In the course of proceedings for an accounting and final settlement of the estate of Mildred Willeen Holtzclaw the “decedent”, Sue Holtzclaw Dispain “Dispain” filed a motion to recover attorney fees and to deny reimbursement to the executor, Sara Holtzclaw Waters “Waters”, for expenses incurred in litigating the petition for accounting. The probate court granted Dispain’s motion for attorney fees, ordering them to be paid from the estate, and denied Dispain’s motion to deny reimbursement to the executor for attorney fees. Dispain appeals, arguing that her attorney fees should be paid by Waters personally rather than by the estate; and that Waters’s attorney fees also should not be assessed against the estate because they are the result of her own malfeasance. For reasons that follow, we reverse. The decedent died in 1983 and was survived by three children: Dispain, Waters, and Charles Holtzclaw. Waters was appointed executor under the decedent’s will on January 20, 1984. In May 2005, Dispain filed a petition for an accounting; at that time, the estate had been open over 20 years. The probate court ordered Waters to file an accounting and to produce detailed records relating to the estate, including bank statements, deeds, and tax returns. After a hearing at which Waters “filed a very simple accounting,” the probate court ordered her to hire a Certified Public Accountant to prepare an accounting, provide the accounting and financial records for the estate to Dispain, and retain a title examiner to check the title of all real property owned by the decedent.
Following a subsequent hearing, the probate court found that “discrepancies exist within the various accounting documents generated for the estate regarding the collection of rent on real property, the interest income of the estate, distributions made to beneficiaries of the estate, and executor commissions taken by . . . Waters.” The probate court ordered Waters to produce multiple specific documents and take certain actions, including filing a proposed final settlement and distribution of the estate. At a hearing on June 9, 2006, Waters was again unable to make an accurate accounting of the estate, and the probate court scheduled a hearing on a final settlement and accounting. After this hearing, the probate court held that the estate could have been settled as early as 1992, that “Waters’s inability to accurately account for the assets of the estate and her failure to expeditiously settle the estate are breaches of her fiduciary duty,” and that the estate should be closed.
