By: Jennifer F. Hillman, Esq.
When the nominated executor under a will is also the attorney-draftsman (or an employee of that attorney) additional disclosures are necessary to assure that the nominated executor will receive their full statutory commissions. Pursuant to New York Surrogate’s Court Procedure Act (“SCPA”) § 2307-a, the testator must sign an additional disclosure 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).
SCPA 2307-a applies to all wills executed after January 1, 1996, and to all decedents dying after December 31, 1996. The statute applied retroactively so that attorney-draftsmen nominated as executors under wills where the testator had not yet passed were required to track down the testators to obtain the disclosures. However, the statute did provide some discretion to the Court where good faith efforts to find testators (to no avail) had been shown.
Notably, for a three-year period from November 2004 through August 2007, SCPA 2307-a contained an inconsistency: paragraph 1 detailed all four necessary disclosures in subparagraphs (1)(a)-(d), but the model language in paragraph 3 only referred to three of the disclosures. Missing from paragraph 3 was the disclosure that an attorney is only entitled to one-half of the commission they would otherwise be entitled if the disclosure is not executed as detailed in SCPA 2307-a (1)(c).
From time to time, the Surrogate’s Court is faced with the issue of how to deal with wills and SCPA 2307-a disclosures executed while this inconsistency existed. There has been some disagreement among the Surrogate’s Courts of the various counties concerning the outcome where the disclosures made during this time period were incomplete. However, most courts found that all four disclosures were needed for there to be full compliance, and only awarded the attorney-executor with one-half of the commissions otherwise due. See e.g. Matter of Tackley, 13 Misc. 3d 818, 821, 821 N.Y.S.2d 750 (Sur. Ct. New York County 2006); cf. Matter of Riley, 29 Misc. 3d 1059, 908 N.Y.S.2d 534 (Sur. Ct. Oneida County 2010).
It appears that this issue still remains a problem today for even later-executed wills. Matter of Indiviglia, N.Y.L.J., June 26, 2013, at 22, col. 5 (Sur. Ct. Bronx County), concerned a will executed in 2012 which nominated the attorney-draftsman as executor and a SCPA 2307-a disclosure which was executed separately on a different date. The document did not include the disclosure within SCPA 2307-a (1)(c) which had previously been omitted from paragraph 3 until 2007 (but which had always appeared in paragraph 1).
In reviewing the will, the Surrogate’s Court was satisfied that the will was properly executed and could be admitted to probate, but the attorney-executor was only granted one-half of the statutory commission due to the noncompliance with the statute.
This case is a cautionary tale for all estate practitioners. All forms must be regularly reviewed and updated. Attorneys must also make certain they are up-to-date with all revisions to the Surrogate’s Court Procedure Act or the Estate Powers and Trusts Law.
Jennifer F. Hillman is an attorney at Ruskin, Moscou Faltischek, P.C., Uniondale, New York, where her practice focuses in the area of trust and estate litigation. She can be reached at firstname.lastname@example.org