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Court Determines Fee to be Paid to Guardian Ad Litem


A New York Probate Lawyer said that, the decedent, died a resident of Nassau County on March 2, 2007, leaving a last will and testament dated June 4, 1993. A petition for probate was filed by a legatee under the will who was related to the decedent by marriage. By order dated February 1, 2010, the court appointed a guardian ad litem to represent the interests of decedent’s missing and unknown distributees. On February 3, 2012, the guardian ad litem filed his report recommending that the will be admitted to probate. At that time, he also filed an affirmation of services. At the request of the court, the guardian ad litem filed a supplemental affirmation on July 24, 2012.

A New York Will Lawyer said the issue in this case is the determination of the fee payable to the guardian ad litem.

Long Island Probate Lawyers said 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 the administration 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”.

A Queens Probate Attorney said the guardian ad litem is entitled to a fee for his or her services rendered (SCPA 405). The factors considered by the court in determining the fee apply equally to an attorney retained by a fiduciary or to the 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. Normally, the fee of a guardian ad litem is an administration expense of an estate and is paid from estate assets.

In evaluating the cost of legal services, the court may consider a number of factors. These include: (1) the time spent; (2) the complexity of the questions involved; (3) the nature of the services provided; (4) the amount and complexity of the litigation required; (5) the amounts involved and the benefit resulting from the execution of such services; (6) the lawyer’s experience and reputation; and (7) the customary fee charged by the Bar for similar services.

The petitioner originally submitted an affirmation of legal services which, while detailed, did not include any time records. This report reflected that the guardian ad litem provided a total of 71.15 hours of services. At a billable rate of $275.00 per hour, the fee totaled $19,566.25, which was then discounted by $8,566.25, bringing the requested fee down to $11,000.00. The affirmation indicates that none of the hours of services which were billed reflect time spent preparing the affirmation.

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.

The court requested additional information concerning the time spent by the guardian ad litem in providing services. In response, the guardian ad litem submitted a supplemental affirmation, but this, too, did not contain contemporaneous time records. Instead, it consisted of a one-page summary of the 71.15 hours devoted to accomplishing various tasks.

The petition for probate reflects an estate consisting of personal property of $166,000.00 and improved real property valued at $355,000.00, for a total estimated value of $521,000.00. In his report, the guardian ad litem provides an updated estate value of $505,695.00. The fee requested by the guardian ad litem, even after the substantial voluntary discount of 43%, would constitute a fee in excess of two percent of the gross estate. Although due diligence was required in searching for the decedent’s missing and unknown distributees, the probate proceeding was otherwise fairly standard, and it involved no litigation. The guardian ad litem, however, spent more than 70 hours in fulfilling his responsibilities, including approximately 40 hours preparing his 14-page report.

It is well established that the size of the estate can operate as a limitation on the fees payable, without constituting an adverse reflection on the services provided. While the court appreciates the excellent and thorough services provided by the guardian ad litem, in setting his fee, the court is limited by the nature of the proceeding and the size of the estate.

Accordingly, the fee of the guardian ad litem is fixed in the amount of $6,975.00, which shall be paid within 30 days of the issuance of a probate decree. This decision constitutes the order of the court and no additional order need be submitted.

If you have an issue regarding the administration of the estate seek the assistance of a Nassau Estate Administration Attorney and Nassau Probate Attorney at Stephen Bilkis and Associates.

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