circuit Court refusing to dismiss probate proceedings initiated by James Shoemaker ("Shoemaker") as personal representative of the intestate estate of decedent Darlene Shoemaker ("the Estate"), and directing Foster to return checking account funds to the Estate. We affirm. Issues Foster presents three issues for review: I. Whether the probate court was required to grant Foster's motion to dismiss the petition for administration of an estate because Foster had previously collected estate property pursuant to a small estate affidavit procedure; Whether the probate court lacked authority to issue an order compelling Foster and her brother to return to the Estate funds collected pursuant to the small estate affidavit procedure; and Whether the probate court had authority to order the payment of medical bills that were not timely filed. Facts and Procedural History Darlene Shoemaker died intestate on September 5, 2007, survived by her husband, Shoemaker, her daughter, Foster, and her son, Rodney Winebrenner ("Winebrenner"). She left an estate consisting of a checking account of $26,000 and a 1999 Buick automobile valued at $4,890. On May 12, 2008, Foster executed a small estate affidavit, according to Indiana Code Section 29-1-8-1,1 and presented it to the Farmers and Merchants Bank of Boswell, Indiana.

II.

III.

1

Indiana Code Section 29-1-8-1, applicable to estates having a gross value of $50,000 or less, provides that,

2

The bank released $26,000 to Foster, who retained $6,500 and distributed $13,000 to Shoemaker and $6,500 to Winebrenner. Nine days later, on May 21, 2008, Shoemaker filed his "Petition for Issuance of Letters and Leave to Administer Intestate Estate with Court Supervision." (App. 25.) The probable value of the estate was listed as $30,890 (consisting of the $26,000 checking account and the Buick valued at $4,890).2 The probate court immediately appointed Shoemaker the personal representative of the Estate. On May 28, 2008, Foster filed her motion to dismiss the petition for administration, contending that Shoemaker's action was "precluded by another legal proceeding & laches." (App. 19.) Foster also filed a motion requesting that the probate court compel Shoemaker to deliver the Buick to Foster for a sale and distribution of proceeds. Shoemaker responded with a motion that the probate court compel Foster and Winebrenner to return to the Estate the checking account funds distributed to them. The probate court conducted a hearing on September 8, 2008. At the hearing, Shoemaker asserted his intention to claim from the Estate his surviving spouse allowance of $25,000. See Ind. Code

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