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The Issue in this Case is Whether Probate of the Will Should be Granted


A New York Probate Lawyer said that, before the court are two separate but related matters which were filed in connection with the estate of the decedent who died on July 15, 2003, leaving a last will and testament dated April 21, 1989. The will divides decedent’s residuary estate equally among her four adult children. One is the nominated executor under the terms of decedent’s will, but when the will was offered for probate, decedent’s other children objected to his appointment. On December 17, 2003, an agreement was reached by all parties in open court, pursuant to which the will was admitted to probate on March 1, 2004 and the Public Administrator of Nassau County was appointed as administrator, c.t.a.

A New York Will Lawyer said that, the first matter to be addressed is the petition filed by the Public Administrator, dated May 2, 2005, which asks the court to settle his account as administrator, c.t.a. and approve legal fees and a fee for the accountant for the Public Administrator. The petition further requests that the court approve fees for the attorney who represented the executor in his petition to serve as the nominated executor under the will, allow reimbursement of certain funeral expenses paid by the daughter, and approve the payment of commissions and distributions.

A Long Island Probate Lawyers said that, the second matter before the court is a motion brought by the counsel for the executor (son), as the nominated executor. Movant asks the court to award costs and attorney’s fees and impose sanctions on the other brothers, the objectants to the accounting, pursuant to Rules of the Chief Administrator of the Court, 22 NYCRR §130-1.1. Under this section, the court may award to any party or attorney the costs and attorney’s fees resulting from frivolous conduct and may impose financial sanctions. Neither brother have responded to the motion.

A Brooklyn Probate Lawyers said that, the Public Administrator filed a petition on May 16, 2005 to judicially settle his accounting which covered the period from July 15, 2003 through March 31, 2005. This petition was supplemented by an affidavit bringing the final account current through June 30, 2008. The account reflects principal and income collected in the total amount of $423,079.49. Jurisdiction over all of the parties was completed on August 30, 2006. A conference was held on that date, and the parties were given until October 6, 2006 to file objections to the accounting. One son alone filed objections within this time period. The other son filed objections almost six months later. Numerous court conferences were held, a trial was scheduled, and the Public Administrator moved for an order granting summary judgment dismissing the objections. In Decision 169, issued June 30, 2008, this court dismissed all of the objections filed by Peter and all of Anthony’s objections, except as to the correction of certain schedules and those objections which pertain to attorney’s and accountant’s fees. The court directed the Public Administrator to serve and file corrected schedules E and J and an affidavit bringing the account down to date, and further directed the Public Administrator, the accountant for the estate, and to file affidavits of services rendered, after which the court would review the fees. Affirmations bringing the account down to date and amending schedule E were filed with the court, but there is no record of an affirmation amending schedule J, which the court had directed the Public Administrator to file in order to correct a harmless clerical error. Affirmations of services rendered were filed by the attorney for the Public Administrator, the attorney for the executor as the nominated executor and the attorney who represented the sister. An affidavit of services was also filed by the accountant for the Public Administrator.

The issue in this case is whether the probate of the will and the accounting thereof should be granted.

Regarding the fee of the attorney for the estate, 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. 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”.

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 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 set forth in Matter of Potts, and as re-enunciated in Matter of Freeman. 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, without constituting an adverse reflection on the services provided.

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.

In this case, the attorney for the Public Administrator submitted an affirmation of services which indicates that the firm spent in excess of 239 hours on this matter over the course of five years. The affirmation submitted by the attorney indicates, as does the court record, that the legal fees associated with this estate were dramatically increased by the conduct of Peter and Anthony throughout this administration, which included obstruction, threats and accusations, some of which will be addressed in the second part of this decision. The affirmation also reflects the many services provided by counsel, including, but not limited to, preparing and filing a decree granting probate and the oath of the Public Administrator; participating in numerous court conferences, control dates and return dates; preparing and filing a New York estate tax certificate and release of lien; preparing, executing and filing a notice to quit occupancy; commencing eviction proceedings; attending the public auction and related closing of the sale of the premises owned by decedent; preparing, filing and serving the final account, the amendments, the affidavit updating the account and all of the related documents; making partial distributions; and reviewing objections and filing a motion to dismiss. The services will also include preparing, filing and serving the final decree. If the firm’s billable rates were applied to the actual time spent, the result would be a bill in excess of $45,000.00, in addition to the flat fee of $1,500.00 paid in connection with the sale of decedent’s real estate. Instead, the attorney has offered to accept a reduced fee, including disbursements, of $40,000.00, of which $27,640.75 has been paid and $12,359.25 remains unpaid. This represents a fee reduction of approximately 12%. The court commends the attorney for his outstanding representation of the Public Administrator, often under extremely trying circumstances, and for the attorney’s offer to voluntarily reduce his fee. The court fixes the fee of counsel for the Public Administrator in the amount requested, which is $1,500.00 in connection with the sale of decedent’s real estate and $40,000.00 in connection with the estate administration.

Statements made in documents (4) and (7) above were contained in correspondence that was not sent to or filed with the court. Correspondence outside of actual court proceedings and not directed to the court appears to be outside the parameters of frivolous conduct as described in 22 NYCRR §130-1.1. In a decision addressing allegedly defamatory letters and flyers sent to recipients other than the court, the First Department denied sanctions for prosecuting a frivolous action because, among other factors, it could not be said that the conduct “resulted in improper use of the court’s time”. Statements contained in letters sent to recipients other than the courts cannot, in and of themselves, be said to have improperly utilized court time. On this basis, no sanctions are available in connection with these two letters.

The last statements to be addressed in the context of this motion are those contained in documents (2) and (6) correspondence to the court, and document (3) objections to the Public Administrator’s accounting. While the ugly and vitriolic language found in these documents is disturbing, the question to be determined by the court is whether these statements constitute frivolous conduct within the meaning of 22 NYCRR § 130-1.1. Subsection (c) provides that “[f]or purposes of this Part, conduct is frivolous if (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false”. The statements contain baseless charges and threats, and it would be obvious to a reasonable person reading these documents in their entirety that these statements are not based in reality. Further, it is not clear that the purpose of the statements is to delay or prolong litigation, or harass or maliciously injure. In fact, it is unclear that this conduct serves any purpose whatsoever. The court is reluctant to impose sanctions for these comments, even as the court acknowledges that these excerpts come dangerously close to conduct which would be sanctioned. The court hereby puts the brothers on notice that it is within the court’s power to protect the estate from incurring expenses which are the result of behavior that is frivolous within the meaning of 22 NYCRR 101-1.1, and that a continuation of such conduct on their part will only serve to reduce their interest in the estate.

Movant also asks that the court award costs for legal fees and expenses incurred in connection with objectant’s statements. The court is unable to grant this portion of the relief because the motion contains no specific charges that the objectant’s statements resulted in additional costs or fees for legal services. Moreover, even if additional fees and costs had been incurred, movant has failed to provide the court with an affirmation of services or concurrent time records in support of this relief. In connection with a motion for sanctions, the Supreme Court of New York County noted that where an application for costs and fees is made, movant “must submit a particularized affidavit setting forth the costs and fees associated with this motion”. This branch of the motion which seeks costs and legal fees is denied.

Accordingly, the court held that the Public Administrator is directed to file and serve a corrected schedule J and settle a decree within sixty days of the date of this decision. The decree shall discharge the surety and direct that the balance of the estate, after payment from the residuary estate of (A) fees for (1) the attorney for the Public Administrator; (2) the attorney for the executor as the nominated executor; (3) the accountant for the estate; (B) reimbursable funeral expenses to the sister; and (C) the fiduciary’s commissions and reasonable expenses, shall be distributed in equal shares among the siblings.

There are certain factors in computing the legal fees of a counsel in a probate proceeding, seek the assistance of a Nassau Probate Attorney and Nassau Estate Administration Attorney at Stephen Bilksi and Associates.

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