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Court Decides Will Contest Involving Minor Children


A New York Probate Lawyer said that on 11 April 2007, the decedent died leaving a will dated 7 August 1997. She was survived by her two sons, A and B, and a granddaughter, CC, issue of a predeceased daughter, C.

Under the decedent’s will, her estate was to be divided equally between her two sons, and the issue of her predeceased daughter. It was provided in the will that, where any part of the estate vests in a minor, the executor named is authorized and empowered in his absolute discretion, to hold the property so vested in such minor and to invest and reinvest the same, collect the income therefrom, and during the minority of such minor, to apply so much of the net income therefrom or of the principal thereof for the care, support, maintenance or education of such minor as the executor deems it necessary and to accumulate any such income not so paid, if any, and to invest and reinvest same until said minor shall attain the age of 21 years, at which time the accumulated income and unexpended principal shall be paid over to him; the authority conferred upon the executor must be construed as a power only and cannot operate to suspend or prevent absolute vesting of any property in such minor; with respect to any such property which shall vest in absolute ownership in a minor or minors but which shall be held by the executor as authorized, the executor is entitled to such commissions at the rates and manner payable to a testamentary trustee with the same power and authority. The decedent nominated her three children as co-executors and directed that they serve without bond. The estate was valued at approximately $345,000.

Consequently, a probate proceeding was instituted. At that time, CC was a minor and a guardian ad litem was appointed to represent her. The guardian ad litem had no objections to the will being admitted to probate. However, the guardian ad litem recommended that the infant’s share of the estate be placed in trust with the Public Administrator to act as Trustee.
Here, the decedent’s will establishes a power during minority and her two sons are the donees of the power. As donees of a power during minority, they are fiduciaries. Both Article 10 of the EPTL and the Prudent Investor Act apply to the donees of a power during minority. A power during minority is customarily given to an executor or trustee under a will to avoid the appointment of a general guardian, so that title vests in the infant but the executor or trustee can continue to manage the funds for the infant’s benefit until he or she reaches 21. The authority of a donee of a power during minority is limited to the management of property as title vests in the infant. For this reason, as the donee does not have title to convey the property to a trust, the guardian ad litem’s recommendation to transfer the property to a trust with the Public Administrator as trustee must be denied. As a fiduciary, the donee of a power of appointment will not be discharged until he accounts either informally or formally. Further, the co-executors must account before turning the property over to themselves as donees of the power during minority. They should also file an oath and designation as both co-executors of the estate and co-donees of a power during minority. As the will directs that no bond be filed, no bond will be required.

Accordingly, a Brooklyn Probate Lawyer said based upon the affirmation and time records submitted by the guardian ad litem, the foregoing and the criteria to be used in fixing attorneys’ fees as established by two cases, Matter of Potts in 1924/1925 and Matter of Freeman in 1974, the court fixed the fee of the attorney in the amount as requested and finds a fee of $1,800.00 to be reasonable. And, after due consideration, a Long Island Probate Lawyer said the court was satisfied that the will was duly executed and that at the time of its execution the decedent was of sound mind and free from restraint. The propounded instrument ordered admitted to probate.

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