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Court Rules on Stipulation of Settlement


In connection with a petition for probate, the court has before it for review a stipulation of settlement which was expertly negotiated and crafted by the guardian ad litem appointed to represent the interests of decedent’s sister.

A New York Probate Lawyer said that decedent, a resident of New Hyde Park, Nassau County, died in February 2009, leaving a last will and testament. She was survived by 19 statutory distributees, including four siblings and the 15 children of four predeceased siblings.

The propounded instrument leaves all of decedent’s property in three equal shares, two of which pass to decedent’s sisters. The will directs that the third equal share be paid over to decedent’s niece, who is the nominated executor and the petitioner herein. It makes no mention of decedent’s third surviving sister, who suffers from Alzheimer’s disease.

Thereafter, a New York Will Lawyer said waivers of citation were filed on behalf of 15 distributees, and jurisdiction was obtained over the remaining three interested parties. None of the distributees raised objections to the will. Preliminary letters issued to petitioner on May 19, 2009 and the letters have been extended upon application.

A Staten Island Probate Lawyer said the court appointed a guardian ad litem on behalf of the third surviving sister. The report reflects that the probate estate was valued at approximately $570,000.00 and that there were non-testamentary assets of $292,000.00, including $200,000.00 held in joint accounts which named the petitioner, as the joint tenant. The guardian ad litem also discovered that petitioner had established these joint accounts using a power of attorney executed by decedent. He further learned that the propounded will had been prepared on the basis of telephoned instructions from petitioner to an attorney, and that the will execution had not been supervised by an attorney.

The guardian ad litem communicated his potential probate objections to the attorney for petitioner and they then negotiated a settlement. The stipulation provides that petitioner will pay $90,125.00 out of her own personal funds to the third sister; the propounded instrument will be admitted to probate.

Queens Probate Lawyers said the ultimate responsibility for approving legal fees that are charged to an estate lies with the court, which has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of the administration of an estate. This remains true even in the event that the parties have consented to the requested fee. 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: 1.the time spent; 2. the complexity of the questions involved; 3. the nature of the services provided; 4. the amount and complexity of 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.

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 a case law. Also, the legal fee must bear a reasonable relationship to the size of the estate and to the interest of the ward of the guardian ad litem. Moreover, it is well-settled that time spent is, in fact, the least important factor considered by a court in fixing reasonable compensation. These factors 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.

A sizeable estate permits adequate compensation, but nothing beyond that. A large estate does not, by itself, justify a large fee. Moreover, the size of the estate can operate as a limitation on the fees payable, 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 the determining whether the amount of time spent was reasonable for the various tasks performed. In the absence of contemporaneous time records, little weight is given to estimates of time after the services have been performed. This applies to the fee of a guardian ad litem.

The guardian ad litem has submitted a detailed affidavit of services and contemporaneous time records. These indicate that he devoted in excess of 41 hours to this matter. He examined the court record, conducted meetings in person and by telephone with the draftsperson of the will, requested, received and reviewed extensive documentation concerning decedent’s financial records and health, searched the records of the Nassau County Clerk and the website of the New York State Comptroller’s Office, corresponded with his ward’s children, corresponded with decedent’s doctor, prepared HIPAA authorizations and obtained and reviewed medical records, conducted research regarding the valuation of decedent’s assets, negotiated and prepared the stipulation filed with the court, and prepared his report. The fee is fixed in the amount requested by the guardian ad litem, $17,000.00, which shall be paid out of the general assets of the estate within 30 days of the issuance of full letters of administration to petitioner. The court thanks the guardian ad litem for his fine work and the outstanding result achieved on behalf of his ward.

Engaging in the practice of law is a noble profession and not a business. Here in Stephen Bilkis and Associates, our Nassau County Estate attorneys charge our clients reasonably. We make it a point that we bill in accordance with the efforts made and the difficulty of the subject matters. For the probate of a last will and testament, you can consult our Nassau County Probate lawyers. We will be glad to help you to the best of our abilities. Don’t take chances, call us now.

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