New York Trusts & Estates Litigation | Estate Planning and ...



1 of 1 DOCUMENTCopyright 2013 ALM Media Properties, LLCAll Rights ReservedFurther duplication without permission is prohibited New York Law JournalJuly 25, 2013 ThursdaySECTION: COURT DECISIONS; Pg. p.25, col.5 Vol. 250 No. 18LENGTH: 909 wordsHEADLINE: ESTATE OF ROSALIND K. FREY, Deceased. (2005-1324/C); DECISIONS; First Judicial Department; New York County; SURROGATE'S COURTBYLINE: Surrogate MellaBODY:COURT: Surrogate's Court, New York CountyCASE NUMBER: 2005-1324/CESTATE OF ROSALIND K. FREY, Deceased. (2005-1324/C) - Before the court is a petition brought by Herzfeld & Rubin, counsel to beneficiary, Melanie Frey, to have its legal fees fixed by the court for services rendered to Ms. Frey on matters related to her interest in the estate of her mother, Rosalind K. Frey ("decedent"). The executor of the estate, Andrea Bass, does not object to the relief requested, so long as the fees are charged to Melanie Frey's share of the estate. Jurisdiction was obtained over Ms. Frey by publication. Petitioner was engaged by Melanie Frey, a legatee under decedent's will, to assist in her claims against the estate. The record shows that Ms. Frey had been unable to obtain any distributions prior to retaining petitioner. Petitioner's assistance as counsel over approximately two years led to Ms. Frey's receiving emergency and regular distributions, loans against her legacy, and personal property from the estate that she was unable to obtain previously. After successfully obtaining Ms. Frey's requested relief, Petitioner has been unable to reach Ms. Frey and Petitioner's fees as well as expenses as counsel remain unpaid.Section 2110 of the Surrogate's Court Procedure Act authorizes this court to fix the compensation of an attorney for services rendered to a fiduciary as well as a legatee or any person interested at any time during the administration of an estate. Matter of Ullman, NYLJ, Dec. 9, 2011, at 24, col 5 [Sur Ct, NY County]. In a proceeding brought to determine compensation, the court has the authority to direct the source of such payment from the estate generally, or "from the funds in the hands of the fiduciary belonging to any legatee...." (SCPA §2110[2]).The Petitioner has supplied an affidavit in support of its petition for legal fees and that request and its supporting documentation have been reviewed for reasonableness. See Matter of Potts, 213 AD 59 [4th Dept 1925]; Matter of Freeman, 40 AD2d 397 [4th Dept 1973]. When determining reasonable fees, the court is not bound to accept the hours described by counsel. See In the Matter of Bobeck, 196 AD2d 496, 497[2d Dept 1993]. The decision of this court on reasonableness is likewise not dependant on the terms of retainer agreements. In the Matter of the Estate of Driscoll, 273 AD2d 381, 382 [2d Dept 2000].Additionally, when requesting reimbursement for disbursements, counsel must supply an affirmation "in writing that the salaries and related costs for such services were not taken into account in computing the billing rates and that it is the normal practice of the firm to bill clients separately for these disbursements." Matter of Aitken, 160 Misc. 2d 587, 591 [Sur Ct, NY County 1994]; see also Matter of Herlinger, NYLJ, Apr. 28, 1994, at 29, col 3 [Sur Ct, NY County].When determining the allocation of counsel's fee under SPCA §2110(2), the Court of Appeals has outlined factors that the court should consider:(1) whether the objecting beneficiary acted solely in his or her own interest or in the common interest of the estate; (2) the possible benefits to individual beneficiaries from the outcome of the underlying proceeding; (3) the extent of an individual beneficiary's participation in the proceeding; (4) the good or bad faith of the objecting beneficiary; (5) whether there was justifiable doubt regarding the fiduciary's conduct; (6) the portions of interest in the estate held by the non-objecting beneficiaries relative to the objecting beneficiaries; and (7) the future interests that could be affected by reallocation of fees to individual beneficiaries instead of to the corpus of the estate generally.Matter of Hyde, 15 NY3d 179, 186-187 2010]. Though the decision in Hyde specifically addresses circumstances where the fiduciary's legal fees are at issue, the underlying logic for determining who should bear the expenses is unaffected by the identity of the payee. When a beneficiary files claim, it is proper to allocate the fees of their counsel to their portion of the estate. See In re Estate of Otte, 19 AD2d 894 [2d Dept 1963] (finding that the court could direct payment for the legal services rendered to a committee for an incompetent legatee in a claim on the estate from the portion of the estate held for that legatee).Here, in pursuing her claims, Ms. Frey was not seeking to benefit or enlarge the estate, only to secure her legacy. Counsel was able to persuade the fiduciary that Ms. Frey's portion should be released. There was no possibility that the other principal legatee and executor, Ms. Bass, would benefit from Ms. Frey's claims. If the fees were billed to the estate, Ms. Bass' portion of the estate would be reduced, though she had no part in and could not have benefitted from engaging the Petitioner. Though resolution took time, there are no claims that Ms. Bass acted unreasonably in her capacity as executor. Thus, Ms. Frey is the only party that benefitted from the actions of the Petitioner and there is no reason to charge the estate for the services of the Petitioner.In accordance with the foregoing, the court fixes the Petitioner's fee at 30,467.42 and disbursements in the amount of $292.30, and directs that these be paid from the funds of the estate of Rosalind Frey being held by the executor to satisfy Melanie Frey's legacy.This decision constitutes the order of the court.Dated: July, 10, 2013LOAD-DATE: July 25, 2013 ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download