New York Probate and Estate Administration Lawyer Blog

Published on: September 17, 2013

Court Decides Whether Accounting Fees and Attorney’s Fees Should be Approved

by Stephen Bilkis

A New York Probate Lawyer said that, in this accounting proceeding, the only issues before the court are the approval of attorneys’ fees and accounting fees. The decedent died on November 25, 2004, a resident of Nassau County leaving a will dated October 12, 2004, which was admitted to probate by decree of this court dated July 12, 2005. Letters testamentary issued to the decedent’s daughter, on July 12, 2005. The decedent was survived by seven children. The will divides the decedent’s residuary estate equally among his seven children

A New York Wills Lawyer said that, this is the executor’s first and final accounting covering the period November 25, 2004 through May 30, 2008. The summary statement shows charges to the accounting party of $955,030.92. Objections to the account were filed by the other children of the decedent. A stipulation of settlement settling the objections was entered into on September 23, 2009. Pursuant to the terms of the stipulation, the executor agreed to reduce her claim for executor’s commissions from $32,414.40 to $22,414.40 and use the reduction to fund a $10,000 payment to the objectants. The agreement also provides for the distribution of certain items of tangible property.

The issue in this case is whether the accounting fees and the attorney’s fees should be approved by the court.

Published on: September 8, 2013

Petitioner Moves for Summary Judgment in Will Contest Proceeding

by Stephen Bilkis

This is a probate proceeding wherein petitioner, A, moves for summary judgment pursuant to CPLR 3212 dismissing the objections to probate of the respondent, B, and admitting into probate the last will and testament of the decedent dated 7 April 1997 and a codicil dated 2 August 2006.

The court grants the motion in its entirety.

A New York Probate Lawyer said the decedent, C, died on 31 October 2010. C was survived by her husband, A, the petitioner, and by her two sons: B, the respondent, and D.

Published on: September 7, 2013

Court Reviews Details of Final Accounting

by Stephen Bilkis

Before the court is the first and final account of A as ancillary executor of the estate of B; an estate litigation. The court is asked to approve attorney’s fees, commissions, reimbursement of expenses for the estate administration and the settlement of the account.

A New York Probate Lawyer said on 3 May 2004, the decedent, B, died. B left a will dated 13 February 2001. At the time of her death, the decedent was domiciled in Florida. Ancillary letters testamentary issued to A on 18 July 2005. The accounting covers the period 3 May 2004 to 21 April 2009. An amended accounting covering the period 3 May 2004 to 22 December 2009 was filed on 5 February 2010. The amended accounting shows principal charges to the accounting party of $829,804.35. C, a $10,000.00 legatee and the beneficiary of fifty percent (50%) of the residuary estate filed objections to the accounting and the amended accounting. The ancillary executor is the beneficiary of the other fifty percent (50%) share of the residuary estate. By instrument dated 2 December 2010, C withdrew his objections to both the first account and the amended account.

A New York Wills Lawyer said with respect to the issue of attorneys’ fees, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate as held in Matter of Stortecky v Mazzone, Matter of Vitole and Matter of Phelan. 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 as was also held in Matter of Brehm and Matter of Wilhelm.

Published on: September 6, 2013

Court Reviews Legal Fees In Estate Administration Case

by Stephen Bilkis

Submitted for decision in this intermediate accounting proceeding is the issue of fees and commissions.

On 6 October 1999, A died. She left a will dated 8 August 1997. On 11 April 2000, the will was admitted to probate and on the same date, a letters testamentary was issued to B, her son. B died on 6 May 2002. This is an intermediate accounting by C as executor of the estate of the deceased executor B. The accounting covers the period from 6 October 1999 through 6 May 2002. The summary statement shows charges to the accounting party of $2,384,134.60.

A New York Probate Lawyer said that with respect to the issue of attorney 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 fees rendered in the course of an estate as held in Matter of Stortecky v Mazzone. 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 as held in Matter of Brehm.

Published on: September 5, 2013

Court Finds Decedent’s Testamentary Capacity is in Question

by Stephen Bilkis

This case is contested probate proceeding brought to the court by the nephew of the decedent, A. Objectant moves for an order pursuant to CPLR 3212 granting summary judgment denying probate to the two propounded wills dated 19 October 2001. A New York Probate Lawyer said the proponent, B, cross moves for summary judgment dismissing the objections and admitting the propounded instruments dated 19 October 2001 to probate. The objectant has interposed his objections to the propounded instruments alleging undue influence and lack of testamentary capacity. Objectant also seeks to disqualify B as executor of the estate pursuant to SCPA 707.

On 19 December 2001, decedent C died. He was survived by five brothers and sisters and nieces and nephews of predeceased siblings. Proponent B petitioned for probate of two instruments dated the same day, 19 October 2001. Both instruments contain the names of L, M, and N as the attesting witnesses and O, notary, with a stamp and signature.

Both instruments nominate B as executrix; one of them nominates D as successor. Both instruments divide the estate equally between D and B.

Published on: September 4, 2013

Court Discusses Undue Influence in Will Signing

by Stephen Bilkis

A New York Probate Lawyer said this case is a contested probate proceeding wherein the petitioner, A, the decedent’s second wife, moves for an order pursuant to CPLR 3212 granting summary judgment admitting the proffered instrument dated 21 December 2005 to probate and dismissing the objections filed by three of the four of decedent’s children from his first marriage, X, Y and Z.

On 29 October 2009, the 89 year old decedent died. On 12 September 1984, he was married to petitioner A. An instrument purported to be his last will and testament has been submitted for probate. In his will, petitioner was named the executor. The propounded instrument leaves his entire estate to the petitioner as his surviving spouse and unless she predeceases them makes no provision for the respondents. However, an earlier will dated 29 March 1994, left decedent’s entire estate to objectants.

A New York Wills Lawyer said the respondents have filed objections to probate alleging that: (1) the alleged will was not duly executed as required by law; (2) the propounded instrument was not freely or voluntarily made or executed by the decedent, but was procured by fraud or undue influence practiced upon the decedent by the petitioner or others acting in concert with her; and (3) on the date of the making of the instrument, decedent was not of sound mind or memory and thus incompetent to make a will.

Published on: September 2, 2013

Court Determines Legal Fees in Estate Litigation

by Stephen Bilkis

In this Estate Litigation, the decedent, died in October 1999. Her will on 1997 was admitted to probate in April 2000. Letters testamentary issued to the decedent’s son. The son died in May 2002. Following his death, successor letters testamentary issued to the administrator in June 2002.

A Nassau County Estate attorney said that under Article THIRD of her will, the decedent bequeathed her residuary estate to her surviving issue subject to trusts created under Articles FOURTH, FIFTH and SIXTH. The decedent was survived by her son, a daughter, and a granddaughter, who is the daughter of the decedent’s predeceased daughter. Pursuant to the will, the share for the decedent’s son was set apart for his benefit in trust to be administered in accordance with the provisions of Article FOURTH. Letters of trusteeship issued to the son and another as trustees of the Article FOURTH trust. Pursuant to the terms of the trust for son, the trust terminated upon the son’s death and the then principal and income became payable to his surviving issue, subject to further trusts for any such issue under the age of thirty-five.

A New York Probate Lawyer said the son was survived by two children who are under the age of 35 and, therefore, separate trusts were created for the benefit of each pursuant to Article SIXTH. Letters of trusteeship issued to the daughter as trustee of the trusts for the benefit of the son’s children.

Published on: September 1, 2013

Probate Clears up Issue of Old Loan by Decendent

by Stephen Bilkis

In this Probate action, the decedent died leaving a will which was admitted to probate in July 2004. The decedent was survived by his four children. A New York Probate Lawyer said the will makes pre-residuary cash bequests of $45,000.00 to each child. The will further provides that the decedent’s residuary estate be divided equally among his four children. Letters testamentary issued to one of the child.

A New York Will Lawyer said that the administrator originally filed a First and Final Accounting of his proceedings covering the period May 2004 through January 2008. Thereafter, He filed a document which covers the same period covered by the First and Final Accounting. The Interim Account was verified by him nearly one year after the First and Final Account.

One of the administrator’s sibling filed objections to the accounting

Published on: August 31, 2013

Court Discusses Conflict of Creditor Acting as an Administrator

by Stephen Bilkis

In this Estate Litigation action, a creditor of the deceased filed a petition. Petitioner asks the court to issue limited letters of administration to the Public Administrator of Nassau County so that he can defend the estate against creditor’s mortgage foreclosure action against decedent’s residential real property. The petition avers that the outstanding mortgage is in the amount of $373,954.81 and that there are no other outstanding debts or funeral expenses.

A New York Probate Lawyer said that deceased died sometime in September 2007 while visiting El Salvador. According to the petition before the court, decedent was survived by his wife and two minor children, all of whom are citizens and residents of El Salvador. The petition does not contain street addresses for these non-resident distributees. The petition further reflects that decedent was also survived by one adult child, who resides in decedent’s home, which is the subject of the foreclosure action underlying this petition.

Citation issued listing the wife and the Public Administrator, and was returnable. Affidavits filed with the court indicate that the citation was served. An affirmation in support of amending the petition and dispensing with service on wife was filed by counsel on behalf of the Bank one day prior to the return date of the citation. Counsel for petitioner affirms that the daughter advised his office that the wife lives in El Salvador but that the child was unable to provide the wife’s address. Counsel avers that wife’s residency in El Salvador was confirmed by the process server’s unsuccessful attempt to serve citation on the wife at decedent’s home. Attached to counsel’s affirmation is an affidavit of due diligence that reflects that in addition to attempting to serve the wife at decedent’s last address, counsel’s staff also ran a computer search for the wife using the on-line telephone directory for El Salvador, but did not find a listing for the wife’s name. The affidavit concludes by stating that “deponent duly exhausted all efforts to obtain jurisdiction over the defendant”

Published on: August 21, 2013

Petitioner Files a Petition to Compel an Accounting

by Stephen Bilkis

Decedent, by codicil, nominated his attorney and that attorney’s accounting partner as co-executors of his estate. It was apparent from the outset of the probate proceedings that this estate was of sufficient financial magnitude as to fall within those provisions entitling each fiduciary to seek a full commission.

According to a New York Probate Lawyer, decedent died in November 1976, and permanent letters were issued by decree. The five objectants constitute decedent’s widow and four children, all of whom comprise the primary beneficiaries of this estate. Probate was accomplished without objection to the nominated fiduciaries. Decedent’s youngest issue, then an infant, was represented by a guardian ad litem. It does not appear that decedent’s three adult issue were individually represented by counsel in the probate proceedings. The fiduciaries’ administration of this estate continued without objection until the filing of their final account. This account was filed subsequent to the bringing on of a petition to compel an accounting. The examination of the schedules constituting this account indicates an administration with some complexity.

A New York Will Lawyer said the objections which the accounting parties seek to have dismissed relate to the right of the two fiduciaries to each seek a full commission. The issues relative to the co-executors’ administration of the estate and whether that administration would justify some form of reduction in their compensation is not presently before the court. More particularly, it is now claimed that the co-fiduciaries, one of whom was the attorney draftsman of the codicil containing his appointment, “negligently, unethically, improperly, and/or fraudulently” failed to inform the testator of the standards for two full commissions and that two commissions should, therefore, not be paid.