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.

Court Decides Case Regarding Letters Testamentary

August 20, 2014,

This is a probate proceeding in which objections have been filed to the granting of letters testamentary to an attorney who is the executor named in the decedent's will.

A New York Probate Lawyer said that Decedent died in July 1970, leaving a will which gave her entire estate to her husband and named the proponent as executor. The husband having predeceased the testatrix, the propounded paper will have no effect as a testamentary instrument to dispose of decedent's estate and accordingly, her property which consists primarily of a two-family house will pass as in intestacy. The distributees of the testatrix are two brothers and a sister who are residents of Italy and a nephew and niece residing in New York who are children of a predeceased sister.
It is alleged that a day or two after the death of the decedent, the executor named in decedent's will received from decedent's step-son who had been residing with decedent, papers and documents relative to the affairs of the decedent including the deed to premises, and a paper writing purported to be decedent's last will and testament. After a passage of time in which efforts were made by the nephew and niece to ascertain without success whether there was in fact a will, the nephew and niece filed a petition in this court for letters of administration. Thereafter, letters of administration were granted to the nephew and niece.

A New York Estate Lawyer said that the discovery proceeding was commenced against the decedent's step-son and the attorney who is now the proponent herein to discover the decedent's personal property allegedly withheld by the respondents. In July 1971, during the course of the hearing in the discovery proceeding, it was disclosed that the attorney was in possession of decedent's will wherein he was the named executor and was then directed to file the will and move for its probate. This he has now done and the nephew and niece joined by the Consul General of Italy at New York have filed objections to the issuance of letters testamentary to the proponent upon the grounds that: (a) he is incompetent to execute the duties of such office by reason of improvidence; (b) he does not possess the degree of responsibility required of a fiduciary.

Westchester County Probate Lawyers said at the hearing before the court, a witness who had been a tenant in decedent's real property at for a number of years testified that he house had been in excellent condition when she moved out about three weeks after decedent's death. Another witness who is employed as a maintenance man by the Board of Education of the City of New York and who was related to the deceased by marriage testified in the same vein as to the condition of the house shortly before decedent's death.

Suffolk County Probate Lawyers said the witness further testified that when he examined the premises in the spring of 1971, which was about seven or eight months after decedent's death, he observed that the ceilings in almost all of the rooms on the ground floor of the house had fallen down, that there were signs of water damage at the ceilings where the tile and plaster had fallen, that the walls were water-stained and damaged, that the plumbing was not working, that the floors had been so severely damaged by water that they would have to be replaced and that the tiles on the floors had come loose. He further testified that there was no heat in the building and the water damage was caused by the bursting of frozen pipes and that there appeared to be considerable damage to the electrical wires in the walls on the ground floor and to the entire electrical system.

The court is mindful of the rule that a nominated executor cannot lightly be denied letters testamentary. The prerogative of the testator to appoint a person in whom he has confidence to administer his estate cannot be arbitrarily usurped by the court.

As pointed out, one of the primary obligations of a fiduciary is that he preserves the estate assets. This may require a variety of acts of varying degrees of complexity, obviousness and immediacy and failure on the part of a fiduciary to take appropriate action when he should have acted to preserve the estate assets may constitute waste justifying his removal. Since the court has the duty to revoke the letters of a executor who has wasted the assets of the estate or has otherwise improvidently managed or injured the property committed to his charge, such conduct should in the first instance be sufficient justification for the court to deny to a nominated executor the right to assume a fiduciary role.

The court has carefully considered the situation which is here presented and concludes that the nominated executor has exhibited such indifference, inertia and utter disregard for his obligations to this estate that issuance of letters testamentary to him must be refused. Accordingly, the will shall be admitted to probate, letters of administration heretofore issued to the objectants shall be revoked, the issuance of letters testamentary to the nominated executor will be denied and letters c.t.a. herein will issue to the objectants upon due application and qualification therefor.

It is a sad reality that when a person died, the heirs are saddened by the fact of his death and oftentimes the properties left are the very issues of the heirs. Here in Stephen Bilkis and Associates, we have Bronx County Estate attorneys who will help these disputing heirs to settle their differences. In case a decedent died with a will, our Bronx County Probate lawyers will help you bring the last will and testament for its probate.

The Issue in this Case is Whether Attorneys Fees Should be Granted

July 23, 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 New York Will 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.

Westchester County Probate Lawyers said the issue in this case is whether the attorney’s fee should be granted by the court.

Suffolk County Probate Lawyers said that 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".

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.

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.

Court Decides a Case Regarding Kinship Issues

July 10, 2014,

A New York Probate Lawyer said this is a case of accounting of the Public Administrator, where the issue of kinship was referred to a court attorney/referee pursuant to SCPA 506. All parties stipulated to waive the report of the referee and to allow kinship issues to be decided by the court based upon the transcripts of the hearing, the documentary evidence, and the arguments made by the attorneys for the claimants and the guardian ad litem representing the interests of unknown distributees.

A New York Will Lawyer said that the decedent died intestate, a resident of Nassau County, in May 2006. Letters of administration issued to the Public Administrator in January 2007. The account filed by the Public Administrator shows the receipt of $354,397.29 of estate assets. There are three alleged maternal cousins of the decedent and seven alleged paternal first cousins of the decedent.

Long Island Probate Lawyers said that in order to establish their rights as distributees, claimants in a kinship proceeding must prove: (1) their relationship to the decedent; (2) the absence of any person with a closer degree of consanguinity to the decedent; and (3) the number of persons having the same degree of consanguinity to the decedent or to the common ancestor through which they take. Claimants who allege to be distributees of the decedent have the burden of proof on each of these elements. The quantum of proof required to prove kinship is a fair preponderance of the credible evidence.

Brooklyn Probate Lawyers said the record reflects a diligent and exhaustive search was rendered to discover evidence of other possible distributees. As three years have elapsed since the decedent's death, the known heirs are entitled to the benefit of the presumption of SCPA 2225. Therefore, based upon the evidence before the court, it is held that the decedent is survived by ten (10) distributees, three maternal first cousins, and seven paternal first cousins.
Pursuant to EPTL 4-1.1(a)(6), one-half of the decedent's property passes to the issue of paternal grandparents, by representation, and one-half to the issue of maternal grandparents, by representation.

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.
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. 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.

These factors apply equally to an attorney retained by a fiduciary or to a court-appointed guardian ad litem. Moreover, the nature of the role played by the guardian ad litem is an additional consideration in determining his or her fee.

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 discussed the allowance of charges for photocopies, telephone calls, postage, messengers and couriers, express deliveries and computer-assisted legal research.

The court concluded that it would permit reimbursement for such disbursements only if they involved payment to an outside supplier of goods and services, adopting the standards set forth in previous case. The court prohibited reimbursement for ordinary postage and telephone charges other than long distance.

With respect to accountants' fees, normally, an accountant's services are not compensable out of 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. "[T]he 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.

Considering all of the factors used to determine the reasonableness of fees, the court fixes the fee of counsel for the Public Administrator in the amount of $22,407.50, all of which has been paid, as fair and reasonable compensation for services rendered.

Concerning the accountant's fee, the accountant has submitted an affidavit of services requesting a fee of $4,125.00, of which $2,975.00 has been paid and $1,150.00 remains unpaid. The affidavit indicates that the accountant prepared the decedent's personal income tax return returns and fiduciary income tax returns for the estate through 2010. The work performed by the accountant was not duplicative of the services rendered by the estate attorney and the requested amount of these services is reasonable. Thus, the court approves the fee in the amount of $4,125.00, of which $1,150.00 remains unpaid.

The guardian ad litem has supplied the court with an affidavit of services, and it shows that he rendered approximately 23.20 hours of legal services. The guardian ad item reviewed the account, the petition and family trees. The guardian ad litem requested additional documentary evidence and received and reviewed such documents. He attended the kinship hearing on two separate dates and prepared his report. Considering all of these factors, the court believes the sum of $6,000.00 is fair and proper compensation for the services rendered by the guardian ad litem.

Here in Stephen Bilkis and Associates, our Nassau County Estate attorneys will help you draft your last will and testament so that when the time that there will be no difficulty when the said document will be presented for probate. We also have Nassau County Probate lawyers, who will represent your executor before the courts when a probate petition was already filed.

Court Determines Legal Fees in Probate Case

July 9, 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.
The issue in this case is whether the attorney’s fee should be granted by the court.

A New York Will Lawyer said 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".

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.

Westchester County Probate Lawyers said 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.

Heirs Bring Action Because they were Left Out of Mother's Will

June 22, 2014,

A New York Probate Lawyer said a woman died survived by one sister and thirteen descendants of pre-deceased siblings. The deceased woman’s nephew, the Executor filed a Verified Petition to Probate a Last Will and Testament, dated April 17, 1996 in which he was the nominated Executor and in which he and his two siblings were named as the sole residuary beneficiaries. The Executor was granted Preliminary Letters Testamentary on October 29, 2009. Included in his Petition for Probate was an assertion by the decedent’s Executor that, after a diligent search and inquiry there exists no will, codicil or other testamentary instrument of the decedent later in date. The Petition also listed only the decedent's one surviving sibling, and the Petitioner and his two sisters, omitting ten of the decedent's distributees, all cousins of the Executor.

A New York Will Lawyer said the decedent's one surviving sister and the ten distributees left out of the Petition for Probate, six nieces and nephews and four great-nieces and nephews of the decedent (Objectants), jointly retained their counsel and conducted an investigation that ultimately determined that the April 17, 1996 will probated by the Executor was not the decedent's Last Will and Testament. Evidence was adduced that the decedent had executed a Last Will and Testament on July 11, 2000 and subsequently intentionally destroyed it. As the July 11, 2000 will revoked all prior wills of the decedent, its destruction would, in the absence of a subsequent will, result in the decedent's property passing pursuant to the laws of intestacy and the Executor not being named as executor. Accordingly, on December 1, 2009, the Objectants filed a Verified Answer to the Executor's Petition for Probate and Objections to the Probate of the April 17, 1996 Will.

Manhattan Probate Lawyers said the Executor did not concede to the validity of the July 11, 2000 will, and estate litigation commenced. The Objectants' counsel secured affidavits from the draftsman of the later will, the attorney who oversaw its later destruction, and witnesses to the will's execution and destruction. These parties were then deposed by the Executor's counsel to ascertain if the decedent was mentally competent, under undue influence, duress, or if her actions were the product of fraud. No evidence of a lack of testamentary capacity was adduced at the five depositions conducted by the Executor's counsel. However, the Executor continued to challenge the validity of the later will and claim that the decedent lacked testamentary capacity at its execution, causing a subpoena duces tecum to be issued seeking the decedent's medical records.

Bronx Probate Lawyers said on August 12, 2010, after over a year of estate litigation regarding the validity of the July 11, 2000 will, when it became apparent that the Objectants were about to file an Estate Administration petition, the Executor suddenly located and filed a third will of the decedent, dated October 20, 2005. This will named the nephew as Executor and divided the residuary into two shares, twenty percent to be divided among various charities, and the remaining eighty percent is to be distributed in various shares to ten family members, excluding only four distributees, great-nieces and great-nephews of the decedent. While the Executor had vehemently doubted the decedent's capacity to execute a will in 2000, he did not raise issues of the decedent's competence at the execution of the 2005 will. The October 20, 2005 will was admitted to Probate on November 24, 2010, and the Executor was issued full Letters Testamentary.

On November 5, 2010, the instant proceeding was commenced when the Objectants’ counsel filed a Petition to Fix and Determine Compensation, requesting fees in the amount of $24,853.61 and disbursements in the amount of $1,721.39 to be paid from the Estate of the decedent, alleging that if not for their efforts, the invalid April 17, 1996 will would have been admitted to probate, unjustly enriching the Executor and his siblings to the detriment of the rightful beneficiaries. The fee requested reflects over 175 hours of attorney and paralegal time incurred since August, 2009.

On January 7, 2011, Verified Objections to the Petition were filed by the Attorney General of the State of New York on behalf of the ultimate charitable beneficiaries under the October 20, 2005 will. The Attorney General alleges that the Objectants acted primarily in their own interest, that their actions did not enlarge the Estate itself, and that they cannot take credit for finding the will admitted to Probate. The Attorney General also proposes that if the Objectants' legal fees should be borne by anyone, it is the Executor, due to his malfeasance. While the Attorney General does not represent the Objectants, and in any case, they do not object to the Petition for legal fees, the Attorney General also raises the argument that to pay the legal fees out of the Estate would result in the potentially unjust result of only the four non-legatee Objectants, great-nieces and nephews, being made whole, while the legacies of the seven legatee Objectants would be diminished.

In response to both the Petition and the Objections, the Executor and his counsel filed Affidavits on January 18, 2011. In his Affidavit, the Executor does not claim to have lacked knowledge regarding the existence of his ten cousins upon the filing of his petition for probate, but denies any wrongdoing, claiming that he was right to question the July 11, 2000 will, as it was sketchy, contained misspellings, and was allegedly prepared by an attorney whose office was more than fifty miles from the decedent's home. Additionally, the Executor claims that a copy of the October 20, 2005 will was not among the decedent's papers, and it was only after an exhaustive review of her records that he found a checkbook ledger notation for a check paid to another counsel. When contacted, the counsel disclosed that he had drafted and kept the October 20, 2005 will in his files after providing the decedent with a copy for her records. The Executor's Affidavit reiterates these same claims, and argues that if legal fees are to be awarded from the Estate, the fees should be paid at the hourly rate agreed upon by the Executor and his counsel - less than the hourly rate charged by the Objectants’ counsel.
For reasons further detailed below, the Court finds that adequate evidence was presented by the Objectants' counsel to justify the amount of fees sought. Further, due to the circumstances surrounding the delayed discovery of the proper will, these fees shall be paid in equal shares by the Estate and the Executor personally.

After a review of the affirmation of services included within the Petition, and taking note of the discount already granted the Objectants by their counsel, the Court declines to decrease the fees requested.

Surrogate's Court Procedure Act (SCPA) authorizes the Surrogate to, fix and determine the compensation of an attorney for services rendered to a fiduciary or to a devisee, legatee, distributee or any person interested, and to direct payment of the fees, from the estate generally or from the funds in the hands of the fiduciary belonging to any person interested. Further, SCPA places it within the Court's discretion to provide that costs be made payable by any party personally. The Attorney General relies heavily on a similar case to argue that the discretion granted the Court by SCPA to grant the attorneys' fees is limited solely to those instances in which the fees were not incurred primarily for the benefit of a client, and resulted in a greater distribution than might have otherwise been expected. While that is one circumstance under which attorneys' fees may be granted, and importantly, the situation confronted by the court is not exclusive, nor was it contemplated to be so.

The work of the attorneys to whom fees are granted must benefit the estate, but that benefit is not limited solely to a monetary increase in the estate value. For example, establishing the kinship of distributees of the decedent has been considered a benefit to the estate entitling legal fees to be paid from the estate.

Based on the circumstances, the Court has no choice but to find the ninth hour discovery of the decedent's final Will by the Executor to be suspicious. An entire year of estate litigation preceded that discovery, during which the Executor made numerous claims that the decedent lacked testamentary capacity, even attempting to obtain medical records to support that claim. However, a will drafted more than five years later, when the decedent was 89 years old raised no such issues with the Executor. The Executor's self-serving actions raised justifiable doubt in the eyes of the Objectants, and they acted to the benefit of the Estate as a whole.

As for the portion of interest in the Estate held by the non-objecting beneficiaries’ relative to the objecting beneficiaries; under the final Will, all of the decedent's legatee family members are entitled to between five and sixteen percent of the residuary. The Executor and his siblings, the only non-objecting beneficiaries, are each entitled to approximately five percent of the residuary, the same amount as three of the objecting beneficiaries.

While the Objectants acted in apparent good faith, with justification, and to the benefit of the Estate as a whole, the Estate should not bear the entire burden of the lengthy estate litigation. The courts have, in numerous instances, held a fiduciary liable for the attorney's fees and other expenses incurred by the estate in exposing his misconduct. The Surrogate's Court is empowered to charge an administrator personally for legal expenses incurred in establishing the latter's wrongdoing.

As the Objectants' actions were required due to the Executor's inability to timely produce the proper will of the decedent, and his voracious opposition to a will that entitled him to a lesser share of the Estate, he should be personally responsible for the costs of that estate litigation. It is unascertainable what portion of the accrued legal fees are attributable to the location of the proper will and what portion are attributable to the frivolous estate litigation, so in the interests of equity, the fee shall be split in equal shares among the Estate as a whole and the Executor personally.

Further, the Executor must be removed as Executor and shall forfeit any commissions due him for services rendered to the Estate thus far. Therefore, in accordance with the above decision it is hereby ordered and adjudged and decreed that the attorneys' fees, costs and expenses in the amount of $13,287.50 be paid by the Estate to the Objectants’ counsel within thirty days, said funds to be immediately used to reimburse the legal fees, costs and expenses previously paid to the Objectants’ counsel for representation in this matter. The attorneys' fees, costs and expenses in the amount of $13,287.50 to be paid by the Executor to the Objectants’ counsel within thirty days, said funds to be immediately used to reimburse the legal fees, costs and expenses previously paid to the Objectants’ counsel for representation in this matter. The Letters Testamentary Issued by the Court to the Executor is revoked and he shall forfeit receipt of commissions.

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