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Probate Court Conducts an Accounting Proceeding


A New York Probate Lawyer said that records show that in the instant case, the decedent died on August 27, 2003 a resident of New York. She was survived by her son and her daughter. Her will of September 30, 1970 and a codicil thereto dated June 22, 1972 were admitted to probate on November 12, 2003 and letters testamentary issued to the executor for estate administration. The will provides that the residuary estate be divided equally between the two children but that the daughter, if unmarried, be given a two year right to occupy the decedent’s home provided she pay real estate taxes. The daughter resided in the premises until late August, 2005 and the estate sold the property on February 14, 2006.

Submitted for decision in this uncontested accounting proceeding are the issues of the fees of counsel for the executor, accountant’s fees and reimbursements to the executor of sums advanced by him.

The court ruled that, as with any request for a fee, 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 regardless of a retainer agreement. 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 New York Estate Lawyer said that 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. 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.

Nassau County Probate Lawyers said that 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 accountant’s fees, normally, accountant’s services are not compensable out of 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”.

A Staten Island Probate Lawyer said that in this estate the executor originally retained the lawyer at a fixed fee of $12,000.00 for 40 hours of professional time with an understanding that provided for compensation for additional unanticipated services. He was billed and was paid for $1,000.00 in additional services. He primarily handled the probate proceeding, negotiating with the daughter’s attorney regarding a possible purchase of the decedent’s home by her and qualified the son as the appointed fiduciary. He obtained a waiver and renunciation from the drafting attorney nominated as a co-fiduciary, reminded the daughter of her duty to vacate the premises and handled the sale of the premises. He filed an inventory with the court and communicated with the firm who handled the preparation and filing of this account. Others was retained by the original lawyer and the executor on or about July 22, 2005. Their fees include 24.51 hours of various partners time and 46.48 hours of paralegal time plus disbursements wherein some has already been paid and a certain amount remains outstanding.

The original lawyer shepherded a probate proceeding through the court in circumstances where there was a possibility of a coexecutor-attorney claiming a right to serve and where the daughter, through her counsel was considering objections to her brother’s nomination based upon his qualifications. Animus between these siblings generated some of these additional fees. He also handled the closing on decedent’s home and preparation of the inventory. To the extent he relies upon time expended by him, he has failed to produce contemporaneously-maintained time records of the amounts of time allegedly expended and describing with particularity the precise services rendered. Therefore, it is difficult for the court to correlate the tasks performed to the alleged time in excess of forty (40) hours. However, no objection to the fee has been raised and the amount is not unconscionable. Therefore, the legal fee requested by the original lawyer is allowed.

With respect to the other employed, there was an apparent effort to minimize fees by the use of a paralegal. Nevertheless, an excessive amount of time appears to have been devoted to duplicative services of consultations between the partners and the lawyer, in telephone conferences with him and in reviewing the lawyer’s emails and responding thereto. Additionally, several hours in November and December of 2006, which are not precisely ascertainable, were expended in the preparation of both attorneys’ affidavits of services. Finally, disbursements for UPS, priority mail, postage and photocopying are disallowed. However, as set forth above, the other employed has already discounted its fees and therefore the reduced amount requested is reasonable and allowed as are the disbursements in a specific sum through entry of a decree in this proceeding.

The executor also seeks reimbursement for plus an additional expenses since the account was filed, for funeral expenses, travel related expenses and miscellaneous postage, film, landscaping and other costs. Of these expenses are for travel from the executor’s home in Ohio to New York for food, gas and lodging. When it can be inferred that the testator knew that travel by a representative she nominated, such as her son who resides in Ohio, would be required, reimbursement of such travel expenses in permissible. Thus reimbursement in travel expenses is approved. Reimbursement paid to a landscaper and funeral expenses for the minister, florist and funeral luncheon are also allowed. Other expenses for postage, film, bulbs, duct tape and signs are deemed to be costs of performing routine fiduciary duties and are deemed absorbed by commissions whether the fiduciary is a resident or non resident of this state.

Stephen Bilkis & Associates, with offices located throughout New York, offers the services of its skilled Kings County Probate Lawyers and its seasoned New York Estate Attorneys in cases such as but not limited to will contest, estate litigation, estate administration. Some cases involving matters of the estate are complicated due to claims of persons whose rights are affected therein, and application of laws of different jurisdictions. Therefore, to ensure that your rights are protected at all times, consult and speak with your legal experts.

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