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Court Finds Executors Pay Excessive


This is a case being heard in the Surrogate’s Court of Queens County. The court has started this proceeding in regard to its own administrative rule that requires an account to be filed within a year of the date a fiduciary is appointed who is also an attorney.

Case Background

In this case the attorney/fiduciary was ordered to file an accounting with this court no later than one year after the date of the decree and failure to do so will result in the letters being revoked. The executor has filed his account within the set time limit.

The papers that have been submitted for accounting have raised issues with respect to the reasonableness of the legal fees and the accuracy of the commissions charged by the attorney/fiduciary. These issues are now set for a hearing before the court.

Case Discussion and Decision

A New York Probate Lawyer said the administrative rule was as outlined above was enacted by the discretionary authority of the court to supervise the charging of fees for legal services that are provided, even when there are no objections. The court has the authority to determine what a fair and reasonable amount for the services offered by the attorney shall be regarding each case.

New York Probate Lawyers said this rule mainly came to be because of the numerous complaints throughout the years that involved the nomination and performance after the appointment of an attorney as the fiduciary of an estate. This particular case shows why this rule is necessary.

The decedent of the estate passed away in February of 1984. The will of the decedent was admitted for probate without contest. The entire estate was left to his daughter in law, who is a resident and domiciliary of Canada. As a non-resident, she was ineligible to receive the letters testamentary. For this reason, an attorney was nominated as the alternate executor of the estate.

The attorney filed the accounting for the estate with this court as directed. It is shown that the bulk of the estate consists of two bank accounts that total $25,938.74 and a family home that was sold for $16,000. The value of the furniture and other personal items was set at $23,000. This valuation was not the result of an appraisal, but rather a guess made by the attorney. New York City Probate Lawyers said this estimate is suspect considering the modest means of the decedent. However, the fiduciary is not seeking a commission for distributing these assets so it is not in question in this case.

When the suspect valuation of the personal effects is subtracted it is found that the total value of the estate is $47,614.44. The account shows that the attorney/fiduciary took a total of $7,307.54 for fees and commissions. It is also shown that $4500 was paid to a real estate firm as commission for the sale of the house.

When looking at the records the court found that the attorney had in fact paid himself $11,807.54 since he was the real estate broker that sold the home.

The court finds that this amount is excessive and rules that a reasonable amount for the services offers should be fixed to $1200 with a permissible legal disbursement of $256.45. The total corrected amount to be paid from the estate is $2380.72 including the appropriate real estate fees. The attorney is directed to repay the estate in the amount of $7970.37.

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