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In re Estate of Svetichan12/16/2003
. Appellants Raymond M. Svetichan ("Ray Sr.") and his son Raymond M. Svetichan II ("Ray Jr.") appeal the decision of the Mahoning County Probate Court, which placed $300,000 from a settlement into a wrongful death trust with Butler Wick as the trustee rather than give nineteen-year-old Ray Jr. the money outright. The issues are whether the court abused its discretion in determining that a wrongful death trust was appropriate and whether the court erroneously appointed Butler Wick as trustee without Ray Jr.'s approval. For the following reasons, the decision of the trial court to create a wrongful death trust is reversed.
STATEMENT OF THE CASE
. On June 13, 2000, Ray Jr.'s mother died in surgery. Ray Sr. was the executor of his wife's estate and he opened an estate case in order to probate her will. He also filed a wrongful death action, which eventually settled. In August 2002, Ray Sr. applied to the probate court for approval of the settlement and distribution of the funds. A hearing was held before the magistrate on November 4, 2002. Ray Sr., Ray Jr., and Ray Sr.'s mother testified about Ray Jr.'s maturity and responsibility.
. On November 25, 2002, the magistrate determined the settlement was reasonable, the litigation expenses were reasonable, and the attorneys were entitled to extraordinary fees. The magistrate then divided the funds among the beneficiaries. The disputed portion of the magistrate's decision deals with how the portion of the funds awarded to Ray Jr. were distributed. Specifically, Ray Jr. was awarded a total of $420,671 with $120,671 to be paid immediately and $300,000 to be placed in a wrongful death trust with a corporate trustee. The magistrate noted that Ray Jr. could suggest a corporate trustee to administer the trust. On November 29, 2002, the probate court entered an order approving the settlement and distribution of funds in this same manner. The Svetichans filed notice of appeal from this entry resulting in case number 02 CA 246.
. On December 6, 2002, the Svetichans filed objections to the magistrate's decision arguing that it was against the weight of the evidence, contrary to law, and an abuse of discretion. They reviewed the testimony which established that Ray Jr. was trustworthy and financially responsible, concluding that he should have been awarded his entire share of the settlement outright. They alternatively argued that the beneficiary has the right to approve the trustee and that the trustee fees charged by a corporate entity could be avoided if a private individual like Ray Sr. was appointed as the trustee. While these objections were pending, the magistrate continued to act regarding appointment of the trustee and payment of the funds.
. On February 3, 2003, the magistrate stated that since no corporate trustee was suggested by the beneficiary, it would select Butler Wick. The magistrate also ordered Ray Sr. as executor to immediately pay $300,000 to Butler Wick as trustee for Ray Jr. A few days later, the probate court entered a similar order. On February 11, 2003, the Svetichans filed objections to the February 3 magistrate's decision appointing Butler Wick as trustee.
. On March 11, 2003, the probate court released its decision concerning the objections to the magistrate's November 25, 2002 decision and the magistrate's February 3, 2003 decision. The court explained that it had wide discretion under a statute allowing trusts to be created out of wrongful death funds payable to those under twenty-five. The court noted that Ray Jr. was given a sizable sum outright, $120,671. The court then concluded that the remaining $300,000 is a large sum which "should be managed by a professio
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