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Court Discusses Reasonable Attorney’s Fees in Probate Case


A New York Probate Lawyer said that, submitted for decision in this accounting proceeding are the issues of (i) attorney’s fees; (ii) accountant’s fees; and (iii) commissions. The decedent, died on February 26, 1996, a resident of Nassau County, leaving a will dated March 9, 1984. The will was admitted to probate by decree dated May 18, 2004, and letters of administration issued to the Public Administrator on the same date. The summary statement shows charges to the accounting party of $289,650.33. This is the Public Administrator’s first and final accounting. The decedent’s will, after the payment of a $2,000.00 bequest to Mercy Hospital, Rockville Centre, New York, directs that the decedent’s residuary estate be paid to the Diabetes Association of New York, Inc. The Attorney General of the State of New York has appeared in this proceeding.

The issue in this case is whether the accounting matters in this probate proceeding should be granted.

A New York Will Lawyer said with respect to the issue of attorneys’ 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 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”.

Suffolk County Probate Lawyers said 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, without constituting an adverse reflection on the services provided.

Nassau County Probate Lawyers 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 accountants’ fees, normally, an accountant’s services are not compensable out of 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 case, the Public Administrator’s attorney has supplied the court with an affirmation of legal services, and it shows that the attorneys rendered more than 167 hours of legal services of a partner, associates and paralegal at various hourly rates. The services the firm performed included: (a) preparation and filing of the petition for temporary letters of administration and the cross-petition for probate and letters of estate administration together with the accompanying affidavits and required ancillary documents; (b) preparation and filing of the renunciation of nominated executor and multiple waivers of process and consent to probate for numerous distributees and legatees; (c) obtaining the Public Administrator’s fiduciary bond; (d) review of known family information and research as to whereabouts of alleged distributees, (e) preparation and filing of an affidavit of heirship; (f) arranging for service of process of probate citations and preparation and filing of an affidavit requesting substituted service; (g) preparation and filing of proposed probate decree; (h) attendance at the probate citation return date; (i) preparation of a receipt, release and refunding agreement for Mercy Medical Center a/k/a Mercy Hospital, a specific legatee under decedent’s will and conversations with its administrative and legal personnel regarding same; (j) preparation and filing of the Public Administrator’s final account and the petition for judicial settlement of account; (k) arranging for service of accounting citation and ensuring adequate service of same to secure jurisdiction over all interested parties; (l) multiple telephone conferences and correspondence with various attorneys and the Public Administrator of Nassau County and the employees of such office. The firm also handled the sale of the decedent’s cooperative apartment and charged a flat fee of $1,500.00 in connection with the sale.

The total fee of counsel to the Public Administrator amounts to $26,937.00. Due to the modest size of the estate, counsel asks the court to approve a fee (exclusive of the real estate matter) in the reduced amount of $17,323.75, of which $12,823.75 has been paid and $4,500.00 of which remains unpaid. A review of the time records shows some duplication on the part of the attorneys at the firm. Nevertheless, the reduction in fee more than covers this amount.

Considering all these factors, the court believes the proposed fee to be reasonable. Therefore, the court approves a total fee of counsel to the Public Administrator in the sum of $18,823.75, inclusive of the fee for the co-op closing, as fair and proper compensation for the services rendered.

Concerning the accountant’s fee, the accountant has submitted an affidavit of services requesting a fee of $7,250.00, of which $6,675.00 has been paid and $575.00 remains unpaid. The affidavit indicates that the accountant prepared the federal and New York State fiduciary income tax returns for the years 1996 through 2008. The work performed by the accountant was not duplicative of the services rendered by the estate attorney and the requested amount for these services is reasonable. Thus, the court approves the accountant’s fee in the amount of $7,250.00, of which $575.00 remains unpaid.

The commissions of the Public Administrator are approved subject to audit. The net residuary estate, after the foregoing payments, shall be distributed to the American Diabetes Association (formerly known as the Diabetic Association of New York, Inc.), the sole residuary legatee under the will.

In order to properly calculate the accounting fees in a probate proceeding, you will need the help of a Nassau Probate Attorney and Nassau Estate Litigation Attorney at Stephen Bilkis and Associates. Call us for free legal advice.

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