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Family Member Seeks to Invalidate Trust


In situations of estate probate, there are often times when a person is appointed by the court to review the circumstances surrounding a will and to determine if the law has been followed in the distribution of the assets set forth in the document. This person is called the guardian ad litem. The guardian ad litem is an experienced attorney who’s responsibility is to prepare a detailed report where he lists his findings and based upon his findings, recommends the necessary action that should be taken to protect the interests of the person who has filed the complaint.

In the situation at hand, the decedent passed on May 9, 2007. There were four distributes named in the estate documentation. Two daughters were named, one son, and one granddaughter who is the child of a son who had passed prior to the death of the decedent. New York Probate Lawyer said one of the daughters filed a complaint with the probate court that the will naming only one of the son’s as the sole inheritor for the living trust of the decedent should be ruled invalid.

The reasons that were set forth to invalidate the living trust was that one of the daughters states that prior to the decedent’s death, the lone surviving son placed undue influence on the decedent up to and including fraud against the decedent while he was physically ill and depressed. The guardian ad litem in this case determined that the daughter might possibly have a case and determined that it was only proper for him to continue to represent the daughter in the future hearings in reference to the closing of the decedents affairs.

There were three actions before the court for consideration in this case. The first was to declare the living trust of the decedent. The second was to probate the decedent’s last will and testament. The third was the son’s proceeding to settle his account. Further, it is important that the court determine the proper and appropriate fee for the guardian ad litem to receive for his services. Suffolk County Probate Lawyers said the court notes that it is appropriate for the guardian ad litem to ask the court to award an interim fee for the services that he is providing to the daughter.

Because the court agreed with the determination of the guardian ad litem that there is reason that the daughter should have representation in the three actions, it must establish a means to provide the guardian ad litem with appropriate compensation. It is the responsibility of the court to approve the legal fees that get charged to an estate. Westchester County Probate Lawyers said the court has the discretion to determine what level of fee is reasonable as compensation for legal services rendered during the course of administration of an estate.

There are no distinct guidelines or hard rules to calculate what might constitute reasonable compensation for an attorney in every case. The court expects the surrogate who approves the guardian ad litem’s fee to be reasonable and exercise proper discretion. The amount of compensation that an attorney is granted for acting as a guardian ad litem is not to be applied in an arbitrary fashion. The surrogate must consider the amount of time that the attorney will have to devote to the case at hand. They must consider the complexity of the legal aspects of the case. Then they must consider the nature of the services provided. There is a lot of area for discretion as it relates to the granting of legal fees. The amount of complexity that the litigation will require bears heavily on the amount that the guardian ad litem is granted. The surrogate must also consider the lawyer’s experience and reputation as well as the customary fee charged by members of the Bar for similar services. Once the decision is made, the court is bound by the decision.

At Stephen Bilkis & Associates a probate lawyer, is available in convenient offices located throughout New York and the Metropolitan area to respond to your call. Our estate Attorneys can provide you with good advice when you are drawing up your own will.

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