In Re Estate of Ruth S. Hubert

The probate court improperly modified the terms of the parties' mediated settlement agreement by deciding the final issue of equalizing the decedent's estate rather than merely resolving disputed or open issues arising from the designated accountant's draft report and then allowing the accountant to complete the work of calculating the equalized distributions.

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These cases, which we have consolidated for appeal, involve a dispute between four siblings who are co-executors of their mother’s estate. The parties dispute how to achieve the intent of their mother, Ruth Swann Hubert “Mrs. Hubert”, to equalize estate assets among them. Judith Hubert Manning brought a petition in probate court against Richard Hubert, Marilyn Hubert Kemper, and Deborah Hubert to enforce a mediated settlement agreement regarding the distribution of the estate. Richard Hubert, Marilyn Kemper, and Deborah Hubert counterclaimed for, inter alia, breach of fiduciary duty against Judith Manning. After a bench trial, the probate court entered an order of judgment in which she set forth how the estate was to be distributed, found that Judith Manning had not breached her fiduciary duty, ordered all of the siblings removed as co-executors, and ordered Richard Hubert and Deborah Hubert to pay attorney fees to Judith Manning. Richard Hubert, Marilyn Kemper, and Deborah Hubert appealed in Cases No. A13A1484, A13A1485 and A13A1486, respectively, and the probate court ordered them each to post a bond pursuant to OCGA § 53-7-55, which allows a probate court, upon good cause, to require additional security from the personal representative of an estate.

Richard Hubert, Marilyn Kemper, and Deborah Hubert argue that, in ruling on how the estate assets should be distributed among the parties, the probate court improperly modified the terms of the settlement agreement in her order. We agree, because the unambiguous terms of the settlement agreement require an accountant to complete certain determinations before the equalization of the estate assets can be calculated, and it is undisputed that the accountant has not yet completed those determinations. Accordingly, we reverse that part of the probate court’s order regarding the distribution of estate assets and remand the case for proceedings not inconsistent with this opinion. In light of this ruling, we also reverse the award of attorney fees against Richard Hubert and Deborah Hubert.

In Re Estate of Ruth S. Hubert

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