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Court Rules on Setting Fees for Legal Counsel of the Executor


A New York Family Lawyer said 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 the counsel.

A woman died as resident of Massapequa, New York. She was survived by her son, the petitioner and her daughter. Her will of September 30, 1970 and a codicil thereto dated June 22, 1972 were admitted to probate and letters testamentary were issued to the petitioner. A codicil is a document that amends, rather than replaces, a previously executed will. The decedent’s will provides that the residuary estate be divided equally between the two children but the daughter, if unmarried, will be given a two year right to occupy the decedent woman’s Massapequa home provided she pay real estate taxes. The decedent’s daughter resided in the premises until late August, 2005 and the estate sold the property on February 14, 2006.

A New York Will Lawyer said 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 Court is required to exercise his or her authority with reason, proper discretion and not arbitrarily.

A Brooklyn Probate 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 estate 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. 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.

A Bronx Probate Lawyer said 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 the 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.

In this estate, the executor originally retained the counsel 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. The counsel billed and was paid for $1,000.00 in additional services. The counsel primarily handled the probate proceeding, negotiating with the daughter’s attorney regarding a possible purchase of the decedent’s home by the daughter and qualified the decedent’s son as the appointed fiduciary. The son obtained a waiver and renunciation from the drafting attorney nominated as a co-fiduciary. The decedent’s son also reminded the decedent’s 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 of the counsel who handled the preparation and filing of this account.

A firm was retained by the counsel 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 for a total of $14,573 plus disbursements of $747.18 for a total fee of $15,320.18 which has been voluntarily discounted to $13,172.50 of which $3,677.75 has already been paid and $9,494.75 remains outstanding.

Total charges in this estate are $419,975.94 according to the summary statement of the account plus $6,461.66 in interest income earned until January, 2007. Total legal fees are $25,172.50 which amounts to approximately 6% of the estate.

The counsel sheparded a probate proceeding through the court in circumstances where there was a possibility of a co-executor-attorney claiming a right to serve and where the daughter of the decedent, 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. The counsel also handled the closing on decedent’s home and preparation of the inventory. To the extent that the counsel 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 counsel is allowed.

With respect to the firm, 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 firm’s partners and the counsel, in telephone conferences with the counsel and in reviewing his 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 firm has already discounted its fees and therefore the reduced amount requested is reasonable and allowed as are the disbursements in the sum of $625.00 through entry of a decree in this proceeding. Accounting services of $550.00 for preparation of Federal and state fiduciary income tax returns are allowed.

The executor also seeks reimbursement for $3,324.81 plus an additional $262.18 since the account was filed, for funeral expenses, travel related expenses and miscellaneous postage, film, landscaping and other costs. Of these expenses $2,454.18 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 of $2,454.18 in travel expenses is approved. Reimbursement of $100.00 paid to a landscaper and funeral expenses of $810.00 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 (in this case $16,599.28) whether the fiduciary is a resident or non resident of the state.

Executing a will requires you to hire experts and with it comes financial obligations. If you want to make sure that you are able to perform your duty as an executor of a will, you can seek the advice of a Nassau County Probate Lawyer or a Nassau County Will Contest Attorney from Stephen Bilkis and Associates.

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