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Court Decides on Executor’s Accounting


A New York Family Lawyer said that, before the court is the first and final account of the Public Administrator of Nassau County for the estate of the decedent who died intestate, a resident of Great Neck, New York, on August 8, 2006. Letters of administration issued to the Public Administrator on April 19, 2007; the petition and account were initially filed on November 6, 2009. The petition identifies a combined total of 29 alleged maternal and paternal first cousins. A guardian ad litem was appointed by the court to represent the interests of decedent’s missing or unknown distributees. Kinship hearings were conducted before a referee on September 23, 2010 and November 16, 2010. Over 130 exhibits were admitted into evidence at the hearings, and an additional 14 exhibits were admitted after the hearing on the consents of counsel and the guardian ad litem. Testimony was taken from a professional genealogist and several members of decedent’s family, both blood relatives and those related by marriage.

A New York Custody Lawyer said that, the account as filed shows total charges of $830,114.16, and total credits of $123,505.94. The account was filed in November 2009 and must be brought current. The executor seeks approval of the accounting, approval of commissions, the fixing of fees for the services of the attorney and accountant. In addition, the court must address the outcome of the two kinship hearings, set the fee for the guardian ad litem and release the administrator from the surety bond.

A Nassau County Family Lawyer said that, the testimony at the kinship hearings and the exhibits admitted into evidence are testament to the extraordinary efforts expended by counsel to the Public Administrator, the genealogist, and the attorney for the claimants to identify all of the heirs of this very extended and extraordinary family. The court notes that the family tree prepared for the paternal side of the decedent’s family is nearly seven feet in length; the family tree for the maternal side is over ten feet in length. The court will also take judicial notice that records of vital statistics in the 19th and early 20th centuries for African-American families in the Deep South, where decedent and many of her ancestors and other relatives were born, are often incomplete or non-existent.

The issue in this case is whether the court should approved the executor’s accounting, commissions, and the fixing of fees for the services of the attorney and accountant.

In order to establish their rights as distributees, the 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. The quantum of proof required to prove kinship is a fair preponderance of the credible evidence.

It is well established that the size of the estate and the degree of the relationship will affect the extent of a diligent search in a kinship or status hearing. As indicated above, the voluminous records admitted into evidence, including the reports of the professional genealogist, are testament to the efforts expended to locate and identify the decedent’s distributees. The court finds that a diligent and exhaustive search was rendered by counsel to the Public Administrator to discover evidence of all of decedent’s distributees.

A Nassau County Child Custody Lawyer said regarding the fee of the attorney for the estate and the fee of the guardian ad litem, 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. Also, the legal fee must bear a reasonable relationship to the size of the estate. The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services.

The court has carefully reviewed counsel’s affirmation of services and the time records submitted to the court and notes that neither the claimants’ counsel nor the guardian ad litem has objected to counsel’s fee. 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 record shows that the attorney’s actual billable time on this matter amounts to $49,767.00. Counsel requests that its fee be allowed in the sum of $49,500.00. The services provided by the attorney included petitioning for letters of administration; identifying and collecting decedent’s assets; preparing the final accounting, participating in two kinship hearings and conducting the extensive and exhaustive searches and interviews described above, which all inured to the benefit of the claimants in this case as the court was able to identify them as the decedent’s distributees. The court commends the counsel for their skillful representation of the Public Administrator and the exhaustive efforts described above. The fee is approved in the amount requested.

The court has also been asked to review the accountant’s fees. Typically, an accountant’s services are not compensable from 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. The accountant has submitted an affidavit of services requesting a fee of $4,650.00, of which $3,500.00 has been paid and $1,150.00 remains unpaid. The affidavit and supporting documents indicate that the accountant prepared the decedent’s individual federal and state income tax returns for the years 2003, 2004, 2005 and 2006, as well as the federal and state fiduciary income tax returns for the years ending July 31, 2007 through July 31, 2010. Two additional returns will therefore be necessary. 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. The court approves the fee in the amount $4,650.00, of which $3,500.00 has been paid and $1,150.00 remains unpaid.

The guardian ad litem for unknown heirs has submitted his report and affidavit of services. They show that he spent 26.8 hours on the matter, including attendance at both kinship hearings. The guardian ad litem does not indicate his customary billing rate, asking simply that the court grant a fair and reasonable fee for his services. The guardian ad litem reviewed the accounting and rendered a report on the kinship hearing, which, due to the number of first cousins on both sides of the family, was considerably more complicated than typically encountered.

Considering all of the foregoing, the court awards the guardian ad litem a fee in the sum sought, $7,500.00, which shall be paid within thirty (30) days of the date of the decree to be entered herein.

The court notes that none of the interested parties have otherwise objected to the account. Thus, the account is approved. The commission of the Public Administrator and the expenses of his office are approved subject to audit. The decree shall discharge the surety and shall authorize the Public Administrator to distribute the balance of the net estate, after payment of the above fees, in accordance with EPTL 4-1.1 equally to the distributees or their legal representatives as aforesaid. The Public Administrator is directed to settle a decree within 60 days hereof, along with an affidavit bringing the account down to date.

In a probate proceedings, if you have issues regarding the heirs entitled to the estate, seek the advice of a Kings Family Attorney and Kings Order of Protection Attorney at Stephen Bilkis and Associates. Call us now.

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