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Court Decides a Case Regarding Kinship Issues


A New York Probate Lawyer said this is a case of accounting of the Public Administrator, where the issue of kinship was referred to a court attorney/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 attorneys for the claimants and the guardian ad litem representing the interests of unknown distributees.

A New York Will Lawyer said that the decedent died intestate, a resident of Nassau County, in May 2006. Letters of administration issued to the Public Administrator in January 2007. The account filed by the Public Administrator shows the receipt of $354,397.29 of estate assets. There are three alleged maternal cousins of the decedent and seven alleged paternal first cousins of the decedent.

Long Island Probate Lawyers said that in order to establish their rights as distributees, 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.

Brooklyn Probate Lawyers said the record reflects a diligent and exhaustive search was rendered to discover evidence of other possible distributees. As 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 is survived by ten (10) distributees, three maternal first cousins, and seven paternal first cousins.

Pursuant to EPTL 4-1.1(a)(6), one-half of the decedent’s property passes to the issue of paternal grandparents, by representation, and one-half to the issue of maternal grandparents, by representation.

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.

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. 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 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 disbursements, the tradition in Surrogate’s Court practice is that the attorney may not be reimbursed for expenses that the court normally considers to be part of overhead, such as photocopying, postage, telephone calls, and other items of the same matter, the court discussed the allowance of charges for photocopies, telephone calls, postage, messengers and couriers, express deliveries and computer-assisted legal research.

The court concluded that it would permit reimbursement for such disbursements only if they involved payment to an outside supplier of goods and services, adopting the standards set forth in previous case. The court prohibited reimbursement for ordinary postage and telephone charges other than long distance.

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. “[T]he 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.

Considering all of the factors used to determine the reasonableness of fees, the court fixes the fee of counsel for the Public Administrator in the amount of $22,407.50, all of which has been paid, as fair and reasonable compensation for services rendered.

Concerning the accountant’s fee, the accountant has submitted an affidavit of services requesting a fee of $4,125.00, of which $2,975.00 has been paid and $1,150.00 remains unpaid. The affidavit indicates that the accountant prepared the decedent’s personal income tax return returns and fiduciary income tax returns for the estate through 2010. The work performed by the accountant was not duplicative of the services rendered by the estate attorney and the requested amount of these services is reasonable. Thus, the court approves the fee in the amount of $4,125.00, of which $1,150.00 remains unpaid.

The guardian ad litem has supplied the court with an affidavit of services, and it shows that he rendered approximately 23.20 hours of legal services. The guardian ad item reviewed the account, the petition and family trees. The guardian ad litem requested additional documentary evidence and received and reviewed such documents. He attended the kinship hearing on two separate dates and prepared his report. Considering all of these factors, the court believes the sum of $6,000.00 is fair and proper compensation for the services rendered by the guardian ad litem.

Here in Stephen Bilkis and Associates, our Nassau County Estate attorneys will help you draft your last will and testament so that when the time that there will be no difficulty when the said document will be presented for probate. We also have Nassau County Probate lawyers, who will represent your executor before the courts when a probate petition was already filed.

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