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In re Estate of Abraitis

Court of Appeals of Ohio, Eighth District, Cuyahoga

February 15, 2018

IN RE: ESTATE OF SARUNAS V. ABRAITIS

         Civil Appeal from the Cuyahoga County Court of Common Pleas Probate Court Division Case No. 2017 EST 222341

          ATTORNEY FOR APPELLANT Catherine M. Brady.

          ATTORNEYS FOR APPELLEES For Egidijus K. Marcinkevicius Egidijus Marcinkevicius Brenda T. Bodnar Algis Sirvaitis Algis Sirvaitis & Co.

          For Adam M. Fried Adam M. Fried Martin T. Galvin Paul R. Shugar David J. Walters Reminger Co., L.P.A.

          BEFORE: Jones, J., E.T. Gallagher, P.J., and Celebrezze, J.

          JOURNAL ENTRY AND OPINION

          LARRY A. JONES, SR., JUDGE.

         {¶1} Appellant-attorney Catherine Brady ("Brady"), former executor of the estate of Sarunas V. Abraitis ("Abraitis"), appeals the trial court's decision to remove her as executor. Finding no merit to the appeal, we affirm.

         {¶2} In 2008, Abraitis's mother, Vlada Abraitis, died. Abraitis was appointed executor of her estate in 2011. Brady was his attorney at the time. In 2013, the probate court removed Abraitis from his position as executor, finding that he had concealed assets of her estate. He was ordered to repay $575, 870.30 to his mother's estate.

         {¶3} The court named appellee-attorney Adam Fried ("Fried") as the successor executor on Vlada's estate. The court also found that Brady engaged in frivolous conduct with respect to the administration of the estate. The court ordered Brady and Abraitis to pay attorney fees and expenses to Fried in the amount of $104, 485 in attorney fees and $1, 214.59 in expenses. Brady appealed, but this court affirmed the probate court's decision. In re Estate of Abraitis, 8th Dist. Cuyahoga No. 104816, 2017-Ohio-5577, discretionary appeal not allowed, Slip Opinion No. 2017-1131, 2017-Ohio-9111.

         {¶4} Abraitis died on January 4, 2017. In accordance with his will, Brady was appointed executor of his estate. Fried, as fiduciary of Vlada's estate, filed a claim against Abraitis's estate, but Brady rejected the claim. Fried then moved to remove Brady as executor of the estate. The trial court held a hearing, granted the motion removing Brady as executor, and appointed appellee-attorney Egidijus Marcinkevicius as successor fiduciary to Abraitis's estate.

         {¶5} In its decision removing Brady as the executor, the trial court found the following: (1) during the hearing, Brady was "evasive, argumentative and largely unaware of what her responsibilities were" as executor of the estate; (2) Brady admitted to receiving a large amount of cash from Abraitis shortly before his death, which she had failed to account for or list as an estate asset; and (3) Brady testified she knew Abraitis used a false social security number on at least one bank account belonging to the estate.

         {¶6} The court further found that Brady had a "clear conflict in serving as executrix of this estate due to the judgment rendered between her and decedent, jointly and severally, " and "Brady's rejection of Adam Fried's claim on behalf of the estate of Abraitis's mother is further indication of conflict and falls within the allowance under R.C. 2113.18."

         {¶7} Brady now appeals, raising the following assignments of error for our review:

I. The probate court erred as a matter of law where the movant for removal, Adam Fried, Successor Fiduciary of the Estate of Vlada Abraitis, lacked standing to ...

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