Published on:

Court Asked to Rule on the Issue of Kinship


A New York Probate Lawyer said that, in this accounting by the Public Administrator of Nassau County as administrator of the decedent’s estate, the issue of kinship was referred to a referee pursuant to SCPA 506. All parties stipulated to waive the report of the referee and to allow kinship issues to be decided by the court based upon the transcripts of the hearing, the documentary evidence and the arguments made by the attorney for the claimants and the guardian ad litem representing the interests of missing and unknown persons. Also before the court is the settlement of the Public Administrator’s account for the period from August 26, 2005 to August 31, 2007, as brought current through August 31, 2009, as well as the legal fees of the guardian ad litem. The guardian ad litem has filed a report dated April 23, 2010 in which she states that she has no objections to the account as brought current and which she finds to be complete. In her report, the guardian ad litem also makes certain conclusions regarding kinship that are discussed below.

A New York Will Lawyer said that, the decedent died intestate, a resident and domiciliary of Nassau County, on August 26, 2005. Letters of administration issued to the Public Administrator on October 7, 2005. The account, as brought down to date, shows total charges of $621,723.92, total credits of $147,469.51 and a balance on hand of $474,254.41. Objections to the account were filed by two individuals who claim to be distributees of the decedent. They objected to 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 asked for a hearing to establish kinship.
The issue in this case is whether the claimant’s objection to 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 asked for a hearing to establish kinship should be granted.
In order to establish their rights as distributees, the claimants in a kinship proceeding must prove: (1) their relationship to the decedent; (2) the absence of any person with a closer degree of consanguinity to the decedent; and (3) the number of persons having the same degree of consanguinity to the decedent or to the common ancestor through which they take. Claimants who allege to be distributees of the decedent have the burden of proof on each of these elements. The quantum of proof required to prove kinship is a fair preponderance of the credible evidence.

A Nassau County Probate Lawyer said 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 SCPA 2225. Therefore, based upon the evidence before the court, it is held that the decedent, was survived by two distributees: a half-sister, and a half-brother. Pursuant to EPTL 4-1.1(a)(5), the whole of the decedent’s property passes equally to them.
Turning to the accounting, the Public Administrator’s request to deny the claims is granted. These individuals and entities were cited to show cause why their claims should not be denied, and all of them failed to appear in the proceeding.

Staten Island Probate Lawyers said 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”.

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. Additionally, 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.

Queens Probate Attorneys 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.

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.

In the citation, supplemental citation and the petition, the Public Administrator requests that the court fix his counsel’s fees in the approximate amount of $47,103.75, of which $35,527.50 has been paid and approximately $11,576.25 remained unpaid. Of the $11,576.25, $1,576.25 was for unpaid legal fees for services already performed and $10,000.00 was for estimated future legal fees, as reflected respectively in schedules C and C-1 of the accounting. The affidavit bringing account current, sworn to on December 1, 2009, shows the amount of $1,576.25 was paid, bringing the total paid to $37,103.75 and that since May 1, 2007 approximately $22,936.25 in additional fees was incurred, bringing the total fees incurred, exclusive of the real estate matters, to $60,040.00. However, in the affirmation of legal services, counsel for the Public Administrator asks that the court fix legal fees in the reduced amount of $45,000.00, exclusive of the fee received for the real estate matters, of which $37,103.75 has been paid and $7,896.25 has not been paid. Counsel expended more than 340 hours on matters involving the estate at hourly rates ranging from $200.00 to $350.00 for attorneys and from $125.00 to $175.00 for paralegals.

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 administration and accompanying papers; collecting estate assets; investigation of kinship; 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. Counsel also spent an extensive amount of time successfully defending a proceeding for the revocation of the letters of administration issued to the Public Administrator.
With respect to the sale of the two parcels of real property, in each instance, counsel reviewed the title report and cleared 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.

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 $45,000.00, plus $3,000.00 for services rendered with respect to the sales of the two parcels of real property, for a total fee of $48,000.00. Counsel for the Public Administrator also requests approval of disbursements in the amount of $32.68, of which $27.88 for international certified mail is approved and $4.80 for postage is not approved.
The guardian ad litem has submitted an affirmation of legal services. In it, she states that she expended more than 30 hours 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, and prepared the guardian ad litem report. Based upon the criteria established by Matter of Freeman and Matter of Potts as applied to guardian’s ad litem, the court awards the guardian ad litem the fee of $9,000.00. The guardian ad litem’s fee shall be paid within thirty (30) days from the date of the decree to be entered.

The Public Administrator’s request for reasonable and necessary expenses of the office of the Public Administrator in the amount of $5,920.15 is approved, pursuant to SCPA 1201(4). With respect to accountant’s fees, normally, an accountant’s services are not compensable from 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.

The accounting firm has submitted an affidavit of services requesting fees totaling $4,475.00, of which $3,900.00 was paid and $575.00 for additional estimated billing to prepare the final fiduciary tax return is unpaid. The affidavit and attached invoices show that the accounting firm, CPAs, PC, prepared the decedent’s personal income federal and state income tax returns for 2002, 2003, 2004 and 2005, prepared the estate’s federal and state fiduciary income tax returns for the years ending July 31, 2006, July 31, 2007, July 31, 2008 and July 31, 2009. 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 accounting firm, CPAs, P.C., in the requested amount of $4,475.00, which amount includes $575.00 estimated to prepare the final fiduciary tax return. Commissions are approved subject to audit.

In the court’s file is a claim against the estate by Nassau County Department of Social Services in the amount of $31,215.35. A contingent and possible claim in the amount of $40,289.00 by the Department is listed on schedule D of the account. However, the actual claim was filed after the period of the account. Accordingly, the Public Administrator is directed to file by August 11, 2010 an affirmation bringing the account down to date, on notice to all parties, with respect to the status of the claim by the Department of Social Services and any other matters pertinent to the account. The additional requests for relief contained in the petition will be addressed by the court after the affirmation is filed.

If you have a legal right to claim on the estate of the decedent, seek the help of a Nassau Estate Litigation Attorney and Nassau Estate Administration Attorney at Stephen Bilkis and Associates in order to know how you can enforce your right.

Contact Information