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Court Rules on Reasonable Attorneys Fees in Probate Case

A New York Probate Lawyer said that, the decedent died on June 4, 1931, a resident of Nassau County. His will dated November 26, 1930 was admitted to probate by decree dated June 15, 1931. The will created a trust for the benefit of the beneficiary under Article ELEVENTH. Letters of trusteeship originally issued to. The beneficiary died on August 30, 1989, a resident of New York County, leaving a will and codicil which was admitted to probate by the Surrogate’s Court of New York County by decree dated October 6, 1989. At the time of her death, the trustees of the trust were the beneficiary and the Bank.

A New York Will Lawyer said that, pursuant to Subdivision A of Article ELEVENTH of the decedent’s will, the trust is to be administered and disposed of as follows: “A. If my said daughter shall survive me, to invest and from time to time reinvest said share and to collect the income thereof, and during the life of my said daughter apply the net income thereof to the use of my said daughter by payment thereof to her, and IN FURTHER TRUST upon the death of my said daughter to pay and distribute the principal of the trust estate so held to and among the lawful issue of my said daughter who shall survive my said daughter and the lawful issue of my said son, who shall survive my said daughter, in such amounts, equal or unequal, as my said daughter in her uncontrolled discretion may, by last will and testament duly admitted to probate and not otherwise, appoint, expressly granting to my said daughter the right in the exercise of such power of appointment to exclude wholly from participation therein any one or more of her issue and/or any one or more of the issue of my said son; provided, however, that my said daughter, by last will and testament duly admitted to probate and not otherwise, may on such terms and conditions as she may think fit appoint any part or parts of the principal of said trust estate to a trustee or trustees in trust for the use of any of the lawful issue of my said daughter born before my death and her surviving, or of any of the lawful issue of my said son born before my death and her surviving, during the life of the cestui que trust of each trust so created, or for such lesser period as she may think fit.”

A Staten Island Probate Lawyer said that, the decedent daughter was survived by her three children,. In accordance with the decedent’s exercise of her power of appointment, Chemical Bank divided the principal of the decedent trust into three equal shares and held one such share in separate further trust for each of her children. This is an accounting with respect to the sub-trust for the benefit of the child. A Nassau Estate Administration Lawyer said that, by decree dated April 6, 1992, was appointed to serve as co-trustee of the fist child sub-trust with Manhattan Bank (successor by merger to Chemical Bank). By order dated February 27, 2008, this court approved the resignation of the Bank, as co-trustee of the sub-trust for the first child and the appointment of the decedent. The presumptive remainder men of the sub-trust for the benefit of the first child/son, the decedent’s great-grandchildren, all of whom are adults. Citation issued to all of the presumptive remainder men, as a successor trustee of the sub-trust. None of them have appeared in this proceeding.

Queens Probate Lawyers said the issue in this case is whether attorneys’ fees in this probate proceeding should be approved.

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

In evaluating the cost of legal services, the court may consider a number of factors. These include: the time spent; the complexity of the questions involved; the nature of the services provided; the amount of litigation required; the amounts involved and the benefit resulting from the execution of such services; the lawyer’s experience and reputation; and the customary fee charged by the Bar for similar services. In discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements set forth in a 1924 case decision. Also, the legal fee must bear a reasonable relationship to the size of the estate. A sizeable estate permits adequate compensation, but nothing beyond that. Moreover, the size of the estate can operate as a limitation on the fees payable, without constituting an adverse reflection on the services provided.

The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services. Contemporaneous records of legal time spent on estate matters are important to the court in determining whether the amount of time spent was reasonable for the various tasks performed.

With respect to disbursements, the tradition in Surrogate’s Court practice is that the attorney may not be reimbursed for expenses that the court normally considers to be part of overhead, such as photocopying, postage, telephone calls, and other items of the same matter. The court concluded that it would permit reimbursement for such disbursements only if they involved payment to an outside supplier of goods and services, adopting the standards set forth in a 1994 case decision. The court prohibited reimbursement for ordinary postage and telephone charges other than long distance.

The attorney has submitted an affidavit which shows that as of October 8, 2009, attorneys at his firm rendered a total of approximately 84 hours on this matter and a paralegal at the firm rendered 5.2 hours. Although contemporaneous time records have not been submitted to support the fee, counsel’s affidavit recites that the firm performed the following services: (i) the examination of the provisions of the decedent’s will and correspondence and telephone conversations with the corporate trustee concerning its proposed resignation and the appointment of successor trustees; (ii) the preparation and filing of an instrument by which Bank, N.A. resigned as a trustee of the trust; (iii) the examination of the instruments prepared by counsel for the decedent, appointing such persons as successor trustees of the trust; (iv) the examination of the instruments prepared by counsel for the nominated successor trustees by which the presumptive remainde rmen of the trust consented to the appointment of the successor trustee; (v) correspondence and telephone conversations with counsel for the successor trustees concerning these instruments, the judicial proceedings and the transfer of assets from the corporate trustee to the successor trustees; (vi) the preparation of the trustees’ petition and other papers necessary to institute and prosecute the proceeding on behalf of the trustees; (vii) the preparation of the account, covering the period from December 26, 1989, the date of the initial funding of the trust, through March 31, 2009, and the preparation of the trustees’ petition, the citation and other papers necessary to institute this accounting proceeding on behalf of the trustees; (viii) correspondence and telephone conversations with the corporate trustee and counsel for the successor trustees regarding the account and the accounting proceeding; (ix) effecting service of the citation on the interested parties and preparing and filing herein the proofs of such service; (x) appearing on October 7, 2009, the return date of the citation; (xi) the examination of the provisions of the will and correspondence and telephone conversations with the trustees concerning the proposed reformation of the will to allow nominee registration of the securities held in the trust; (xii) the preparation of the trustees’ petition, the citation and other papers necessary to commence the reformation proceeding on behalf of the trustees; (xiii) research and preparation of a memorandum of law in support of the trustees’ petition; and (xiv) the preparation of an order of reformation, which order was signed by the court on August 10, 1999.

Accordingly, the court held that, considering all of the factors used to determine the reasonableness of fees, the court fixes the attorney’s fee in the requested amount of $35,313.99, of which $10,313.99 has been paid. Submit decree.

Legal fee must bear a reasonable relationship to the size of the estate. A sizeable estate permits adequate compensation, but nothing beyond that. If you have an issue concerning legal fees in a probate proceeding, seek the representation of a Nassau Probate Attorney and/or Nassau Estate Administration Attorney at Stephen Bilkis and Associates. Call us.

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