These days, my practice focuses almost exclusively on estate litigation, surrogate’s court practice, and adult guardianship. However, I used to do estate planning.
My office created a descent and distribution diagram to aide estate planning clients in visualizing the difference between per capita, per stirpes, and by representation.
Continue Reading My Office’s Descent and Distribution Diagram
The Westchester County Surrogate’s Court now permits reimbursement from the estate to counsel for executors and administrators for Federal Express charges incurred, a change to the court’s past practices, potentially setting off a broader trend reflecting technological changes in the courts and new communications customs resulting from Covid-19.
In Estate of Patt (2015-784/A), Surrogate Brandon R. Sall issued an Amended Decision dated February 16, 2021 allowing the law firm of Schupbach, Williams & Pavone, LLP to be reimbursed for $109.88 in Federal Express charges from the decedent’s estate.
The law firm had represented the administrator of the estate, who sought to judicially settle her account. An application was made by the law firm for reimbursement for fees and disbursements. Included in the firm’s request for disbursements were charges for FedEx in the amount of $109.88.
Surrogate Sall explained that “historically, this court has not permitted reimbursement of such charges to counsel, as it has considered Federal Express and the like to be a component of office overhead, which is not reimbursable.”
Indeed, attorneys cannot charge to the estate items of law office overhead, such as messenger services and postage, according to New York Estate Administration, 2020 Edition at § 13.02[b] on page 465.
Surrogate Sall reasoned that, however, “in today’s world, overnight mail service offers many advantages. It gives the sender the ability to track mailing and confirm delivery, while also giving attorneys the confidence to forego in-person court filing.”
Retrieving an original copy of a death certificate in New York City usually isn’t a big challenge, but it can be if the client’s degree of kindred to the decedent is too remote, like a cousin.
In my practice, the issue often comes up when the client is a cousin and an alleged heir in a kinship proceeding in one of the five boroughs of NYC. As a cousin, the client may be an “entitled party“, but they are not an entitled party with automatic right to a death certificate in NYC.
The solution? The Vital Records Attorney Protocol has always made obtaining an original copy of a death certificate in NYC for my clients fairly seamless.
The Kings County Surrogate’s Court prohibits petitioners from stating “any further relief requested” in the form JA-10 (1/2004) Petition for a Compulsory Accounting and Related Relief SCPA 2205.
The form JA-10, entitled “Petition for a Compulsory Accounting and Related Relief SCPA 2205 (emphasis added)” includes a provision on page 1 that reads: “[NOTE: Complete Paragraph 6 IF relief requested is in addition to a compulsory accounting.]”
Paragraph 6 gives the petitioner extra space to “[State any further relief requested]”.
However, I recently submitted the form JA-1 petition in Kings County Surrogate’s Court, with further relief requested, but I was advised by the Accounting Department that further relief cannot be requested and that portion of the form must be left blank in Kings County.
Probating a will which exercises a power of appointment may mean more work than usual before jurisdiction is marked complete.
Pursuant to Uniform Rule 207.19(d):
In a probate proceeding where the will purports to exercise a power of appointment, a copy of the instrument creating the power of appointment must be furnished, and the petition for probate shall list those named in said instrument who are adversely affected by the probate of such will. Jurisdiction shall be acquired over such persons in the same manner as over distributees.
Estate planners should probably mull over this rule and its consequences before drafting a will purporting to exercise a power of appointment.
