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Public Administrator Asks Court To Disallow Attorneys Fees


A New York Probate Lawyer said a man died intestate, a resident and domiciliary of Nassau County. Letters of estate administration were issued to the Public Administrator. The account filed by the Public Administrator shows total charges of $614,863.33, total credits of $72,849.32 and a balance on hand of $595,994.34. Objections to the account were filed by people who claim to be distributees of the decedent. They objected to the disallowance of their claims against the decedent’s estate and the Public Administrator’s request to distribute the net estate to the New York State Comptroller for the benefit of the decedent’s unknown distributees, and they reserved their right to object to the Public Administrator’s legal fees, but ultimately did not object to them. Thereafter, the Public Administrator filed an affidavit bringing the account current. It shows total charges of $677,462.32 and total credits and cash on hand of $677,462.32.

The record reflects that a diligent and exhaustive search was made to discover evidence of other possible distributees. Since more than three years have elapsed since the decedent’s death, the known heirs are entitled to the benefit of the presumption of Surrogate’s Court Procedure Act (SCPA). Therefore, based upon the evidence before the court, it is held that the decedent is survived by five distributees: one paternal cousin and four maternal cousins. Pursuant to Estates Powers and Trusts Law (EPTL), one-half of the decedent’s property passes to the issue of paternal grandparents, by representation, and one-half to the issue of maternal grandparents, by representation.

A New York Will Lawyer said that durning to the accounting, the Public Administrator’s reimbursement in the amount of $7,469.00 for the decedent’s funeral is approved as a reasonable and necessary estate administration expense. The Public Administrator has asked for the court’s approval for disallowing the claims for payment of legal fees; for cleaning services at the decedent’s residence; for cleaning services at the decedent’s residence; and for cleaning services at the decedent’s residence. The basis of the Public Administrator’s rejection of the claims is that these individuals were not authorized by the Public Administrator to provide cleaning services to the estate. These four claims have now been withdrawn, making the request for approval of their disallowance moot. The claim of the oil company is disallowed for failure to submit documentary evidence sufficient to substantiate such claim and for failure to complete and return the affidavit of claim required by SCPA.

A Nassau County Probate Lawyer said that regarding the fee of the attorney for the Public Administrator, 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 services rendered in the course of an estate. 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.

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.

A Suffolk County Probate Lawyer said these factors apply equally to an attorney retained by a fiduciary or to a court-appointed guardian ad litem. Moreover, the nature of the role played by the guardian ad litem is an additional consideration in determining his or her fee. With respect to a guardian ad litem’s attorney’s fees, 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.

The affirmation of legal services filed by the counsel for the Public Administrator shows that the attorney’s fees incurred totals $50,574.25 at hourly rates ranging from $200.00 to $350.00 for attorneys and from $125.00 to $175.00 for paralegals. However, in his affirmation, counsel for the Public Administrator requests the lower amount of $40,000.00 (exclusive of the flat fee of $1,500.00 for the sale of the decedent’s real property), of which $31,578.25 was paid and the balance was unpaid on June 16, 2009 when the affirmation was executed.

The affirmation and the billing reports annexed thereto detail the legal services provided to the Public Administrator with respect to this matter. They include preparing the petition for letters of estate administration; securing a fiduciary bond; reviewing the estate administration decree; reviewing asset information; identifying and collecting the decedent’s liquid assets and reviewing statements with respect thereto; identifying and dealing with the decedent’s life insurance policies; identifying and determining the disposition of the decedent’s pension plan death benefits; dealing with creditors’ claims against the decedent’s estate; dealing with the decedent’s tangible personal property; making court appearances; dealing with kinship issues, including investigating and communicating with the decedent’s relatives; preparing the final account, the petition for judicial settlement thereof and the supporting affirmation; preparing the affidavit bringing the account current; and preparing for and attending the kinship hearing. With respect to the sale of the real property, counsel reviewed the title report and clearance of title exceptions; prepared the schedule of balances due, real property tax adjustments and closing costs; prepared the deed and transfer forms; conducted the closing; and prepared the closing statement. The court notes that some of the billing entries are for services secretarial in nature or for interoffice conferences with multiple attorneys. However, the voluntary reduction in the requested legal fee more than compensates for the fees incurred on those activities. In light of all the factors to be considered, the court approves the legal fee for counsel to the Public Administrator in the amount of $40,000.00, plus $1,500.00 for services rendered with respect to the sale of the decedent’s real property, for a total fee of $41,500.00.

The guardian ad litem has submitted an affirmation outlining the services he performed during the 45.30 hours he spent on this matter. In that regard, the guardian ad litem reviewed the account and the petition in support, reviewed the objections, reviewed documents regarding kinship and investigated kinship issues, reviewed correspondence, prepared for and attended the kinship hearing, read the transcript from the kinship hearing, reviewed additional affidavits submitted after the hearing with respect to kinship, participated in a conference call with other counsel and the referee and prepared the guardian ad litem report. Based upon the criteria established, the court awards the guardian ad litem the fee of $12,500.00. The guardian ad litem’s fee shall be paid within thirty (30) days from the date of the decree to be entered herein.

Normally, an accountant’s services are not compensable from estate assets unless there are 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.

The accounting firm has submitted an affidavit of services requesting fees totaling $3,300.00, of which $2,150.00 was paid and $1,150.00 for additional estimated billing to prepare the final fiduciary tax return is unpaid. The affidavit and attached invoices show that the firm handled the preparation of the estate’s federal and state income tax returns for the years ended 2006-2008 and the preparation of the decedent’s 2003 federal and state personal income tax returns. The work the firm performed was not duplicative of the services rendered by the Public Administrator’s legal counsel. Further, the requested amount is reasonable. The court approves the fees of the firm in the requested amount of $3,300.00.

Will contest proceedings are not only lengthy, there are also financially draining. Several experts are needed to be successful in the courtroom battle. To be able to win, you will need the representation of the Nassau County Estate Administration Lawyer together with the Nassau County Estate Litigation Attorney from Stephen Bilkis and Associates.

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