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Court Revokes Commissions Collected by Executor


This is a decision made in the Surrogate’s Court of the State of New York in Nassau County after a bench trial of the accounting of the executor of the estate. Before the trial the objectant by an order to show cause sough the revocation of letters testamentary that were issued to the executor. The application has been held in abeyance pending the trial of the accounting of the estate.

Case Facts

The decedent passed away on the first of May, 2004 and left behind a will that was admitted for probate. The decedent was survived by four children. The will bequests pre-residuary cash payments in the amount of $45,000 to three of his children. The will divides the residuary estate equally among all four children. Letters testamentary were issued to the oldest child as he was named as the executor of the estate.

The executor filed a document of accounting that covered the first and final accounting of the estate from May of 2004 through January of 2008. The account was verified approximately one year after the first and final account.

A New York Probate Lawyer said one of the benefactors has filed objections to the accounting. First, it is contended that the executor took a cash advance of $10,000 for payment of commissions. Objectant seeks this money to be returned to the estate plus interest. It is further alleged that the executor made distributions to his company in June of 2005 in the amount of $100,000 and in the amount of $20,000 in January of 2006. The $100,000 was credited as a distribution to himself. The $20,000 was repaid to the estate without interest.

There were two witnesses called during the hearing, the other two siblings that are named in the estate. The witnesses stated at the time of the death of their father all of the children and their mother met at the home of their late father to go over the amounts that they currently owed their father. One child stated that she owed her father $5000. The other son stated that he owed his father $50,000. Each agreed that these amounts would come from their share of the estate.

There is a question of the amount owed by the objectant. Records indicate that he is to receive $66,285 less than his distributive share. However, Bronx Probate Lawyers said he objects to this amount stating that the executor took money from his share and paid it to himself.

Case Discussion and Decision

The court has reviewed the records of the account and comes the following conclusions. First, it is found that the executor withdrew $10,000 from the estate as payment of commissions to himself without approval. This amount is to be paid back to the estate plus 9% interest from the time it was taken to the date it is repaid. Additionally, it is found that he took $20,000 from the account and paid it to his business. This amount was repaid without interest. Brooklyn Probate Lawyers said the court orders that he repay the account in the amount of 9% interest for the duration of the loan. It is additionally found that he withdrew $66,000 as a repayment for a loan he made to his brother. This act was in bad faith.

For these reasons, the court is revoking all commissions from being paid to him. The letters will not be revoked.

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