By Jennifer F. Hillman, Esq.           

In the past, I have written about the additional disclosures necessary when the nominated executor under a will is also the attorney-drafter (or an employee of that attorney).[i]  If an attorney-executor fails to comply with the requirements of New York Surrogate’s Court Procedure Act (“SCPA”) §2307-a, they forfeit one-half of their statutory commission.  

In Matter of Goodman, NYLJ 1202727785614 at *1, the New York County Surrogate’s Court reviewed some of the more practical procedural issues related to SCPA §2307-a disclosures, including who can object to a nominated executor’s failure to comply with the statute and when the objection should be made.  

As it is currently written, SCPA 2307-a requires an attorney-drafter who is also the nominated executor to obtain a disclosure from the testator stating: (i) they were advised as to who is eligible to serve as executor; (ii) that absent an agreement to the contrary, an executor is entitled to statutory commissions; (iii) that if the disclosure is not executed, the attorney-executor will only receive one-half the commission he or she would otherwise be entitled to receive; and (iv) an attorney who acts as executor and also provides legal services in connection with their executorial duties may be entitled to receive statutory commissions as well as reasonable compensation for their legal services. SCPA 2307-a(1)(a)-(d).  The language of the disclosure must “substantially conform” to the model language. 

Pursuant to the statute, the determination of compliance “shall be made in a proceeding for the issuance of letters testamentary to an executor-designee” which occurs during a probate proceeding.  SCPA 2307-a(7).  Yet, that proceeding may not include the same interested persons who would later object to commissions.  

A probate proceeding focuses on the admissibility of a will to probate, as well as the issuance of letters to a fiduciary.  The persons interested are those who have an interest in contesting the validity of a will.  After the will is admitted to probate and letters have issued, an executor’s accounting proceeding gives persons with a financial stake in the estate an opportunity to object to the actions of the fiduciary, including the amount of any commission to be paid.  Matter of Goodman highlights the issues which arise when individuals with a financial stake in an estate were not joined as parties in the probate proceeding.  

In Matter of Goodman, when the initial probate proceeding was brought the only persons joined were the decedent’s sole distributees (her parents) who waived service of process.  The named beneficiaries under the will, including the charities and the Attorney General on behalf of the ultimate charitable beneficiaries, were entitled only to notice of probate.  Notice of probate does not require those individuals to take any affirmative action.  More importantly, notice of probate does not require formal service of process pursuant to SCPA §307.  See also SCPA §1409.  For this reason, the individuals are not joined as parties and the court does not obtain jurisdiction over them.  There is nothing in the notice of probate to otherwise alert the recipients of a potential issue under SCPA §2307-a.  

Once the accounting proceeding was filed, the charities and the Attorney General appeared and filed objections to the executor’s proposal to pay himself a full commission.  The executor sought to dismiss the objections based upon the plain language of SCPA 2307-a(7).  He argued that because the parties did not object to the commissions in the probate proceeding, they were barred from doing so in the accounting proceeding.  

Upon review, the New York County Surrogate’s Court found that if the court were to accept that interpretation of SCPA 2307-a, “it would be constrained to find the statute in violation of the due process clause of the Fourteenth Amendment to the United States Constitution, and section 6 of article 1 of the Constitution of the State of New York.”  Under that interpretation, persons with a property interest would not be given notice and an opportunity to be heard on the issue.     

The court noted that other Surrogates have fashioned procedures to insure a fair and meaningful determination when this legal limbo occurs.  For example, where a proponent has explicitly asked for such a determination in a probate proceeding, courts have directed that all interested parties be served and joined in the proceeding.  See Matter of Tores, NYLJ June 19, 2002 at 20, col. 1 (Surr. Ct. Bronx Co.).  Courts have also reviewed the adequacy of the disclosure in a subsequent accounting procedure.  See e.g., as cited in the decision Matter of Fleshler, 176 Misc2d 583 (Surr. Ct. Bronx Co. 1998); Matter of Parker, NYLJ, August 4, 1999, at 26, col. 5 (Surr. Ct. Suffolk Co.).  

The court found that the charities and Attorney General were not given notice and an opportunity to be heard on the issue of commissions in the probate proceeding and that the issue was properly raised in the accounting proceeding. 

 After turning to the merits of the objection, the court found that the disclosure offered by the attorney-executor did not “substantially conform” to the statutory requirements and limited his commissions to one-half of the statutory commission.  The court separately reviewed objections to the legal fees sought by the attorney-executor.           

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Jennifer F. Hillman is partner at the law firm of Ruskin Moscou Faltischek, P.C. in Uniondale, New York where her practice is focused on trusts and estates litigation.  Check out her bio at http://rmfpc.com/attorneys/jennifer-f-hillman.  Ms. Hillman can be reached at jhillman@rmfpc.com.