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Court Decides Guardian Ad Litem Fee


This case involves the will of Josephine H. Kempisty who is deceased. The case is a probate proceeding being held in the Surrogates Court of the State of New York in Nassau County.

Current Issue

This probate proceeding is a review of a settlement stipulation that was negotiated and crafted by the guardian ad litem that was appointed as a representative of Regina Karasinski, the sister of the decedent.

Case History

The decedent, Josephine Kempisty passed away on the fifteenth of February, 2009. A New York Probate Lawyer said she was a resident of New Hyde Park in Nassau County. She left a last will and testament that was dated the 28th of June, 2007. There were 19 statutory distributes who survived the decedent. This includes four brothers and sisters and 15 children on these siblings.

The will left the property of the decedent in three equal shares. Two of the shares were left to her sisters, Evelyn Mueller and Jane Welser. The third share was left to the niece of the decedent, Barbara LoRusso. LoRusso is the executor and petitioner. The will does not mention the decedents other sister, Regina, who has Alzheimer’s.

The 15 distributees have filed waivers of citation and jurisdiction over the remaining three parties, including Regina. There were no objections to the will raised by the distributees. The petitioner was issued preliminary letters on the 19th of May in 2009 and the letters are extended upon application.

Regina was appointed a guardian ad litem. Nassau County Probate Lawyers said the guardian issued a report that reflects the estate of the decedent has an approximate value of $570,000. Additionally, there are non-testamentary assets of $292,000, this includes $200,000 that is held in a joint account that names Barbara as the joint tenant. These joint accounts were found to have been established by Barbara who used power of attorney as executed by the decedent. Additionally, the guardian ad litem discovered that the will had been prepared by an attorney who received instructions over the telephone from Barbara and the execution of the will was not supervised. There were serious questions raised about the competency of the decedent at the time the will was executed.

The guardian ad litem communicated his objections to the petitioner’s attorney and a settlement was negotiated. The settlement includes a payment of $90,125 to Regina from the personal funds of the petitioner. Long Island Probate Lawyers said as the settlement agreement does not have any effect on the distributions provided by the will it is unnecessary to seek the approval from the other legatees. The amount of the settlement is calculated to be close to the amount that would have been payable to Regina as an intestate share of the probate and non-testamentary property. The settlement stipulation as negotiated is approved by the court.

The other issue that is addressed by the court is the fee for the guardian ad litem. Ultimately, legal fees are typically charged to the estate and the court has the discretion to determine an appropriate amount. It is determined after careful consideration that the guardian ad litem will be awarded the amount of $17,000. This amount will be paid out of the general assets of the estate within thirty days of the letters of administration being issued to the petitioner.

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