Published on:

Court Decides Executrix Commissions


n a proceeding for ancillary probate of the will of decedent, which will, it is alleged, has been admitted to probate in the Republic of Mexico, the nation in which decedent was domiciled at the time of his death. The application indicates that decedent possessed real property in both Bronx County and Westchester County.

A New York Probate Lawyer said that petitioner has advised the court that he initially sought to obtain ancillary letters from the Surrogate’s Court, Westchester County. However, when the staff of that court indicated to him that they would require additional documents, he opted to abandon proceeding before that court and to seek relief in Bronx County.

The court does not reach the merits of the application. There is no question that, ab initio, petitioner could have proceeded in either county. However, petitioner having exercised his option to proceed in Westchester County, it would constitute an inappropriate countenancing of forum shopping for this court to now entertain the instant application.

It is well established that, when two courts have concurrent subject matter jurisdiction, once one has exercised jurisdiction in the matter, it should not be entertained by the other.

In the instant matter, this court is sensitive to the fact that the application in Westchester County perhaps did not reach the point of a formal application that was denied by judicial act. However, the spirit of the above cited rule, which is intrinsic to the orderly administration of justice divorced from the pernicious practice of judge shopping, requires that, in the exercise of discretion, this court not entertain a matter that was previously submitted to another court that had jurisdiction over the subject and did not, by its own order, decline jurisdiction without prejudice to petitioner’s proceeding before another forum of his choice.

Accordingly, a New York Will Lawyer said the instant application is dismissed without prejudice to the petitioner pursuing such relief before the Surrogate’s Court, Westchester County, as he deems appropriate.

A Suffolk County Probate Lawyer said in another probate case, although the objections previously filed have now been withdrawn, the court is called upon to decide whether SCPA 2307-a(7) mandates that it be determined prior to the issuance of letters testamentary to the designated executrix, the attorney who drafted the will, whether she has complied with the disclosure requirements of subdivisions 1 and 2 of this statute or whether the determination of this issue may be deferred based upon the fact that the only assets of the estate are pending causes of action to which a claim for wrongful death will be added.

A Nassau County Probate Lawyer said SCPA 2307-a was enacted to clarify that attorneys who drafted wills designating themselves as the executors are entitled to both full statutory commissions and reasonable legal fees provided that they have complied with the disclosure requirements of the statute and only one-half of the statutory commissions to which they would otherwise be entitled if they failed to obtain proof of disclosure in the form mandated by the statute.

Prior to the enactment of this statute not only was there a question as to the commissions and legal fees to which an attorney-executor would be entitled but also a question as to whether objections to full statutory commissions based upon the attorney’s failure to make full disclosure had to be made in the probate proceeding or could be asserted for the first time in an accounting or other appropriate proceeding.

The Legislature, apparently of the opinion that executors are entitled to know that rate at which they will be compensated prior to undertaking a fiduciary responsibility, provided in SCPA 2307-a(7) that “a determination of compliance with the requirements of subdivisions 1 and 2 of this section shall be made in a proceeding for the issuance of letters testamentary.” However, there are no statutory guidelines for the procedure to be used by the court before it renders this determination.

Fundamental concepts of due process would appear to dictate that, before the court determines this issue, notice and an opportunity to be heard should be afforded to all the parties who would be affected by the amount of the commissions awarded. Furthermore, in furtherance of the public policy that requires courts to husband their limited resources by confining their determinations to the resolutions of controversies having a present, practical impact, the courts generally decline to entertain potential issues which may never actually arise.

Here, if there is no recovery in the pending actions, the commissions of the executrix shall be zero regardless of whether the commissions are computed at the full statutory rate or one-half that amount. Under these circumstances, and in the absence of the designated executrix insisting that the court presently render a determination with regard to the rate at which her commissions are to be computed prior to the issuance of letters testamentary, the court concludes that it has the discretion to hold this issue in abeyance until an accounting or other appropriate future proceeding even though SCPA 2307-a(7) states that this issue “shall” be determined in the probate proceeding.

In short, neither the executrix nor the residuary beneficiaries should be compelled to presently address this issue if they do not want to and they might never have to in the event that there is no recovery in the pending actions. Of course, the court is not determining whether the designated executrix would have a right to insist that this issue be determined in the probate proceeding.

In the absence of any opposition, the court is satisfied that the will was duly executed and that the testatrix was in all respects competent to make a will and not under any restraint. Notwithstanding that the pro se objectants have withdrawn their objections, the decree admitting the will to probate, which shall contain a provision that all issues as to the amount of commissions under SCPA 2307-a shall be determined in an appropriate future proceeding, shall be settled upon the former objectants.

Probate of a will of a decedent is an operative process in order that the provisions in the will, will take effect. Here in Stephen Bilkis and Associates, we, through our Bronx County Probate attorneys assist the executors of the will to have the will probated in the Court. With the help of our Bronx County Estate lawyers, we will advice you on how to divide your estate properly.

Contact Information