court Decides if Will Should be Held Invalid Due to Statute of Limitations

September 18, 2014,

A New York Probate Lawyer said that, this is a proceeding to vacate a decree of probate and to allow the petitioners to withdraw the waivers of process, consents to probate they executed on May 17, 1999. The petitioners are the decedent's four adult children, the executor of the estate, opposes requested relief. Respondent is the decedent's surviving spouse; he and the decedent were married in November 1991. The husband is not the father of the petitioners.

A New York Estate Lawyer said that, on February 20, 2008, the court issued a decision and order wherein the court granted the petitioners' counsel's unopposed motion to withdraw as the petitioners' counsel and stayed the proceedings for 30 days after a copy of the order was served by overnight delivery on the petitioners. A copy of the order was served as directed, and the period of the stay has expired. The petition to vacate the decree granting probate and for other relief has now been submitted for decision.

A Bronx Estate Administration Lawyer said that, the decedent died on December 5, 1998 at the age of 57. Her last will and testament dated March 11, 1995 was admitted to probate by decree dated July 29, 1999, and letters testamentary were issued to the husband. The affidavit of subscribing witnesses annexed to the will states that the will was executed under the supervision of an attorney. The decedent left her entire estate to her husband. In the event that the husband had predeceased the decedent, the decedent bequeathed the estate to the petitioners, per stirpes.

A Queens Probate Lawyer said that, the petitioners have now filed a petition to vacate the decree of probate dated July 29, 1999, permitting the withdrawal of the consents, and allowing petitioners to file objections to probate. In support of the petition, they allege that (1) the husband told them they had to sign the waivers and consents in order to refinance the decedent's real property or it would be lost; (2) the executors were not provided with a copy of the will prior to signing the waivers and consents, and they believed that the decedent had died without a will; (3) they were not represented by an attorney when they executed the waivers and consents; (4) they did not sign the waivers in the presence of the notary, an attorney, whose stamp is affixed to the document; (5) One son did not sign his name on the waiver and consent that is filed with the court, and evidence "suggests" that his signature was forged; (6) he had no notice that the proceeding to probate the will had been commenced; (7) the petitioners did not contest the probate of the will because they were misled by Joseph; (8) Thomas was not given a copy of the will to review until about February 2007, at which time he became certain that he had been misled by the husband to believe the will was genuine when it is actually a forgery; (9) they all have become aware that the will is not genuine and the decedent's signature thereon is forgery; (10) the husband misrepresented the value of the decedent's estate in order to induce the son to sign an agreement dated March 6, 2000, which is discussed below; (11) the witnesses to the will committed fraud when they concealed to the court that the will is not genuine; (12) the notary aided the husband in deceiving the petitioners and the court; (13) as a result of the misrepresentations and concealment of the husband and the witnesses to the will, the petitioners acted to their detriment by reasonably relying on the false information they were given; (14) since the husband, the witnesses to the will and the notary all knew that the will was not genuine and that the decedent's signature on it is a forgery, they intended to deceive the petitioners and the court; and (15) they would not have signed away their right to their inheritance had they known about the existence of a will.

A Long Island Probate Lawyers said that, the petitioners further allege that in or about 2003 the daughter came to this court, saw the will and assumed it to be that of the decedent. Although they had been estranged for a number of years, in 2007, when the petitioners began to communicate with one another, they came to the realization that the husband "may have" committed a fraud against them. They assert that they then compared the decedent's signature on the will with other documents she had signed and concluded that the signatures on the other documents were significantly dissimilar to the one on the will.

The petitioners refer to a two-page document entitled, "Agreement in Settlement," dated March 6, 2000. It contains the acknowledged signatures of the husband and the son. The agreement recites the fact that the agreement is between them, in his capacity as executor, that the decedent had died leaving a will dated March 11, 1995 in which she named the husband as executor, that a probate petition had been filed and the petitioners had executed waivers and consents, that letters testamentary had issued to the husband, that the son had indicated that he wished to rescind his waiver and consent and file objections to the probate of the will and that the parties to the agreement wished to resolve any disputes about the validity of the will. The agreement provides that the son reaffirmed the waiver he signed on May 17, 1999 and waived any and all objections to the probate of the will and that the husband would pay the son $12,000.00 in lieu of any distributive share to which the son might have been entitled. The agreement also contains a provision whereby he released and discharged the husband, individually and as executor of the decedent's estate, and also released the estate, as well as any heirs, executors, administrators, successors and assigns from all causes of action, suits and the like.

The issue in this case is whether the opposition to the probate of the will should be dismissed on the ground that it is barred by a six-year statute of limitations.

The husband asserts that the petition should be dismissed because the claims contained therein are barred by a six-year statute of limitations. However, there is no statute of limitations barring a party from moving to vacate a decree. The Surrogate's Court has the discretion to open decrees at any time in the interest of justice. However, a decree admitting a will to probate will not be disturbed lightly because such a vacatur disrupts the orderly process of administration and creates uncertainty. While SCPA 509 and CPLR 5015 authorize the court to vacate one of its decrees, such vacatur must be based on excusable default, fraud or newly discovered evidence. Further, for the court to vacate a decree, "it must appear that there is a substantial basis for the contest and a reasonable probability of success on the part of the petitioner".

As this court stated in a 2002 case decision, applications to vacate a barred by a six-year statute of limitations waiver and consent are governed the 1971 case decision. In the said case, the Court of Appeals likened a waiver and consent to a stipulation, subject to vacatur upon a showing of good cause, such as fraud, collusion, mistake, accident, or some such similar ground. The Court of Appeals distinguished applications made post-decree from those made pre-decree, presumably because there is a lesser likelihood of prejudice if the will has not yet been admitted to barred by a six-year statute of limitations. The court also noted that a "stricter test" is applied to applications made post-decree.

Although the petitioners allege fraud and forgery, their allegations are conclusory at best and are largely belied by the record. For example, they allege that they were not provided with a copy of the will and did not know of its existence when they signed the waivers and consents, yet the waivers and consents that they signed explicitly state that they consented to the court "admitting to barred by a six-year statute of limitations the decedent's Last Will and Testament dated March 11, 1995, a copy of which testamentary instrument has been received by me. " The petitioners allege that the son signature on the waiver and consent and the decedent's signature on the will are forgeries, yet they have not come forward with a shred of evidence to substantiate these conclusory allegations. As with the rest of their allegations, they have wholly failed to support the allegations that the husabnd, the witnesses to the will and the attorney who notarized the waivers and consents all knew the will was a forgery and deceived the petitioners and the court. Further, many of the son’s factual allegations are belied by the language in the Agreement in Settlement that he executed in 2000. In sum, the court finds that the petitioners have failed to establish a basis for the court to vacate the decree granting probate.

Accordingly, the court held that the petition is dismissed in its entirety.

If you want to contest the will of the decedent because your legitime has been impaired, you will need the expertise of a Bronx Will Contest Attorney and Bronx Estate Administration Attorney at Stephen Bilkis and Associates.

Court Finds Issues with Preprinted Trust

September 17, 2014,

A New York Probate Lawyer said that, this case, and an analogous matter decided on the same day, raise troubling questions about the use of pre-printed or form living trusts, which are now being heavily marketed in New York State. The instant case is especially disturbing, because its trust takes the form of loose pages contained in a three ring binder. The proceeding was initiated by the petitioner" for the probate of the Will of the decedent who died on September 9, 1996. The decedent's Will, executed April 30, 1996, leaves his entire estate to the " Revocable Living Trust dated April 30, 1996 and any amendments thereto." The trust agreement provides for lifetime income and principal payments to the decedent as he directs. Upon the decedent's death the principal remaining is to be distributed to the petitioner, a friend. An alleged amendment leaves 99.75% of the principal balance to the petitioner and .25% to another friend. The decedent is the sole lifetime trustee. The petitioner is either sole personal representative under the Will and sole successor trustee under the trust, or a co-fiduciary in each. A prior Will, dated October 24, 1990, which bequeathed one tenth of one percent of the estate outright to the other friend and the balance to the petitioner, was also filed with the court. The decedent left assets of about $1 million, of which approximately $950,000 had been transferred into the trust and passes according to its terms and $60,000 remained in his name at death and passes according to the provisions of the Will.

A New York Estate Lawyer said that, in reviewing the probate submissions, the court discovered that both the Will and the trust were so ambiguously worded that it was impossible to determine the decedent's wishes regarding one of the most fundamental elements of his estate plan--the nomination of the fiduciary. Further examination of the documents revealed a staggering number of additional ambiguities, inconsistencies, apparent irrelevancies, and outright errors, many of which pose major problems in ascertaining or effectuating the decedent's dispositive intent.

A Nassau County Probate Lawyers said that, at this same time, another construction proceeding involving a form living trust, which contained provisions analogous to those in the document already under review, was brought before the court. The executor of the Will of concerned that the merger of legal and equitable interests in her father's trust might render it ineffective and hence not a proper receptacle for the pour-over of his estate assets, sought a construction permitting all of the property to be disposed of according to the trust's terms. Faced with the Howard request for construction of similar provisions, as well as with the immediate need in the instant case to identify the fiduciary and to ascertain the decedent's intentions regarding other significant provisions of both instruments, this court determined that a construction of the instant Will and trust was necessary at the present time. The Surrogate's Court has the power to construe a Will when construction is necessary to determine questions in a proceeding before it or to make a complete disposition of a matter. Because one major obscurity concerning the ultimate disposition of the probate estate in the instant matter involved minors or unborn as possible takers, a guardian ad litem was appointed.

A Staten Island Probate Lawyer said that, on the return date of the citation for probate and construction of the Will and trust, the decedent's intestate distributees, five nieces and nephews (hereinafter "the respondents"), appeared by counsel. The respondents maintained that the merger of legal and equitable interests rendered the trust ineffective, but they did not challenge the validity of the Will. Additionally, they argued against any construction upholding the pour-over of the estate into the trust or, alternatively, incorporating the trust into the Will by reference. They sought an interpretation of both instruments that would distribute all of the decedent's property to them under the Will but by intestacy. The other friend also appeared but raised no objections. After hearing the oral arguments of the parties and requesting written memoranda, this court reserved decision.

The issue in this case is whether the decedent meant to name the petitioner sole fiduciary under both instruments or to designate him and the co-executors and co-successor trustees has been rendered moot by his renunciation of any right to act as primary fiduciary during the pendency of this proceeding. Because many other such form documents are extant, however, this ambiguous language may be expected to give rise to future proceedings.

The trust agreement in question consists of 42 pages, each page having 3 holes in the left margin, contained in a three-ring looseleaf binder, entitled "Estate Planning Portfolio." The two inch thick binder contains numerous other documents, including a "Certificate of Trust;" various informational pages describing the trust; a copy of the pour-over Will; an "Affidavit of Trust;" a duplicate trust, also signed, but lacking the dispositive sections; a Living Will; a 20-page property power of attorney; a health care power of attorney; and, in a pocket of the binder, an audio tape describing a husband-wife estate plan (although the decedent was unmarried). All pages are easily removable by opening the binder's rings. The April 30 Will is printed on the same orange paper stock as the trust, but its pages are stapled together at the top. All documents prominently bear the copyright of the attorney-draftsman.

The estate planning package containing the living trust and pour-over Will is an example of a product being heavily promoted throughout New York State, in newspaper advertisements and free seminar programs. In many cases, those marketing the documents, attorneys and enterprising laymen alike, have themselves purchased the forms (or a computer program containing them) from an "estate planning institute" headquartered out of state, through a franchise or other arrangement. In some instances, such franchise agreements also afford the marketer "technical assistance" in the use of the various forms. One of the dangers of such a system, which the instant case points up, is that it leads participant franchisees, who may have little if any experience in sophisticated estate and tax planning, to consider themselves competent to "draft" complex instruments and purvey them on a large scale. In the matter before us, as the guardian ad litem reports to the court, such "drafting" appears no more than piecing together various sections from the forms, often in a seemingly feckless, haphazard manner.
Indeed, this Will and trust agreement collectively represent the most egregious example of maladroit "drafting" this court has encountered. More than a dozen problems involving inconsistencies, obscurities, and outright errors have been brought to the court's attention. In her preliminary report, the guardian ad litem has identified and enumerated the most serious of these, which include the difficulty of determining the fiduciary under both instruments; the merger of the trust's legal and beneficial interests and the possible inefficacy of the trust itself; the invalidity of an amendment to the trust, which involved the removal from, and insertion into, the loose-leaf binder of unsigned and unacknowledged pages; the possible failure of the pour-over from the Will to the trust and, concomitantly, of the attempt to incorporate the trust by reference into the Will; and the questionable effect of the attempted exclusion of the respondents from a share in both the estate and trust.

In addition, as the guardian notes, the trust sections describing the disposition of assets upon the settlor's death seem to direct, on the one hand, a further trust and, on the other, outright distribution. Finally, she points out that both instruments are replete with inconsistencies (for instance, Article One, Section 6 of the Will directly follows Section 2, the Will's page numbers do not conform to its table of contents, Article Four of the trust provides for distributions to lineal descendants, of which the Will declares the decedent has none), irrelevancies (Articles Six and Seven of the trust are entirely unnecessary), and outright errors (Article One, Section 6 of the Will references this trust agreement and an Article Twelve not even found in the Will, which contains only five articles; several consecutive pages of the trust have the same page numbers) that cumulatively create confusion and doubt about the decedent's intent and raise concern about possible tampering.

The guardian argues that because the many problematic provisions of both instruments obfuscate the decedent's meaning and frustrate his purpose, assistance from the court is required to ascertain his intention. We agree. We also determine that, for reasons of judicial economy, the construction of questionable sections of both instruments essential to the administration and disposition of the decedent's assets should be undertaken now, at the time of the admission of the Will to probate.

It is well established that in a construction proceeding, a court must ascertain the intent of the testator and that it must glean such intent, "not from a single word or phrase, but from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed". We must first attempt to discern testamentary intent from the four corners of the Will itself, searching for a dominant purpose or plan of distribution and reading and giving effect to individual parts in relation to that purpose. We adhere to the same settled principles in interpreting the trust agreement. And, because of the interrelation of the two documents created by the pour-over, we will view each in conjunction with the other in determining the decedent's dispositive purposes.

The petitioner, respondents, and guardian all urge, however, that, so confused is the articulation of the testator's intention in the two instruments, the court consider extrinsic evidence in the form of the testimony of the attorney-draftsman. We do not agree. In a number of decisions involving draftsmen's errors, we and other courts have warned that to permit a draftsman, perhaps years after the event, to recount a testator's oral expressions of intent is to risk allowing him to rewrite the Will. Moreover, many factors, including the draftsman's imperfect memory, his concern for his professional reputation, or his fear of legal action over perceived errors, may influence his testimony, rendering it of little utility.

The potential dangers are, we feel, particularly acute under the circumstances of the instant case. As the copyrights indicate, the documents before us, but especially the trust agreement, represent standard or generic forms. The provisions of this trust are therefore substantially similar to those of thousands of other such agreements sold to consumers by this and other "draftsmen." As many sections of the instant trust reveal, this draftsman has made little attempt to tailor the form to the particular circumstances of the individual settlor (witness the numerous references to lineal descendants, which this unmarried, childless decedent does not have, as well as the audio tape depicting this as a husband-wife estate plan). A marketer of living trusts, who sells thousands of such "one size fits all" documents annually, may be expected to have only a limited recollection of the circumstances and intentions of each of his customers. And the careless, even reckless, manner with which the provisions of these instruments are pieced together casts serious doubt on the value of any explanation that might be proffered.
Accordingly, we will not entertain any testimony of the draftsman as to the decedent's stated intentions.

The instant case points up numerous problems involving living trusts (in particular, the different standards by which the validity of a pour-over Will and its receptacle trust are evaluated and the widespread use of loose-leaf trusts). Enactment of legislation such as that recently passed in Florida, requiring that trusts be executed with all the formalities of Wills, or the extension to receptacle trusts of the SCPA 1408 provision for independent court scrutiny of the instrument's genuineness would provide essential safeguards for the citizens of this state.

Accordingly, the court held that the merger of the trust's legal and equitable interests in the decedent during his lifetime does not render the petitioner's remainder interest invalid and that assets held in the trust as of date of death pass outright to the petitioner, after the payment of taxes and other expenses; that the disposition of estate assets to the trust pursuant to Article Three, Section 1 of the Will cannot be given effect, since the trust is not a valid receptacle for the pour-over; that the provision under Article Three, Section 2 of the Will for incorporation of the trust's terms by reference into the Will cannot be given effect and that accordingly the estate assets pass under the Will, in the absence of objections to its probate, to the respondents as the decedent's intestate distributees.

Are facing similar scenario? Then call us at Stephen Bilkis and Associates so that our Bronx Probate Attorney and Bronx Estate Attorney can handle your case.

Court Decides if Decedent Meant to Name Petitioner as Sole Fiduciary

September 17, 2014,

A New York Probate Lawyer said that, this case, and an analogous matter decided on the same day, raise troubling questions about the use of pre-printed or form living trusts, which are now being heavily marketed in New York State. The instant case is especially disturbing, because its trust takes the form of loose pages contained in a three ring binder. The proceeding was initiated by the petitioner" for the probate of the Will of the decedent who died on September 9, 1996. The decedent's Will, executed April 30, 1996, leaves his entire estate to the " Revocable Living Trust dated April 30, 1996 and any amendments thereto." The trust agreement provides for lifetime income and principal payments to the decedent as he directs. Upon the decedent's death the principal remaining is to be distributed to the petitioner, a friend. An alleged amendment leaves 99.75% of the principal balance to the petitioner and .25% to another friend. The decedent is the sole lifetime trustee. The petitioner is either sole personal representative under the Will and sole successor trustee under the trust, or a co-fiduciary in each. A prior Will, dated October 24, 1990, which bequeathed one tenth of one percent of the estate outright to the other friend and the balance to the petitioner, was also filed with the court. The decedent left assets of about $1 million, of which approximately $950,000 had been transferred into the trust and passes according to its terms and $60,000 remained in his name at death and passes according to the provisions of the Will.

A New York Estate Lawyer said that, in reviewing the probate submissions, the court discovered that both the Will and the trust were so ambiguously worded that it was impossible to determine the decedent's wishes regarding one of the most fundamental elements of his estate plan--the nomination of the fiduciary. Further examination of the documents revealed a staggering number of additional ambiguities, inconsistencies, apparent irrelevancies, and outright errors, many of which pose major problems in ascertaining or effectuating the decedent's dispositive intent.

A Queens Probate Lawyers said that, at this same time, another construction proceeding involving a form living trust, which contained provisions analogous to those in the document already under review, was brought before the court. The executor of the Will of concerned that the merger of legal and equitable interests in her father's trust might render it ineffective and hence not a proper receptacle for the pour-over of his estate assets, sought a construction permitting all of the property to be disposed of according to the trust's terms. Faced with the Howard request for construction of similar provisions, as well as with the immediate need in the instant case to identify the fiduciary and to ascertain the decedent's intentions regarding other significant provisions of both instruments, this court determined that a construction of the instant Will and trust was necessary at the present time. The Surrogate's Court has the power to construe a Will when construction is necessary to determine questions in a proceeding before it or to make a complete disposition of a matter. Because one major obscurity concerning the ultimate disposition of the probate estate in the instant matter involved minors or unborn as possible takers, a guardian ad litem was appointed.

A Long Island Probate Lawyers said that, on the return date of the citation for probate and construction of the Will and trust, the decedent's intestate distributees, five nieces and nephews (hereinafter "the respondents"), appeared by counsel. The respondents maintained that the merger of legal and equitable interests rendered the trust ineffective, but they did not challenge the validity of the Will. Additionally, they argued against any construction upholding the pour-over of the estate into the trust or, alternatively, incorporating the trust into the Will by reference. They sought an interpretation of both instruments that would distribute all of the decedent's property to them under the Will but by intestacy. The other friend also appeared but raised no objections. After hearing the oral arguments of the parties and requesting written memoranda, this court reserved decision.

The issue in this case is whether the decedent meant to name the petitioner sole fiduciary under both instruments or to designate him and the co-executors and co-successor trustees has been rendered moot by his renunciation of any right to act as primary fiduciary during the pendency of this proceeding. Because many other such form documents are extant, however, this ambiguous language may be expected to give rise to future proceedings.

The trust agreement in question consists of 42 pages, each page having 3 holes in the left margin, contained in a three-ring looseleaf binder, entitled "Estate Planning Portfolio." The two inch thick binder contains numerous other documents, including a "Certificate of Trust;" various informational pages describing the trust; a copy of the pour-over Will; an "Affidavit of Trust;" a duplicate trust, also signed, but lacking the dispositive sections; a Living Will; a 20-page property power of attorney; a health care power of attorney; and, in a pocket of the binder, an audio tape describing a husband-wife estate plan (although the decedent was unmarried). All pages are easily removable by opening the binder's rings. The April 30 Will is printed on the same orange paper stock as the trust, but its pages are stapled together at the top. All documents prominently bear the copyright of the attorney-draftsman.

The estate planning package containing the living trust and pour-over Will is an example of a product being heavily promoted throughout New York State, in newspaper advertisements and free seminar programs. In many cases, those marketing the documents, attorneys and enterprising laymen alike, have themselves purchased the forms (or a computer program containing them) from an "estate planning institute" headquartered out of state, through a franchise or other arrangement. In some instances, such franchise agreements also afford the marketer "technical assistance" in the use of the various forms. One of the dangers of such a system, which the instant case points up, is that it leads participant franchisees, who may have little if any experience in sophisticated estate and tax planning, to consider themselves competent to "draft" complex instruments and purvey them on a large scale. In the matter before us, as the guardian ad litem reports to the court, such "drafting" appears no more than piecing together various sections from the forms, often in a seemingly feckless, haphazard manner.
Indeed, this Will and trust agreement collectively represent the most egregious example of maladroit "drafting" this court has encountered. More than a dozen problems involving inconsistencies, obscurities, and outright errors have been brought to the court's attention. In her preliminary report, the guardian ad litem has identified and enumerated the most serious of these, which include the difficulty of determining the fiduciary under both instruments; the merger of the trust's legal and beneficial interests and the possible inefficacy of the trust itself; the invalidity of an amendment to the trust, which involved the removal from, and insertion into, the loose-leaf binder of unsigned and unacknowledged pages; the possible failure of the pour-over from the Will to the trust and, concomitantly, of the attempt to incorporate the trust by reference into the Will; and the questionable effect of the attempted exclusion of the respondents from a share in both the estate and trust.

In addition, as the guardian notes, the trust sections describing the disposition of assets upon the settlor's death seem to direct, on the one hand, a further trust and, on the other, outright distribution. Finally, she points out that both instruments are replete with inconsistencies (for instance, Article One, Section 6 of the Will directly follows Section 2, the Will's page numbers do not conform to its table of contents, Article Four of the trust provides for distributions to lineal descendants, of which the Will declares the decedent has none), irrelevancies (Articles Six and Seven of the trust are entirely unnecessary), and outright errors (Article One, Section 6 of the Will references this trust agreement and an Article Twelve not even found in the Will, which contains only five articles; several consecutive pages of the trust have the same page numbers) that cumulatively create confusion and doubt about the decedent's intent and raise concern about possible tampering.

The guardian argues that because the many problematic provisions of both instruments obfuscate the decedent's meaning and frustrate his purpose, assistance from the court is required to ascertain his intention. We agree. We also determine that, for reasons of judicial economy, the construction of questionable sections of both instruments essential to the administration and disposition of the decedent's assets should be undertaken now, at the time of the admission of the Will to probate.

It is well established that in a construction proceeding, a court must ascertain the intent of the testator and that it must glean such intent, "not from a single word or phrase, but from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed". We must first attempt to discern testamentary intent from the four corners of the Will itself, searching for a dominant purpose or plan of distribution and reading and giving effect to individual parts in relation to that purpose. We adhere to the same settled principles in interpreting the trust agreement. And, because of the interrelation of the two documents created by the pour-over, we will view each in conjunction with the other in determining the decedent's dispositive purposes.

The petitioner, respondents, and guardian all urge, however, that, so confused is the articulation of the testator's intention in the two instruments, the court consider extrinsic evidence in the form of the testimony of the attorney-draftsman. We do not agree. In a number of decisions involving draftsmen's errors, we and other courts have warned that to permit a draftsman, perhaps years after the event, to recount a testator's oral expressions of intent is to risk allowing him to rewrite the Will. Moreover, many factors, including the draftsman's imperfect memory, his concern for his professional reputation, or his fear of legal action over perceived errors, may influence his testimony, rendering it of little utility.

The potential dangers are, we feel, particularly acute under the circumstances of the instant case. As the copyrights indicate, the documents before us, but especially the trust agreement, represent standard or generic forms. The provisions of this trust are therefore substantially similar to those of thousands of other such agreements sold to consumers by this and other "draftsmen." As many sections of the instant trust reveal, this draftsman has made little attempt to tailor the form to the particular circumstances of the individual settlor (witness the numerous references to lineal descendants, which this unmarried, childless decedent does not have, as well as the audio tape depicting this as a husband-wife estate plan). A marketer of living trusts, who sells thousands of such "one size fits all" documents annually, may be expected to have only a limited recollection of the circumstances and intentions of each of his customers. And the careless, even reckless, manner with which the provisions of these instruments are pieced together casts serious doubt on the value of any explanation that might be proffered.

Accordingly, we will not entertain any testimony of the draftsman as to the decedent's stated intentions.

The instant case points up numerous problems involving living trusts (in particular, the different standards by which the validity of a pour-over Will and its receptacle trust are evaluated and the widespread use of loose-leaf trusts). Enactment of legislation such as that recently passed in Florida, requiring that trusts be executed with all the formalities of Wills, or the extension to receptacle trusts of the SCPA 1408 provision for independent court scrutiny of the instrument's genuineness would provide essential safeguards for the citizens of this state.

Accordingly, the court held that the merger of the trust's legal and equitable interests in the decedent during his lifetime does not render the petitioner's remainder interest invalid and that assets held in the trust as of date of death pass outright to the petitioner, after the payment of taxes and other expenses; that the disposition of estate assets to the trust pursuant to Article Three, Section 1 of the Will cannot be given effect, since the trust is not a valid receptacle for the pour-over; that the provision under Article Three, Section 2 of the Will for incorporation of the trust's terms by reference into the Will cannot be given effect and that accordingly the estate assets pass under the Will, in the absence of objections to its probate, to the respondents as the decedent's intestate distributees.

Are facing similar scenario? Then call us at Stephen Bilkis and Associates so that our Bronx Probate Attorney and Bronx Estate Attorney can handle your case.

Issue in this Case is Whether Deceased had Testamentary Capacity

September 16, 2014,

A New York Probate Lawyers said that, this is an appeal from a decree of the Surrogate of Bronx County, based on a jury verdict, denying probate. Proponent was the attorney for the deceased more than 20 years. The propounded will, dated December 29, 1963, and a prior will, dated November 13, 1950, had been drawn by proponent. The witnesses to the propounded will subscribed the testimonial clause. They were the proponent, his wife, and a neighbor of decedent, presently incapacitated. At the time of the execution of the propounded will, decedent was 81. Prior to December 26, 1963, although with symptoms of rheumatoid arthritis, decedent enjoyed good physical and mental health, had full possession of all his faculties, and was in full and personal charge of all his financial and personal affairs. The family physician, on December 26, 1963, examined decedent, observed symptoms of an upper respiratory infection with low grade temperature, and prescribed an antibiotic and rest. He thereafter treated the deceased daily at his home. On January 1, 1964, there appeared positive symptoms of pneumonia, and he was hospitalized. He died January 2, 1964.

A New York Estate Administration Lawyer said that, the sole beneficiary and named executrix under the propounded will is his widow, now deceased. They had been married 29 years. There are no issue. Decedent's other distributees are two brothers in New York, and a brother, four nieces and a nephew in Italy. Decedent was estranged from one of his New York brothers. Decedent's attorney testified he had several talks with decedent and his wife prior to December, 1963, regarding a new will. The 1950 will passed the residue of the estate to the wife after providing for legacies to a brother in New York and his two children, and a brother in Italy. Decedent instructed the attorney to prepare a will bequeathing his entire estate to his wife. The attorney complied by preparing the propounded will. On December 26, 1963, an appointment was made for the execution of the will at decedent's home on December 29, 1963. It was executed and witnessed at about 4 P.M. on said date.

A Bronx Estate Administration Lawyer said that, the family doctor testified he treated the deceased on December 29, 1963, at 9 A.M., conversed with him, and found him perfectly normal mentally and physically, except for his cold symptoms. The attorney and his wife were with the deceased on said date between 2:30 P.M. and 5 P.M., and conversed with him at length on the contents of the will and their respective families. Their testimony is the decedent was mentally alert, rational and sociable. A neighbor, visited with decedent and his wife on said date between 5:30 P.M. and 8:30 P.M. Contestants' witnesses, were present when she arrived, but departed before her. There was conversation in which decedent participated, and he enjoyed cookies which had been baked and brought by Vera.

Westchester County Probate Lawyers said the issue in this case is whether the deceased had testamentary capacity.

There have been two trials. On the prior appeal, we held there was no evidence of fraud or undue influence, and 'the testamentary dispositions were in no way remarkable as contrary to the normal disposition to the natural objects of the testator's bounty. On the question raised as to the testator's capacity, there was sufficient evidence to present an issue for the jury to pass upon.' The matter was remanded for a new trial on the issue of testamentary capacity.

Suffolk County Probate Lawyers said he learned Surrogate aptly observed on proponent's motion for a direction of a verdict at the close of the second trial: 'There has been a great deal more testimony submitted by the proponent in this case than there was in the previous case: We have had the testimony of the Polish woman, and her husband, the testimony of another neighbor, and the testimony of a doctor. This is an entirely different record.' Proponent's said motion was ultimately denied. However, the Surrogate had been inclined to set aside the verdict that the deceased was not of sound mind at the time of execution of the propounded document, and said so in the following language: 'All right, I will reserve decision. I am inclined to grant the motion.' And again, in response to an inquiry of counsel, the Court stated: 'No, I will set it aside. You won't have to come back.'

In determining whether there is any evidence to sustain the finding of testamentary incapacity, we are limited solely to the consideration of the competent and relevant evidence. In determining whether or not there was any evidence to sustain a finding of fact we may consider only that which is competent and probative.' The ultimate probate determination is the Surrogate's. 'If it appears to the surrogate that the will was duly executed; and that the testator, at the time of executing it, was in all respects competent to make a will and not under restraint; it must be admitted to probate.

Despite our limitation of the retrial to the issue of testamentary capacity, evidence was adduced, as at the first trial, relevant on but insufficient to establish fraud and undue influence, and wholly incompetent and irrelevant on testamentary capacity. It is indisputable that decedent on and prior to December 26, 1963, was possessed of testamentary capacity. Nevertheless, there was introduced the prior will dated November 13, 1950, more than 13 years before the execution of the propounded will. Also adduced was considerable evidence of decedent's financial assistance to various members of his family. This evidence, wholly irrelevant, with the fact of the death of decedent's widow, was placed before the jury in contestants' summation. Contestants' jury argument thereon seduced them to exercise their preference for the testamentary scheme of the 1950 will and ignore the issue of decedent's testamentary capacity on December 29, 1963, at the time of the execution of the propounded will. We are required, in passing on the legal sufficiency of the evidence on testamentary capacity, to disregard the incompetent and irrelevant evidence.

The sole basis for contestants' claim of testamentary incapacity is the testimony of the witnesses as to decedent's physical condition on December 29, 1963, sometime after he had executed the propounded will. The inference most favorable to contestants is that decedent was either indisposed or physically exhausted during the time said witnesses visited with decedent.
The evidence of lack of testamentary capacity is too trifling 'reasonably to satisfy a jury.' The medical testimony of contestants is hypothetical and unfounded in fact.

For the foregoing reasons, we reverse the decree and direct probate. In any event, if we did not direct probate, we would set the verdict aside and direct a new trial, on the ground that the verdict of the jury is against the weight of the evidence.

The decree denying probate is reversed, on the law, with costs to all parties filing briefs, payable out of the estate, and the matter remitted to the Surrogate's Court, Bronx County, to enter a decree admitting the propounded instrument to probate as the last will and testament of the decedent.

Accordingly, the court held that the decree is reversed, on the law, with $50 costs and disbursements to all parties filing briefs, payable out of the estate, and the matter remitted to the Surrogate's Court, Bronx County, to enter a decree admitting the propounded instrument to probate as the last will and testament of the decedent.

In determining whether there is any evidence to sustain the finding of testamentary incapacity, the court is limited solely to the consideration of the competent and relevant evidence. If the testator lacks his testamentary capacity at the time he drafted the will, you may file an opposition on the probate of the will, call us at Stephen Bilkis and Associates. Our Bronx Estate Attorney and Bronx Probate Attorney can help you.

Issue in this Case is the Source of Payment for the Guardian ad Liten

September 14, 2014,

New York Probate Lawyers 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."

A Bronx Probate Lawyer 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.

Brooklyn 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.

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.