Probate Court Decides Tax Issue

September 4, 2014,

A New York Probate Lawyer said this is a proceeding submitted for decision wherein the issue is the source of payment for fees awarded to a guardian ad litem. In this probate proceeding, the will "pours over" into an inter vivos trust. The court is tasked to decide whether trust assets can be used to pay all or part of the fee under SCPA 405(1).

The court finds that the fee may be paid from trust assets.

A New York Estate Lawyer said on 24 January 2006, F died a resident of Nassau County. On 24 October 2003, he had created the "F Revocable Trust U/A dated 24 October 2003." At that time, F also executed his will, the instrument that is offered for probate. Both instruments were drafted by the decedent's long-time attorney who also supervised the execution of both documents. As is customary with estate plans of this sort, the bulk of the decedent's assets were transferred to the trust while he was alive. As a result, the will was designed to be a "catch all" so that any stray assets left in the decedent's estate would be captured and distributed in accord with the terms of the trust. The probate petition reflects a probate estate of less than $10,000.00 while the trust holds assets close to $1,000,000.00.

A New York Estate Lawyer said the guardian ad litem, who was appointed to represent the interests of the decedent's daughter, examined the circumstances surrounding the execution of both the trust and the will. In her affidavit of services the guardian ad litem stated that she spent 7.2 hours on the matter, representing a charge of $2,828.00 for services rendered.

It should be noted that SCPA 405(1) governs the compensation of a guardian ad litem. It provides that said fee may be "payable from any or all of the following, in such proportion as directed by the court: a) the estate; b) the interest of the person under disability; or, c) for good cause shown, any other party."

Nassau County Probate Lawyers said that while SCPA 405 generally contemplates the fee of the guardian ad litem in a probate proceeding will be paid out of estate assets or the ward's share of the probate estate, the circumstances before the court justify a different result.

In a probate proceeding that involves a will that pours over into a pre-existing inter vivos trust, that trust is a party to the probate proceeding either via its trustees or its beneficiaries and either as a cited or noticed party. The responsibilities of the guardian ad litem included a review and investigation of both the will and the trust. In Matter of Stralem,it was held that while the following is extremely unlikely to ever occur, it does present a scenario where a legal fee adjustment would be mandated. For example, if A died leaving a testamentary estate of $100,000 and bequeathed $75,000 to B but also exercised a power of appointment over the remainder of a trust of over $100 million in favor of C where the default beneficiary was D, one can imagine a very costly probate contest brought by D and defended by C, the nominated executor. It is also not hard to imagine legal expenses far exceeding $100,000. The question is where the will contest to be settled between C and D, would it be appropriate to wipe out the estate in legal fees and thus extinguish B's bequest of $75,000? The court finds that the answer would clearly be that it would be inappropriate.
Based on the foregoing, the court holds that the assets of the F Revocable Trust U/A dated 24 October 2003 may be used as a source of funds to pay the fee of the guardian ad litem.
In Matter of Stortecky v Mazzone and Matter of Vitole, Matter of Phelan, it was held that the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of the administration of an estate. This remains true even in the event that the parties have consented to the requested fee akin to Matter of Stortecky v Mazzone and Matter of Phelan.

A Staten Island Probate Lawyer said in Matter Of Brehm and Matter of Wilhelm, the court notes that while there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority with reason, proper discretion and not arbitrarily.

In evaluating the cost of legal services, the court may consider a number of factors. These include: the time spent akin to Matter of Kelly; the complexity of the questions involved akin to Matter of Coughlin; the nature of the services provided akin to Matter of Von Hofe; the amount and complexity of litigation required akin to Matter of Sabatino; the amounts involved and the benefit resulting from the execution of such services aki to Matter of Shalman; the lawyer's experience and reputation akin to Matter of Brehm; and, the customary fee charged by the Bar for similar services akin to Matter of Freeman and Matter of Potts.

In discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements set forth in Matter of Potts, Matter of Freeman and Matter of Berkman.

Morerover, the legal fee must bear a reasonable relationship to the size of the estate and to the interest of the ward of the guardian ad litem as in Matter of McCranor, Matter of Kauffman, Matter of Phipps and Matter of Ault. Further, it is well-settled that time spent is, in fact, the least important factor considered by a court in fixing reasonable compensation akin to Matter of Snell, Matter of Potts, and Matter of Kentana.

Under SCPA 405, the guardian ad litem is entitled to a fee for his or her services rendered. These factors apply equally to an attorney retained by a fiduciary or to the court-appointed guardian ad litem as was also held in Matter of Graham, Matter of Burk, Matter of Ault, Matter of Berkman, Matter of Burnett and Matter of Reisman. Moreover, the nature of the role played by the guardian ad litem is an additional consideration in determining his or her fee as held in Matter of Ziegler.

Generally, the fee of a guardian ad litem is an administration expense of an estate and is paid from estate assets but Matter of Stralem is an exception. However, a party may be charged with payment of the compensation of a guardian ad litem where the actions of such party generated unnecessary, unfounded, or purely self-serving litigation that resulted in the appointment of a guardian in accordance with SCPA 405 and based on the ruling in Matter of Ault.

The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services similar to the rulings in Matter of Potts and Matter of Spatt.

Contemporaneous records of legal time spent on estate matters are important to the court in the determining whether the amount of time spent was reasonable for the various tasks performed as was also held in Matter of Phelan, Matter of Von Hofe. In the absence of contemporaneous time records, little weight is given to estimates of time after the services have been performed as ruled in Matter of Phelan. This applies to the fee of a guardian ad litem as was held in Matter of Carbone.
Therefore, the court approves the fee of the guardian ad litem in the amount requested, $2,828.00 and orders that it will be paid from the trust assets within (30) days of the date of this decision.

Bronx County Probate Lawyers, Bronx County Last Will and Testament Lawyers and Stephen Bilkis & Associates will gladly discuss with you the issues and pertinent laws mentioned in the case above. Should you wish to seek our advice, please feel free to call our toll free numbers or visit our office nearest you. A team of experts are waiting.

Court Discusses Pour Over Will and Intervivos Trust

September 3, 2014,

A New York Probate Lawyer said this is a proceeding submitted for decision wherein the issue is the source of payment for fees awarded to a guardian ad litem. In this probate proceeding, the will "pours over" into an inter vivos trust. The court is tasked to decide whether trust assets can be used to pay all or part of the fee under SCPA 405(1).

The court finds that the fee may be paid from trust assets.

A New York Estate Lawyer said that on 24 January 2006, F died a resident of Nassau County. On 24 October 2003, he had created the "F Revocable Trust U/A dated 24 October 2003." At that time, F also executed his will, the instrument that is offered for probate. Both instruments were drafted by the decedent's long-time attorney who also supervised the execution of both documents. As is customary with estate plans of this sort, the bulk of the decedent's assets were transferred to the trust while he was alive. As a result, the will was designed to be a "catch all" so that any stray assets left in the decedent's estate would be captured and distributed in accord with the terms of the trust. The probate petition reflects a probate estate of less than $10,000.00 while the trust holds assets close to $1,000,000.00.
The guardian ad litem, who was appointed to represent the interests of the decedent's daughter, examined the circumstances surrounding the execution of both the trust and the will. In her affidavit of services the guardian ad litem stated that she spent 7.2 hours on the matter, representing a charge of $2,828.00 for services rendered.

Westchester County Probate Lawyers said it should be noted that SCPA 405(1) governs the compensation of a guardian ad litem. It provides that said fee may be "payable from any or all of the following, in such proportion as directed by the court: a) the estate; b) the interest of the person under disability; or, c) for good cause shown, any other party."

While SCPA 405 generally contemplates the fee of the guardian ad litem in a probate proceeding will be paid out of estate assets or the ward's share of the probate estate, the circumstances before the court justify a different result.

Suffolk County Probate Lawyers said in a probate proceeding that involves a will that pours over into a pre-existing inter vivos trust, that trust is a party to the probate proceeding either via its trustees or its beneficiaries and either as a cited or noticed party. The responsibilities of the guardian ad litem included a review and investigation of both the will and the trust. In Matter of Stralem,it was held that while the following is extremely unlikely to ever occur, it does present a scenario where a legal fee adjustment would be mandated. For example, if A died leaving a testamentary estate of $100,000 and bequeathed $75,000 to B but also exercised a power of appointment over the remainder of a trust of over $100 million in favor of C where the default beneficiary was D, one can imagine a very costly probate contest brought by D and defended by C, the nominated executor. It is also not hard to imagine legal expenses far exceeding $100,000. The question is where the will contest to be settled between C and D, would it be appropriate to wipe out the estate in legal fees and thus extinguish B's bequest of $75,000? The court finds that the answer would clearly be that it would be inappropriate.
Based on the foregoing, the court holds that the assets of the F Revocable Trust U/A dated 24 October 2003 may be used as a source of funds to pay the fee of the guardian ad litem.

In Matter of Stortecky v Mazzone and Matter of Vitole, Matter of Phelan, it was held that the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of the administration of an estate. This remains true even in the event that the parties have consented to the requested fee akin to Matter of Stortecky v Mazzone and Matter of Phelan.
In Matter Of Brehm and Matter of Wilhelm, the court notes that while there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority with reason, proper discretion and not arbitrarily.

In evaluating the cost of legal services, the court may consider a number of factors. These include: the time spent akin to Matter of Kelly; the complexity of the questions involved akin to Matter of Coughlin; the nature of the services provided akin to Matter of Von Hofe; the amount and complexity of litigation required akin to Matter of Sabatino; the amounts involved and the benefit resulting from the execution of such services aki to Matter of Shalman; the lawyer's experience and reputation akin to Matter of Brehm; and, the customary fee charged by the Bar for similar services akin to Matter of Freeman and Matter of Potts.

In discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements set forth in Matter of Potts, Matter of Freeman and Matter of Berkman.

Morerover, the legal fee must bear a reasonable relationship to the size of the estate and to the interest of the ward of the guardian ad litem as in Matter of McCranor, Matter of Kauffman, Matter of Phipps and Matter of Ault. Further, it is well-settled that time spent is, in fact, the least important factor considered by a court in fixing reasonable compensation akin to Matter of Snell, Matter of Potts, and Matter of Kentana.

Under SCPA 405, the guardian ad litem is entitled to a fee for his or her services rendered. These factors apply equally to an attorney retained by a fiduciary or to the court-appointed guardian ad litem as was also held in Matter of Graham, Matter of Burk, Matter of Ault, Matter of Berkman, Matter of Burnett and Matter of Reisman. Moreover, the nature of the role played by the guardian ad litem is an additional consideration in determining his or her fee as held in Matter of Ziegler.

Generally, the fee of a guardian ad litem is an administration expense of an estate and is paid from estate assets but Matter of Stralem is an exception. However, a party may be charged with payment of the compensation of a guardian ad litem where the actions of such party generated unnecessary, unfounded, or purely self-serving litigation that resulted in the appointment of a guardian in accordance with SCPA 405 and based on the ruling in Matter of Ault.

The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services similar to the rulings in Matter of Potts and Matter of Spatt. Contemporaneous records of legal time spent on estate matters are important to the court in the determining whether the amount of time spent was reasonable for the various tasks performed as was also held in Matter of Phelan, Matter of Von Hofe. In the absence of contemporaneous time records, little weight is given to estimates of time after the services have been performed as ruled in Matter of Phelan. This applies to the fee of a guardian ad litem as was held in Matter of Carbone.
Therefore, the court approves the fee of the guardian ad litem in the amount requested, $2,828.00 and orders that it will be paid from the trust assets within (30) days of the date of this decision.

Bronx County Probate Lawyers, Bronx County Last Will and Testament Lawyers and Stephen Bilkis & Associates will gladly discuss with you the issues and pertinent laws mentioned in the case above. Should you wish to seek our advice, please feel free to call our toll free numbers or visit our office nearest you. A team of experts are waiting.

Court Determines Fees for Guardian ad Litem

September 2, 2014,

A New York Probate Lawyer said this is a proceeding submitted for decision wherein the issue is the source of payment for fees awarded to a guardian ad litem. In this probate proceeding, the will "pours over" into an inter vivos trust. The court is tasked to decide whether trust assets can be used to pay all or part of the fee under SCPA 405(1).
The court finds that the fee may be paid from trust assets.

On 24 January 2006, F died a resident of Nassau County. On 24 October 2003, he had created the "F Revocable Trust U/A dated 24 October 2003." At that time, F also executed his will, the instrument that is offered for probate. Both instruments were drafted by the decedent's long-time attorney who also supervised the execution of both documents. As is customary with estate plans of this sort, the bulk of the decedent's assets were transferred to the trust while he was alive. As a result, the will was designed to be a "catch all" so that any stray assets left in the decedent's estate would be captured and distributed in accord with the terms of the trust. The probate petition reflects a probate estate of less than $10,000.00 while the trust holds assets close to $1,000,000.00.

A New York Estate Lawyer said the guardian ad litem, who was appointed to represent the interests of the decedent's daughter, examined the circumstances surrounding the execution of both the trust and the will. In her affidavit of services the guardian ad litem stated that she spent 7.2 hours on the matter, representing a charge of $2,828.00 for services rendered.

It should be noted that SCPA 405(1) governs the compensation of a guardian ad litem. It provides that said fee may be "payable from any or all of the following, in such proportion as directed by the court: a) the estate; b) the interest of the person under disability; or, c) for good cause shown, any other party."

Westchester County Probate Lawyers said that while SCPA 405 generally contemplates the fee of the guardian ad litem in a probate proceeding will be paid out of estate assets or the ward's share of the probate estate, the circumstances before the court justify a different result.

Suffolk County Probate Lawyers said that in a probate proceeding that involves a will that pours over into a pre-existing inter vivos trust, that trust is a party to the probate proceeding either via its trustees or its beneficiaries and either as a cited or noticed party. The responsibilities of the guardian ad litem included a review and investigation of both the will and the trust. In Matter of Stralem,it was held that while the following is extremely unlikely to ever occur, it does present a scenario where a legal fee adjustment would be mandated. For example, if A died leaving a testamentary estate of $100,000 and bequeathed $75,000 to B but also exercised a power of appointment over the remainder of a trust of over $100 million in favor of C where the default beneficiary was D, one can imagine a very costly probate contest brought by D and defended by C, the nominated executor. It is also not hard to imagine legal expenses far exceeding $100,000. The question is where the will contest to be settled between C and D, would it be appropriate to wipe out the estate in legal fees and thus extinguish B's bequest of $75,000? The court finds that the answer would clearly be that it would be inappropriate.

Based on the foregoing, the court holds that the assets of the F Revocable Trust U/A dated 24 October 2003 may be used as a source of funds to pay the fee of the guardian ad litem.

In Matter of Stortecky v Mazzone and Matter of Vitole, Matter of Phelan, it was held that the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of the administration of an estate. This remains true even in the event that the parties have consented to the requested fee akin to Matter of Stortecky v Mazzone and Matter of Phelan.
In Matter Of Brehm and Matter of Wilhelm, the court notes that while there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority with reason, proper discretion and not arbitrarily.

In evaluating the cost of legal services, the court may consider a number of factors. These include: the time spent akin to Matter of Kelly; the complexity of the questions involved akin to Matter of Coughlin; the nature of the services provided akin to Matter of Von Hofe; the amount and complexity of litigation required akin to Matter of Sabatino; the amounts involved and the benefit resulting from the execution of such services aki to Matter of Shalman; the lawyer's experience and reputation akin to Matter of Brehm; and, the customary fee charged by the Bar for similar services akin to Matter of Freeman and Matter of Potts.

In discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements set forth in Matter of Potts, Matter of Freeman and Matter of Berkman.

Morerover, the legal fee must bear a reasonable relationship to the size of the estate and to the interest of the ward of the guardian ad litem as in Matter of McCranor, Matter of Kauffman, Matter of Phipps and Matter of Ault. Further, it is well-settled that time spent is, in fact, the least important factor considered by a court in fixing reasonable compensation akin to Matter of Snell, Matter of Potts, and Matter of Kentana.

Under SCPA 405, the guardian ad litem is entitled to a fee for his or her services rendered. These factors apply equally to an attorney retained by a fiduciary or to the court-appointed guardian ad litem as was also held in Matter of Graham, Matter of Burk, Matter of Ault, Matter of Berkman, Matter of Burnett and Matter of Reisman. Moreover, the nature of the role played by the guardian ad litem is an additional consideration in determining his or her fee as held in Matter of Ziegler.

Generally, the fee of a guardian ad litem is an administration expense of an estate and is paid from estate assets but Matter of Stralem is an exception. However, a party may be charged with payment of the compensation of a guardian ad litem where the actions of such party generated unnecessary, unfounded, or purely self-serving litigation that resulted in the appointment of a guardian in accordance with SCPA 405 and based on the ruling in Matter of Ault.

The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services similar to the rulings in Matter of Potts and Matter of Spatt. Contemporaneous records of legal time spent on estate matters are important to the court in the determining whether the amount of time spent was reasonable for the various tasks performed as was also held in Matter of Phelan, Matter of Von Hofe. In the absence of contemporaneous time records, little weight is given to estimates of time after the services have been performed as ruled in Matter of Phelan. This applies to the fee of a guardian ad litem as was held in Matter of Carbone.

Therefore, the court approves the fee of the guardian ad litem in the amount requested, $2,828.00 and orders that it will be paid from the trust assets within (30) days of the date of this decision.
Bronx County Probate Lawyers, Bronx County Last Will and Testament Lawyers and Stephen Bilkis & Associates will gladly discuss with you the issues and pertinent laws mentioned in the case above. Should you wish to seek our advice, please feel free to call our toll free numbers or visit our office nearest you. A team of experts are waiting.

Court Determines Fees for Guardian ad Litem can be Paid with Trust Assets

September 1, 2014,

A New York Probate Lawyer said this is a proceeding submitted for decision wherein the issue is the source of payment for fees awarded to a guardian ad litem. In this probate proceeding, the will "pours over" into an inter vivos trust. The court is tasked to decide whether trust assets can be used to pay all or part of the fee under SCPA 405(1).

The court finds that the fee may be paid from trust assets.

Queens Probate Attorneys said that on 24 January 2006, F died a resident of Nassau County. On 24 October 2003, he had created the "F Revocable Trust U/A dated 24 October 2003." At that time, F also executed his will, the instrument that is offered for probate. Both instruments were drafted by the decedent's long-time attorney who also supervised the execution of both documents. As is customary with estate plans of this sort, the bulk of the decedent's assets were transferred to the trust while he was alive. As a result, the will was designed to be a "catch all" so that any stray assets left in the decedent's estate would be captured and distributed in accord with the terms of the trust. The probate petition reflects a probate estate of less than $10,000.00 while the trust holds assets close to $1,000,000.00.

A New York Estate Lawyer said the guardian ad litem, who was appointed to represent the interests of the decedent's daughter, examined the circumstances surrounding the execution of both the trust and the will. In her affidavit of services the guardian ad litem stated that she spent 7.2 hours on the matter, representing a charge of $2,828.00 for services rendered.

It should be noted that SCPA 405(1) governs the compensation of a guardian ad litem. It provides that said fee may be "payable from any or all of the following, in such proportion as directed by the court: a) the estate; b) the interest of the person under disability; or, c) for good cause shown, any other party."

While SCPA 405 generally contemplates the fee of the guardian ad litem in a probate proceeding will be paid out of estate assets or the ward's share of the probate estate, the circumstances before the court justify a different result.

A Nassau County Probate Lawyer said that in a probate proceeding that involves a will that pours over into a pre-existing inter vivos trust, that trust is a party to the probate proceeding either via its trustees or its beneficiaries and either as a cited or noticed party. The responsibilities of the guardian ad litem included a review and investigation of both the will and the trust. In Matter of Stralem,it was held that while the following is extremely unlikely to ever occur, it does present a scenario where a legal fee adjustment would be mandated. For example, if A died leaving a testamentary estate of $100,000 and bequeathed $75,000 to B but also exercised a power of appointment over the remainder of a trust of over $100 million in favor of C where the default beneficiary was D, one can imagine a very costly probate contest brought by D and defended by C, the nominated executor. It is also not hard to imagine legal expenses far exceeding $100,000. The question is where the will contest to be settled between C and D, would it be appropriate to wipe out the estate in legal fees and thus extinguish B's bequest of $75,000? The court finds that the answer would clearly be that it would be inappropriate.
Based on the foregoing, the court holds that the assets of the F Revocable Trust U/A dated 24 October 2003 may be used as a source of funds to pay the fee of the guardian ad litem.

A Staten Island Probate Lawyer said in Matter of Stortecky v Mazzone and Matter of Vitole, Matter of Phelan, it was held that the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of the administration of an estate. This remains true even in the event that the parties have consented to the requested fee akin to Matter of Stortecky v Mazzone and Matter of Phelan.

In Matter Of Brehm and Matter of Wilhelm, the court notes that while there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority with reason, proper discretion and not arbitrarily.

In evaluating the cost of legal services, the court may consider a number of factors. These include: the time spent akin to Matter of Kelly; the complexity of the questions involved akin to Matter of Coughlin; the nature of the services provided akin to Matter of Von Hofe; the amount and complexity of litigation required akin to Matter of Sabatino; the amounts involved and the benefit resulting from the execution of such services aki to Matter of Shalman; the lawyer's experience and reputation akin to Matter of Brehm; and, the customary fee charged by the Bar for similar services akin to Matter of Freeman and Matter of Potts.

In discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements set forth in Matter of Potts, Matter of Freeman and Matter of Berkman.

Morerover, the legal fee must bear a reasonable relationship to the size of the estate and to the interest of the ward of the guardian ad litem as in Matter of McCranor, Matter of Kauffman, Matter of Phipps and Matter of Ault. Further, it is well-settled that time spent is, in fact, the least important factor considered by a court in fixing reasonable compensation akin to Matter of Snell, Matter of Potts, and Matter of Kentana.

Under SCPA 405, the guardian ad litem is entitled to a fee for his or her services rendered. These factors apply equally to an attorney retained by a fiduciary or to the court-appointed guardian ad litem as was also held in Matter of Graham, Matter of Burk, Matter of Ault, Matter of Berkman, Matter of Burnett and Matter of Reisman. Moreover, the nature of the role played by the guardian ad litem is an additional consideration in determining his or her fee as held in Matter of Ziegler.

Generally, the fee of a guardian ad litem is an administration expense of an estate and is paid from estate assets but Matter of Stralem is an exception. However, a party may be charged with payment of the compensation of a guardian ad litem where the actions of such party generated unnecessary, unfounded, or purely self-serving litigation that resulted in the appointment of a guardian in accordance with SCPA 405 and based on the ruling in Matter of Ault.

The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services similar to the rulings in Matter of Potts and Matter of Spatt. Contemporaneous records of legal time spent on estate matters are important to the court in the determining whether the amount of time spent was reasonable for the various tasks performed as was also held in Matter of Phelan, Matter of Von Hofe. In the absence of contemporaneous time records, little weight is given to estimates of time after the services have been performed as ruled in Matter of Phelan. This applies to the fee of a guardian ad litem as was held in Matter of Carbone.
Therefore, the court approves the fee of the guardian ad litem in the amount requested, $2,828.00 and orders that it will be paid from the trust assets within (30) days of the date of this decision.

Bronx County Probate Lawyers, Bronx County Last Will and Testament Lawyers and Stephen Bilkis & Associates will gladly discuss with you the issues and pertinent laws mentioned in the case above. Should you wish to seek our advice, please feel free to call our toll free numbers or visit our office nearest you. A team of experts are waiting.

Court Determines Proper Amount for Attorney's Fees

August 31, 2014,

A New York Probate Lawyer said this is a proceeding submitted for decision wherein the issue is the source of payment for fees awarded to a guardian ad litem. In this probate proceeding, the will "pours over" into an inter vivos trust. The court is tasked to decide whether trust assets can be used to pay all or part of the fee under SCPA 405(1).

The court finds that the fee may be paid from trust assets.

On 24 January 2006, F died a resident of Nassau County. On 24 October 2003, he had created the "F Revocable Trust U/A dated 24 October 2003." At that time, F also executed his will, the instrument that is offered for probate. Both instruments were drafted by the decedent's long-time attorney who also supervised the execution of both documents. As is customary with estate plans of this sort, the bulk of the decedent's assets were transferred to the trust while he was alive. As a result, the will was designed to be a "catch all" so that any stray assets left in the decedent's estate would be captured and distributed in accord with the terms of the trust. The probate petition reflects a probate estate of less than $10,000.00 while the trust holds assets close to $1,000,000.00.

A New York Estate Lawyer said that the guardian ad litem, who was appointed to represent the interests of the decedent's daughter, examined the circumstances surrounding the execution of both the trust and the will. In her affidavit of services the guardian ad litem stated that she spent 7.2 hours on the matter, representing a charge of $2,828.00 for services rendered.

Queens Probate Lawyers said that it should be noted that SCPA 405(1) governs the compensation of a guardian ad litem. It provides that said fee may be "payable from any or all of the following, in such proportion as directed by the court: a) the estate; b) the interest of the person under disability; or, c) for good cause shown, any other party."

Long Island Probate Lawyers said that while SCPA 405 generally contemplates the fee of the guardian ad litem in a probate proceeding will be paid out of estate assets or the ward's share of the probate estate, the circumstances before the court justify a different result.

In a probate proceeding that involves a will that pours over into a pre-existing inter vivos trust, that trust is a party to the probate proceeding either via its trustees or its beneficiaries and either as a cited or noticed party. The responsibilities of the guardian ad litem included a review and investigation of both the will and the trust. In Matter of Stralem,it was held that while the following is extremely unlikely to ever occur, it does present a scenario where a legal fee adjustment would be mandated. For example, if A died leaving a testamentary estate of $100,000 and bequeathed $75,000 to B but also exercised a power of appointment over the remainder of a trust of over $100 million in favor of C where the default beneficiary was D, one can imagine a very costly probate contest brought by D and defended by C, the nominated executor. It is also not hard to imagine legal expenses far exceeding $100,000. The question is where the will contest to be settled between C and D, would it be appropriate to wipe out the estate in legal fees and thus extinguish B's bequest of $75,000? The court finds that the answer would clearly be that it would be inappropriate.

Based on the foregoing, the court holds that the assets of the F Revocable Trust U/A dated 24 October 2003 may be used as a source of funds to pay the fee of the guardian ad litem.

In Matter of Stortecky v Mazzone and Matter of Vitole, Matter of Phelan, it was held that the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of the administration of an estate. This remains true even in the event that the parties have consented to the requested fee akin to Matter of Stortecky v Mazzone and Matter of Phelan.

In Matter Of Brehm and Matter of Wilhelm, the court notes that while there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority with reason, proper discretion and not arbitrarily.

In evaluating the cost of legal services, the court may consider a number of factors. These include: the time spent akin to Matter of Kelly; the complexity of the questions involved akin to Matter of Coughlin; the nature of the services provided akin to Matter of Von Hofe; the amount and complexity of litigation required akin to Matter of Sabatino; the amounts involved and the benefit resulting from the execution of such services aki to Matter of Shalman; the lawyer's experience and reputation akin to Matter of Brehm; and, the customary fee charged by the Bar for similar services akin to Matter of Freeman and Matter of Potts.

In discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements set forth in Matter of Potts, Matter of Freeman and Matter of Berkman.

Morerover, the legal fee must bear a reasonable relationship to the size of the estate and to the interest of the ward of the guardian ad litem as in Matter of McCranor, Matter of Kauffman, Matter of Phipps and Matter of Ault. Further, it is well-settled that time spent is, in fact, the least important factor considered by a court in fixing reasonable compensation akin to Matter of Snell, Matter of Potts, and Matter of Kentana.

Under SCPA 405, the guardian ad litem is entitled to a fee for his or her services rendered. These factors apply equally to an attorney retained by a fiduciary or to the court-appointed guardian ad litem as was also held in Matter of Graham, Matter of Burk, Matter of Ault, Matter of Berkman, Matter of Burnett and Matter of Reisman. Moreover, the nature of the role played by the guardian ad litem is an additional consideration in determining his or her fee as held in Matter of Ziegler.

Generally, the fee of a guardian ad litem is an administration expense of an estate and is paid from estate assets but Matter of Stralem is an exception. However, a party may be charged with payment of the compensation of a guardian ad litem where the actions of such party generated unnecessary, unfounded, or purely self-serving litigation that resulted in the appointment of a guardian in accordance with SCPA 405 and based on the ruling in Matter of Ault.

The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services similar to the rulings in Matter of Potts and Matter of Spatt. Contemporaneous records of legal time spent on estate matters are important to the court in the determining whether the amount of time spent was reasonable for the various tasks performed as was also held in Matter of Phelan, Matter of Von Hofe. In the absence of contemporaneous time records, little weight is given to estimates of time after the services have been performed as ruled in Matter of Phelan. This applies to the fee of a guardian ad litem as was held in Matter of Carbone.
Therefore, the court approves the fee of the guardian ad litem in the amount requested, $2,828.00 and orders that it will be paid from the trust assets within (30) days of the date of this decision.

Bronx County Probate Lawyers, Bronx County Last Will and Testament Lawyers and Stephen Bilkis & Associates will gladly discuss with you the issues and pertinent laws mentioned in the case above. Should you wish to seek our advice, please feel free to call our toll free numbers or visit our office nearest you. A team of experts are waiting.

Issue in this Case is Whether Estate Venue is Proper

August 28, 2014,

A New York Probate Lawyer said that, this proceeding requires consideration of SCPA 205 (L 1984, ch 128, effective June 21, 1984) which substituted the flexible and waivable concept of venue for the inflexible and non-waivable concept of subject matter jurisdiction in all proceedings brought in the Surrogates' Courts of the state. As a result of this new statute, each Surrogate's Court in every county now has statewide subject matter jurisdiction subject only to the consideration of venue. An issue of the proper venue has been raised in this proceeding.

A New York Estate Lawyer said that, for many years before her death, decedent resided in New York County. On June 21, 1984, she was admitted to Montclair Nursing Home in Nassau County, where she died seven months later on January 31, 1985. The issue of venue arises because proceedings have been commenced in both the Surrogate's Court of Nassau County and the Surrogate's Court of New York County. On July 26, 1985, an instrument dated September 18, 1981 was offered for probate in Nassau County. Four days later, on July 30, 1985, decedent's sole distributees (two nieces) petitioned for letters of administration in this court. Needless to say, these petitioners contend that the instrument propounded in Nassau County is invalid. The basis for their contention is not relevant to this decision.

The issue in this case is whether the venue of the estate proceeding is proper.

Bronx Probate Lawyers said that prior to 1984, this court would have been confronted with a problem of subject matter jurisdiction. The then governing statute, SCPA 206, entitled "Exclusive jurisdiction" governed jurisdiction of the estates of both domiciliaries and non-domiciliaries of this state. Under subdivision 1 of SCPA 206, the Surrogate's Court of each county had exclusive subject matter jurisdiction of the estates of its own domiciliaries. Thus, if a proceeding was brought in the Surrogate's Court of County A and the decedent had been a domiciliary of County B, the court of County A could never acquire subject matter jurisdiction. Its decree was consequently always subject to collateral attack. Even before the decree was signed, the Surrogate of County A could not transfer the proceeding to County B. A new proceeding would have to be commenced ab initio in County B which sometimes resulted in drastic consequences.

The problem was brought to the attention of the Law Revision Commission and the 1984 amendments are the result of its recommendations. As noted, the new statute substituted the concept of venue for the previous concept of subject matter jurisdiction. The new legislation also rearranged the applicable statutes so that SCPA 205 now governs the venue of the estates of New York domiciliaries; SCPA 206 governs the venue of the estates of non-domiciliaries of New York and SCPA 207 governs the venue of inter vivos trusts.

SCPA 205 now provides in relevant part that: "1. The surrogate's court of any county has jurisdiction over the estate of a decedent who was a domiciliary of the state at the time of his death, disappearance or internment. The proper venue for proceedings relating to such estates is the county of the decedent's domicile at the time of his death; 2. A surrogate shall transfer any proceeding to the surrogate's court of the proper county either on his own motion or on the motion of any party."

Thus, since June 21, 1984, any Surrogate's Court in the state has jurisdiction of the estate of every domiciliary of the state. However, venue lies with the Surrogate's Court of the county of the decedent's domicile. Since domicile is a waivable and non-jurisdictional concept, if a court mistakenly, without objection, exercises jurisdiction over the estate of a domiciliary of another county, its decree is not vulnerable to direct or collateral attack for lack of subject matter jurisdiction. The court is advised however under subdivision 2 of SCPA 205 to transfer, on its own motion or upon motion of a party, the proceeding to the county of decedent's domicile if it is apparent to the court that venue lies in another county or when such an issue is raised by a party.

In the proceeding before this court, decedent was concededly a domiciliary of this state. The Surrogate's Court of New York County thus has subject matter jurisdiction of her estate. Venue lies however in the county in which she was domiciled at the time of her death. Under the new SCPA 205, this court has both the right to hold a hearing to determine domicile and the statutory right to transfer the pending proceeding to Nassau County if it is established that decedent was domiciled there.
However, under the same statute, the Surrogate of Nassau County also has subject matter jurisdiction and the right to hold a hearing to determine venue. The question is which court shall hold such hearing.

The various new statutes do not address this problem. This also was true of the prior statutes. Several decisions nonetheless held that orderly administration dictated that such jurisdictional disputes should be determined by the court in which a proceeding concerning decedent's estate was first commenced.

This approach was consistent with former section 205 of the SCPA which provided that: "Jurisdiction once duly exercised over any estate or matter by the court excludes the subsequent exercise of jurisdiction by another surrogate's court over the same estate or matter. All further proceedings in the same estate or matter in a surrogate's court must be taken in the same court."

This provision however was repealed in 1984 and its language was not continued in any of the new statutes. Although subdivision 2 of the current SCPA 205 directs that a surrogate "shall transfer any proceeding to the Surrogate's Court of the proper county", as observed earlier, it leaves unresolved the question of which court is to hold the hearing to determine which county is the "proper county".
Under such circumstances, this court will follow the procedure established in the past. The hearing to determine decedent's domicile shall be held before the Surrogate of Nassau County, the court where a proceeding was first commenced. Upon his order, the court determined to have proper venue shall retain jurisdiction and the matter pending in the Surrogate's Court of the other county shall be transferred to it. All proceedings in New York County are stayed pending the decision by Surrogate Radigan of Nassau County.

If you are involved in a similar case, seek the help of a Nassau Probate Attorney and Nassau Estate Administration Attorney at Stephen Bilkis and Associates.

Court Decides if Attorney Fees Should be Granted

August 27, 2014,

A New York Probate Lawyer said that, before the court is the first and final account of the Public Administrator for the estate of the decedent, who died intestate, a resident of Hempstead, on June 21, 1993, leaving one daughter, surviving. Limited letters of administration were issued to the Public Administrator on September 10, 1998 and modified on January 11, 2007 to enable the Public Administrator to collect the surplus money resulting from a foreclosure sale of decedent's real property.

A Nassau Estate Litigation Lawyer said that, the account filed by the Public Administrator shows the receipt of $17,670.16 of estate principal, which was supplemented by income collected totaling $208.50. This resulted in total charges of $17,878.66. This amount was reduced by administrative expenses through September 30, 2009 in the amount of $2,946.75, leaving a balance of $14,931.91 on hand. The Public Administrator seeks approval of the accounting, approval of commissions, the fixing of fees for the services of the attorney and accountant, and authorization to distribute the net estate to the Nassau County Department of Social Services in full satisfaction of its claim in the amount of $177,020.06 against the decedent's estate. In addition, the court must release the administrator from the surety bond.

A New York Will Lawyer said the issue in this case is whether the attorney’s fee should be granted by the court.
Regarding the fee of the attorney for the estate, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority "with reason, proper discretion and not arbitrarily".

A Westchester County Probate Lawyer said in evaluating the cost of legal services, the court may consider a number of factors. These include: the time spent; the complexity of the questions involved; the nature of the services provided; the amount of litigation required; the amounts involved and the benefit resulting from the execution of such services; the lawyer's experience and reputation; and the customary fee charged by the Bar for similar services. In discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements set forth in Matter of Potts, and as re-enunciated in Matter of Freeman. Also, the legal fee must bear a reasonable relationship to the size of the estate. A sizeable estate permits adequate compensation, but nothing beyond that. Moreover, the size of the estate can operate as a limitation on the fees payable, without constituting an adverse reflection on the services provided. The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services.
The Public Administrator has petitioned the court for approval of the payment of $2,798.75 to the attorney for the Public Administrator in connection with the administration of the estate. This amount has been paid in full. The court has carefully reviewed the affirmation of services and the time records submitted to the court. Contemporaneous records of legal time spent on estate matters are important to the court in determining whether the amount of time spent was reasonable for the various tasks performed. The record shows that the attorney devoted more than 51 hours to this matter through August 2009. The services provided by the attorney included preparing and filing a petition for removal of limitations on letters of administration and accompanying affidavits; commencing a surplus money proceeding in Nassau County Supreme Court; participating in multiple telephone conferences with a foreclosure referee; collecting surplus funds from the Nassau County Treasurer; and reviewing information concerning the identity and whereabouts of decedent's distributees. In addition, the attorney for the Public Administrator prepared the final account and the accompanying documentation. In view of the exiguous balance that would remain if the attorney were to bill for the full amount of services provided, which would amount to $8,971.25, the attorney has offered to accept as a total fee the amount paid to date, $2,798.75. The court commends the attorney for his skillful representation of the Public Administrator and for voluntarily reducing his fee by $6,172.50, a reduction of 69%. The fee is approved in the amount requested.

Suffolk County Probate Lawyers said the court has also been asked to review the accountant's fees. Typically, an accountant's services are not compensable from estate assets unless there exist unusual circumstances that require the expertise of an accountant. The fee for such services is generally held to be included in the fee of the attorney for the fiduciary. The purpose of this rule is to avoid duplication. "Where the legal fees do not include compensation for services rendered by the accountant, there is no duplication and the legal fee is not automatically reduced by the accounting fee".
The accountant has submitted an affidavit of services requesting a fee of $575.00 for preparation of the estate's final return. The work to be performed by the accountant is not duplicative of the services rendered by the estate attorney, and the requested amount for these services is reasonable. The court approves the fee in the amount $575.00, all of which remains unpaid.

The commission of the administrator is approved subject to audit. The decree shall discharge the surety and shall authorize the Public Administrator to distribute the balance of the net estate to the Nassau County Department of Social Services.

If you have issues regarding the accounting fees of the estate, seek the help of a Nassau Estate Attorney and Nassau Probate Attorney at Stephen Bilkis and Associates.

The Issue in this Case is Whether the Venue is Proper

August 26, 2014,

A New York Probate Lawyer said that, this proceeding requires consideration of SCPA 205 (L 1984, ch 128, effective June 21, 1984) which substituted the flexible and waivable concept of venue for the inflexible and non-waivable concept of subject matter jurisdiction in all proceedings brought in the Surrogates' Courts of the state. As a result of this new statute, each Surrogate's Court in every county now has statewide subject matter jurisdiction subject only to the consideration of venue. An issue of the proper venue has been raised in this proceeding.

A New York Estate Lawyer said that, for many years before her death, decedent resided in New York County. On June 21, 1984, she was admitted to Montclair Nursing Home in Nassau County, where she died seven months later on January 31, 1985. The issue of venue arises because proceedings have been commenced in both the Surrogate's Court of Nassau County and the Surrogate's Court of New York County. On July 26, 1985, an instrument dated September 18, 1981 was offered for probate in Nassau County. Four days later, on July 30, 1985, decedent's sole distributees (two nieces) petitioned for letters of administration in this court. Needless to say, these petitioners contend that the instrument propounded in Nassau County is invalid. The basis for their contention is not relevant to this decision.

The issue in this case is whether the venue of the estate proceeding is proper.

A Nassau County Probate Lawyer said that prior to 1984, this court would have been confronted with a problem of subject matter jurisdiction. The then governing statute, SCPA 206, entitled "Exclusive jurisdiction" governed jurisdiction of the estates of both domiciliaries and non-domiciliaries of this state. Under subdivision 1 of SCPA 206, the Surrogate's Court of each county had exclusive subject matter jurisdiction of the estates of its own domiciliaries. Thus, if a proceeding was brought in the Surrogate's Court of County A and the decedent had been a domiciliary of County B, the court of County A could never acquire subject matter jurisdiction. Its decree was consequently always subject to collateral attack. Even before the decree was signed, the Surrogate of County A could not transfer the proceeding to County B. A new proceeding would have to be commenced ab initio in County B which sometimes resulted in drastic consequences.

The problem was brought to the attention of the Law Revision Commission and the 1984 amendments are the result of its recommendations. As noted, the new statute substituted the concept of venue for the previous concept of subject matter jurisdiction. The new legislation also rearranged the applicable statutes so that SCPA 205 now governs the venue of the estates of New York domiciliaries; SCPA 206 governs the venue of the estates of non-domiciliaries of New York and SCPA 207 governs the venue of inter vivos trusts.

SCPA 205 now provides in relevant part that: "1. The surrogate's court of any county has jurisdiction over the estate of a decedent who was a domiciliary of the state at the time of his death, disappearance or internment. The proper venue for proceedings relating to such estates is the county of the decedent's domicile at the time of his death; 2. A surrogate shall transfer any proceeding to the surrogate's court of the proper county either on his own motion or on the motion of any party."

Thus, since June 21, 1984, any Surrogate's Court in the state has jurisdiction of the estate of every domiciliary of the state. However, venue lies with the Surrogate's Court of the county of the decedent's domicile. Since domicile is a waivable and non-jurisdictional concept, if a court mistakenly, without objection, exercises jurisdiction over the estate of a domiciliary of another county, its decree is not vulnerable to direct or collateral attack for lack of subject matter jurisdiction. The court is advised however under subdivision 2 of SCPA 205 to transfer, on its own motion or upon motion of a party, the proceeding to the county of decedent's domicile if it is apparent to the court that venue lies in another county or when such an issue is raised by a party.

In the proceeding before this court, decedent was concededly a domiciliary of this state. The Surrogate's Court of New York County thus has subject matter jurisdiction of her estate. Venue lies however in the county in which she was domiciled at the time of her death. Under the new SCPA 205, this court has both the right to hold a hearing to determine domicile and the statutory right to transfer the pending proceeding to Nassau County if it is established that decedent was domiciled there.
However, under the same statute, the Surrogate of Nassau County also has subject matter jurisdiction and the right to hold a hearing to determine venue. The question is which court shall hold such hearing.

The various new statutes do not address this problem. This also was true of the prior statutes. Several decisions nonetheless held that orderly administration dictated that such jurisdictional disputes should be determined by the court in which a proceeding concerning decedent's estate was first commenced.

This approach was consistent with former section 205 of the SCPA which provided that: "Jurisdiction once duly exercised over any estate or matter by the court excludes the subsequent exercise of jurisdiction by another surrogate's court over the same estate or matter. All further proceedings in the same estate or matter in a surrogate's court must be taken in the same court."

This provision however was repealed in 1984 and its language was not continued in any of the new statutes. Although subdivision 2 of the current SCPA 205 directs that a surrogate "shall transfer any proceeding to the Surrogate's Court of the proper county", as observed earlier, it leaves unresolved the question of which court is to hold the hearing to determine which county is the "proper county".
Under such circumstances, this court will follow the procedure established in the past. The hearing to determine decedent's domicile shall be held before the Surrogate of Nassau County, the court where a proceeding was first commenced. Upon his order, the court determined to have proper venue shall retain jurisdiction and the matter pending in the Surrogate's Court of the other county shall be transferred to it. All proceedings in New York County are stayed pending the decision by Surrogate Radigan of Nassau County.

If you are involved in a similar case, seek the help of a Nassau Probate Attorney and Nassau Estate Administration Attorney at Stephen Bilkis and Associates.

Court Decides Whether it Should Grant Settlement of Account

August 24, 2014,

A New York Probate Lawyer said that, before the court is the first and final account of the ancillary executor of the estate of the decedent. The court is asked to approve: (i) attorney's fees; (ii) commissions; (iii) reimbursement of expenses; and (iv) the settlement of the account. The decedent, died on May 3, 2004, leaving a will dated February 13, 2001. At the time of her death, the decedent was domiciled in Florida. Ancillary letters testamentary issued to the executor on July 18, 2005. The accounting covers the period May 3, 2004 to April 21, 2009. An amended accounting covering the period May 3, 2004 to December 22, 2009 was filed on February 5, 2010. The amended accounting shows principal charges to the accounting party of $829,804.35.

A Nassau Estate Lawyer said that, objections to the accounting and the amended accounting were filed by a $10,000.00 legatee and the beneficiary of fifty percent (50%) of the residuary estate. The ancillary executor is the beneficiary of the other fifty percent (50%) share of the residuary estate. By instrument dated December 2, 2010, he withdrew his objections to both the first account and the amended account.

The issue in this case is whether the court should grant the settlement of the account.

Long Island Probate Lawyers said with respect to the issue of attorneys' fees, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority "with reason, proper discretion and not arbitrarily".

Queens Probate Lawyers said in evaluating the cost of legal services, the court may consider a number of factors. These include: the time spent; the complexity of the questions involved; the nature of the services provided; the amount of litigation required; the amounts involved and the benefit resulting from the execution of such services; the lawyer's experience and reputation; and the customary fee charged by the Bar for similar services. In discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements set forth in Matter of. Also, the legal fee must bear a reasonable relationship to the size of the estate. Moreover, the size of the estate can operate as a limitation on the fees payable, without constituting an adverse reflection on the services provided.
The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services. Contemporaneous records of legal time spent on estate matters are important to the court in determining whether the amount of time spent was reasonable for the various tasks performed.

With respect to disbursements, the tradition in Surrogate's Court practice is that the attorney may not be reimbursed for expenses that the court normally considers to be part of overhead, such as photocopying, postage, telephone calls, and other items of the same matter. The court prohibited reimbursement for ordinary postage and telephone charges other than long distance.
The attorney has submitted an affirmation of legal services, without contemporaneous time records. According to the attorney's affirmation, he spent 171.1 hours on this matter at the hourly rate of $275.00 per hour for a total fee of $47,052.56, $25,435.00 of which has been paid and $22,117.00 of which remains unpaid. The attorney also charged a $500.00 flat fee to handle and supervise the delivery and inspection of oil paintings. The attorney also seeks $45.00 for expenses, but has not provided any detail as to the nature of the expenses.

It has consistently been held that the court has the discretion to review the reasonableness of an attorney's fee on an accounting whether or not anyone objects to the fee Here, the services performed by counsel as recited in his affirmation include time spent on the preparation of his affirmation of legal services. Time spent by counsel supporting his fee is not compensable. In addition, the time spent on some services appears excessive. For example, counsel claims to have spent in excess of twenty-three hours preparing Federal and New York State estate tax returns. The affirmation includes generalized descriptions of services such as 17.8 hours on "meetings concerning renunciation by residuary beneficiary and primary Executrix-client and estate beneficiaries meetings, correspondence, telephone calls." In addition, counsel charged for work done in connection with the Florida probate proceeding which is duplicative of the work performed by Florida counsel. Counsel also billed for attending an open house for the Bayville property and communicating with the alarm company, both of which are executorial in nature and not compensable. It is a general rule that an attorney will not be allowed legal fees for performing executorial services. Accordingly, for the above reasons, the court fixes the fee of counsel in the amount of $35,000.00. The request for $45.00 in expenses is disallowed since counsel has failed to identify the nature of the expense.

The accounting also includes a request for reimbursement to the ancillary executor for expenses and mileage for trips to the Bayville property in an amount in excess of $3,000.00 (12/30/2006-"estate expense reimbursement" $1,290.50; 04/18/2005-"estate expense reimbursement, mileage for trips to Bayville to maintain and sell house and other administration matters" $1,032.00; 12/31/2005-"estate expense reimbursement, mileage for trips to Bayville to maintain and sell house and other administration matters" $1,035.66). The court notes that the objectant was represented by counsel and voluntarily withdrew his objections to these expenses.

Nevertheless, the court declines to approve these expenses, which appear excessive and for which no supporting documentation is provided. It also appears from Schedule C of the account that the ancillary executor took an advance payment of commissions in the amount of $12,594.50 without prior court approval. The objections filed sought the denial of commissions to the ancillary executor in their entirety for mismanagement of the estate and did not include a specific objection to the advance payment.

Commissions are not ordinarily payable until the entry of a decree settling a fiduciary's account. Taking a commission prior to the settlement of an account without securing court approval pursuant to SCPA 2310 or SCPA 2311 exposes the fiduciary to the danger of being surcharged. Usually the court allows the commissions but surcharges the fiduciary the amount of interest the estate lost because of payment, most commonly the statutory interest rate under CPLR 5004, from the date the unauthorized commissions were taken until the entry of the decree settling the account.

There is some division between the Surrogates on the issue of whether there must be an interest surcharge on the advance payment of commissions even where all of the beneficiaries consent to approval of the advance in a nunc pro tunc order. An intermediate position was taken by then Surrogate Prudenti who held that a fiduciary's violation of SCPA 2310 and 2311 cannot be condoned and will ordinarily result in surcharge for the unauthorized payment at the legal rate of interest in order to protect the rule and deter advances without court orders, but such advances can be excused in certain extraordinary circumstances.

This court has generally taken the position that the taking of advance commissions without prior court approval is grounds for "automatic surcharge at the statutory rate of interest of 9%". Considering all the circumstances in this case and the above principles, the court surcharges the ancillary executor 9% statutory interest on the amount paid of $12,594.50 from the date taken of January 3, 2006 until the date of the decree. The surcharge shall be charged against the balance of the commissions due the ancillary executor.

Accordingly, the court held that in all other respects, the accounting is approved. A proposed decree has been submitted to the court and will be signed if found to be in proper form. This is the decision and order of the court.

If you have issues regarding the accounting of your estate, seek the assistance of a Nassau Estate Attorney and Nassau Estate Administration Attorney at Stephen Bilkis and Associates.


Court Decides Case Regarding Constructive Trust

August 23, 2014,

A New York Probate Lawyer said this action to vacate a deed or impress a constructive trust was originally initiated by a man, and was transferred to another court by order. The man, as the estate administrator, requests for a decision without proceeding. A woman however cross moved the motion for a declaration that the transfer was a valid gift.

The estate came from their mother who died leaving a last will which was admitted to probate. Letters testamentary was then issued to the estate administrator. In addition to the two parties, the deceased woman was survived by three other children.

A New York Estate Lawyer said that prior to entering an assisted living facility, the deceased woman resided at her own residences. Later, the deceased woman purportedly transferred her interest in the premises to her daughter and reserved a life estate.

The man as estate administrator then requested a decision without trial on the grounds that the transfer was revocable due to her sister's retention of a limited power of appointment and, therefore, an invalid gift.

A Staten Island Probate Lawyer said that as a result, the man claims that the premises should be an asset of the deceased woman's assets and divided among the deceased woman's five children equally.
The woman’s daughter cross moved the motion for an order denying it and instead declaring that the transfer was a valid gift. She alleges that her mother intended to make a gift of the premises to her to compensate her for losses she had suffered in connection with a failed business venture by her brothers. Her brothers entered into a business venture previously. The start-up funds for that venture were obtained from mortgages taken on two properties owned by the deceased woman. One of the properties was the premises and the other was commercial property.

Nassau County Probate Lawyers said at some point, the business venture failed and the business was closed. The mortgages on the two properties were still outstanding, and foreclosure proceedings were commenced against the deceased woman and the five children as the owners of the property.
At that time, the deceased woman was living in an assisted living facility outside the presence of her daughter. Subsequently, the deceased woman executed the deed.

A lawyer then submitted an affidavit and asserted that the deceased woman expressed concern about the costs of her ongoing medical care to him. The woman also stated that she was concerned about protecting her assets, particularly, the premises. He further stated that he explained that one option was to make a gift of the premises while retaining a life estate. The deceased woman advised the said lawyer that she wanted to gift the premises to her daughter.

At the time the deed was executed, the lawyer again explained the consequences of the transaction and the deceased woman acknowledged that she understood. The special power of appointment language was used by the lawyer as a means of avoiding the payment of gift tax when the deed was recorded.

The other son of the deceased woman has submitted an affidavit wherein he states that it was his understanding that his mother wanted his sister to have the premises to compensate for the financial losses she suffered because of her brothers' failed business venture.

Based on records, a request for decision without trial is often termed a drastic remedy, used carefully as it is the procedural equivalent of a trial, and should not be granted if there is any doubt as to the existence of a triable issue of fact. Further, the moving party must make a showing of entitlement to summary relief as a matter of law, producing sufficient evidence in admissible form to demonstrate the absence of any material issue of fact.

Moreover, to establish a gift, the donee must establish donative intent, delivery and acceptance by clear and convincing evidence. A donor may make a valid gift of property with the right of enjoyment postponed until after death, as long as her intention is to presently transfer an enforceable interest in that property to the donee.

By its terms the deed conveys the premises to her daughter retaining a life estate with a limited power of appointment of the remainder in the deceased woman in favor of her children. The man maintains that since the transfer was revocable by virtue of the limited power of appointment, the transfer does not constitute a valid gift. The court however disagrees.

Based on records, the man incorrectly concludes that if a transfer is an incomplete gift for gift tax purposes, it does not constitute a valid gift. The primary element of a completed gift for gift tax purpose is the abandonment of dominion and control over the property. A completed gift does not occur if the grantor retains a power of appointment because he has the right to change beneficial enjoyment.

Sources revealed that as to any property, or part thereof or interest therein, of which the donor has so parted with dominion and control as to leave in him no power to change its disposition, whether for his own benefit or for the benefit of another, the gift is complete. But if upon a transfer of property the donor reserves any power over its disposition, the gift may be wholly incomplete, or may be partially complete and partially incomplete, depending upon all the facts in the particular case.

As a result, in every case of a transfer of property subject to a reserved power, the terms of the power must be examined and its scope determined.

The estate administrator confuses the issue of whether a transfer is a valid gift under state law with the issue of whether a transfer is a complete gift for federal gift tax purposes. For that reason, the request for the decision without trial is denied. The transfer does not constitute an invalid gift.
Concerning the cross-motion, the woman daughter's testimony although admissible to defeat the motion where it would be otherwise barred by the law, is inadmissible in support of her cross-motion.
The estate administrator however opposes the cross-motion for the request on the basis that his sister had a confidential relationship with the deceased woman as her attorney-in-fact under a durable power of attorney which requires her to establish by clear and convincing evidence that the transfer was free of coercion or undue influence. He further claims that the woman has failed to meet her heightened burden of proof. Where the parties to a gift transaction are close family members, the existence of a confidential relationship is a question of fact. Even assuming a confidential relationship between the deceased woman and her daughter, her daughter has met her heightened burden that the transfer was free from any undue influence.

Based on records, the affidavit of the attorney clearly demonstrates that the execution of the deed was not subject to the exertion of any undue influence. Moreover, the testimony shows that the deceased woman clearly intended to transfer the premises to her daughter. With the attorney's affidavit coupled with the recording of the deed and the presumption of delivery arising there from, the daughter established her entitlement for the decision. Since the estate administrator has failed to raise any issue of fact as to the deceased woman's capacity, the court ordered to grant the cross-motion.

When you want to execute a last will, you can seek legal guidance from the Nassau County Estate Lawyer or Nassau County Estate Administration Attorney. On the other hand, if you are the one who wanted to probate someone’s last will, you can seek assistance from the Nassau County Probate Lawyer at Stephen Bilkis and Associates.

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August 22, 2014,

This is a probate matter which comes on by motion of petitioner following the suspension of a hearing pursuant to SCPA 1404 held at the law office of respondent's attorney by agreement of the parties.

A New York Probate lawyer said that Petitioner requests three substantive orders related to the examination of witnesses before resuming the hearing: (1) to continue the hearing at the County Courthouse under the supervision of the Surrogate or other designee; (2) permission to question witnesses regarding events prior to the three-year period before the date the propounded instrument was executed; (3) that the witness and the attorney who drafted the decedent's last three wills, fully produce all of his files relating to the three wills, the last of which is the propounded will, including files dated prior to the three-year period from the date the propounded instrument was executed.

Petitioner alleges that the decedent, who died on August 31, 2003, had made three wills, all with different or differing provisions as to the disbursement of his estate.

A Suffolk County Probate Lawyer said the propounded will is dated November 7, 2002. Allegedly, there are also prior wills dated August 22, 2001 and September 16, 1999. The time span between the propounded will and the oldest will is 3 years and 52 days. That is, just 52 days beyond the three and two rule.

In all three wills, the decedent acknowledged, and made bequeaths to, his three daughters by a previous marriage. In two of the three wills, the decedent stated he was married to the petitioner. In two of the three wills, he acknowledges having a son with petitioner, his current wife, but denies having any children with petitioner* in one of the three wills. All three wills have provisions regarding decedent's estate that differ in size of the shares or listing different objects of his bounty including his declarations of paternity which are patently inconsistent.

A Westchester County Probate Lawyer said that SCPA 1404 examinations, witnesses must be produced before the court, said examinations shall be held at the courthouse, but may be supervised by the Surrogate or his designee. Petitioner's second request, for permission to question witnesses prior to the three-year period from the date the propounded instrument was executed, and the third request, for discovery of documents relative to the same time period, pursuant to special circumstances, requires a more probing analysis since there is a scarcity of Surrogate's Court decisions on these issues.

At first review, it would seem that whether special circumstances exist herein, is the issue for this court's determination. However, before deciding whether special circumstances exist herein, this court must first determine if it applies to a SCPA 1404 examination.

There are a number of cases where various surrogates apply the section 207.27 three- and two-year time limitation to SCPA 1404 examinations without explanation. One Surrogate has held, after analysis, that the three- and two-year time limitation of section 207.27 applies to SCPA 1404 examinations and document production whether the examination is held prior to objections or after objections have been filed.

"In any contested probate proceeding in which objections to probate are made and the proponent or the objectant seeks an examination before trial, the items upon which the examination will be held shall be determined by the application of article 31 of CPLR. Except upon the showing of special circumstances, the examination will be confined to a three-year period prior to the date of the propounded instrument and two years thereafter, or to the date of decedent's death, whichever is the shorter period."

The legal community commonly refers to an examination before trial as an EBT. It is a discovery device under article 31 of CPLR, which is applicable to most civil cases and to both SCPA 1404 examinations and section 207.27.

However, CPLR article 31 provides that the discovery device commonly called an EBT is, in actuality, a deposition upon oral questions. Thus, any argument that section 207.27 only applies to the legal community shorthand EBT is misplaced. Since the term EBT is a misnomer, the words "examination before trial" in section 207.27 actually refer to an examination before a trial of any kind, civil or Surrogate.

However, even though section 207.27 does apply to any examination before a trial generically, it only applies in SCPA 1404 examinations when there is a "contested probate proceeding in which objections to probate are made."

The court finds that the section 207.27 rule only applies after a party has filed a formal objection to a probate proceeding; it does not apply prior to objections. And, once a party has filed a formal objection, the rule limits discovery in examinations before trial to three years prior and two years beyond the creation date of the propounded instrument or the decedent's death, whichever is shorter. Since section 207.27 limits a litigant's right to discovery, it must be narrowly construed.

The court finds that petitioner has shown special circumstances herein as required by section 207.27, applicable to SCPA 1404 examinations and document discovery since objections were formally filed with the Surrogate's Court prior to notice for examinations under SCPA 1404.

Based upon the above, it is ordered that the SCPA 1404 examination shall resume at the Sullivan County Courthouse before the Surrogate or his designee at a date to be agreed upon by all parties and the court, and it is further ordered that petitioner may examine the SCPA 1404 witnesses on any relevant matters which may form the basis for objections and which may have occurred more than three years prior to the date of the propounded will, and it is further ordered that witness and will draftsman, shall produce his entire files regarding the wills of decedent dated November 7, 2002, August 22, 2001 and September 16, 1999, and any other documents or items related to his representation of the decedent in other legal matters.

Here in Stephen Bilkis and Associates, our Bronx County Estate attorneys will assist you in drafting your last will and testament which is in accordance with law. We will make it sure that your estate will be distributed legally. You can also consult our Bronx County Probate lawyers who, on the other hand, will assist you in making the provisions in the last will and testatment effective.

Petitioner Brings Motion Regarding Suspension of Hearing Under SCPA 1404

August 21, 2014,

This is a probate matter which comes on by motion of petitioner following the suspension of a hearing pursuant to SCPA 1404 held at the law office of respondent's attorney by agreement of the parties.

A New York Probate Lawyers said that Petitioner requests three substantive orders related to the examination of witnesses before resuming the hearing: (1) to continue the hearing at the County Courthouse under the supervision of the Surrogate or other designee; (2) permission to question witnesses regarding events prior to the three-year period before the date the propounded instrument was executed; (3) that the witness and the attorney who drafted the decedent's last three wills, fully produce all of his files relating to the three wills, the last of which is the propounded will, including files dated prior to the three-year period from the date the propounded instrument was executed.
Petitioner alleges that the decedent, who died on August 31, 2003, had made three wills, all with different or differing provisions as to the disbursement of his estate.

The propounded will is dated November 7, 2002. Allegedly, there are also prior wills dated August 22, 2001 and September 16, 1999. The time span between the propounded will and the oldest will is 3 years and 52 days. That is, just 52 days beyond the three and two rule.

In all three wills, the decedent acknowledged, and made bequeaths to, his three daughters by a previous marriage. In two of the three wills, the decedent stated he was married to the petitioner. In two of the three wills, he acknowledges having a son with petitioner, his current wife, but denies having any children with petitioner* in one of the three wills. All three wills have provisions regarding decedent's estate that differ in size of the shares or listing different objects of his bounty including his declarations of paternity which are patently inconsistent.

New York City Probate Lawyers said in SCPA 1404 examinations, witnesses must be produced before the court, said examinations shall be held at the courthouse, but may be supervised by the Surrogate or his designee. Petitioner's second request, for permission to question witnesses prior to the three-year period from the date the propounded instrument was executed, and the third request, for discovery of documents relative to the same time period, pursuant to special circumstances, requires a more probing analysis since there is a scarcity of Surrogate's Court decisions on these issues.
At first review, it would seem that whether special circumstances exist herein, is the issue for this court's determination. However, before deciding whether special circumstances exist herein, this court must first determine if it applies to a SCPA 1404 examination.

Manhattan Probate Lawyers said there are a number of cases where various surrogates apply the section 207.27 three- and two-year time limitation to SCPA 1404 examinations without explanation. One Surrogate has held, after analysis, that the three- and two-year time limitation of section 207.27 applies to SCPA 1404 examinations and document production whether the examination is held prior to objections or after objections have been filed.

"In any contested probate proceeding in which objections to probate are made and the proponent or the objectant seeks an examination before trial, the items upon which the examination will be held shall be determined by the application of article 31 of CPLR. Except upon the showing of special circumstances, the examination will be confined to a three-year period prior to the date of the propounded instrument and two years thereafter, or to the date of decedent's death, whichever is the shorter period."

The legal community commonly refers to an examination before trial as an EBT. It is a discovery device under article 31 of CPLR, which is applicable to most civil cases and to both SCPA 1404 examinations and section 207.27.

However, CPLR article 31 provides that the discovery device commonly called an EBT is, in actuality, a deposition upon oral questions. Thus, any argument that section 207.27 only applies to the legal community shorthand EBT is misplaced. Since the term EBT is a misnomer, the words "examination before trial" in section 207.27 actually refer to an examination before a trial of any kind, civil or Surrogate.

However, even though section 207.27 does apply to any examination before a trial generically, it only applies in SCPA 1404 examinations when there is a "contested probate proceeding in which objections to probate are made."

The court finds that the section 207.27 rule only applies after a party has filed a formal objection to a probate proceeding; it does not apply prior to objections. And, once a party has filed a formal objection, the rule limits discovery in examinations before trial to three years prior and two years beyond the creation date of the propounded instrument or the decedent's death, whichever is shorter. Since section 207.27 limits a litigant's right to discovery, it must be narrowly construed.

The court finds that petitioner has shown special circumstances herein as required by section 207.27, applicable to SCPA 1404 examinations and document discovery since objections were formally filed with the Surrogate's Court prior to notice for examinations under SCPA 1404.
Based upon the above, it is ordered that the SCPA 1404 examination shall resume at the Sullivan County Courthouse before the Surrogate or his designee at a date to be agreed upon by all parties and the court, and it is further ordered that petitioner may examine the SCPA 1404 witnesses on any relevant matters which may form the basis for objections and which may have occurred more than three years prior to the date of the propounded will, and it is further ordered that witness and will draftsman, shall produce his entire files regarding the wills of decedent dated November 7, 2002, August 22, 2001 and September 16, 1999, and any other documents or items related to his representation of the decedent in other legal matters.

Here in Stephen Bilkis and Associates, our Bronx County Estate attorneys will assist you in drafting your last will and testament which is in accordance with law. We will make it sure that your estate will be distributed legally. You can also consult our Bronx County Probate lawyers who, on the other hand, will assist you in making the provisions in the last will and testatment effective.