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[*1]


Decided on March 2, 2007
Sur Ct, Nassau County

341396
The appearance of counsel is as follows: Hyman Clurfeld, P.C. (Attorney for petitioner, Carole A. Winking) 300 Garden City Plaza, Suite 240 Garden City, NY 11530 Andrea Hyde, Esq. (Guardian Ad Litem) Putney, Twombly, Hall & Hirson LLP 1205 Franklin Avenue Garden City, NY 11530 John B. Riordan, J.
Submitted for decision is the issue of the source of payment for fees awarded to a guardian ad litem. This is a probate proceeding involving a will that "pours over" into an inter vivos trust. The court must decide whether trust assets can be used to pay all or part of the fee under SCPA 405(1). For the reasons that follow, the court finds that said fee may be paid from trust assets.
Frank DeAngelis died on January 24, 2006, a resident of Nassau County. On October 24, 2003, he had created the "Frank DeAngelis Revocable Trust U/A dated October 24, 2003." At that time, Mr. DeAngelis also executed his will, the instrument that is offered for probate. Both instruments were drafted by the decedent's long-time attorney who also supervised the execution of both documents. As is customary with estate plans of this sort, the bulk of the decedent's assets were transferred to the trust while he was alive. As a result, the will was designed to be a "catch all" so that any stray assets left in the decedent's estate would be captured and distributed in accord with the terms of the trust. The probate petition reflects a probate estate of less than $10,000.00 while the trust holds assets close to $1,000,000.00.
The guardian ad litem, who was appointed to represent the interests of the decedent's daughter, examined the circumstances surrounding the execution of both the trust and the will. In her affidavit of services the guardian ad litem stated that she spent 7.2 hours on the matter, representing a charge of $2,828.00 for services rendered.
SCPA 405(1) governs the compensation of a guardian ad litem. It provides that said fee may be "payable from any or all of the following, in such proportion as directed by the court:
a) the estate;
b) the interest of the person under disability, or
c) for good cause shown, any other party."
While SCPA 405 generally contemplates the fee of the guardian ad litem in a probate proceeding will be paid out of estate assets or the ward's share of the probate estate, the circumstances before the court justify a different result. In a probate proceeding that involves a will that pours over into a pre-existing inter vivos trust, that trust is a party to the probate proceeding either via its trustees or its beneficiaries and either as a cited or noticed party. Clearly, the responsibilities of the guardian ad litem included a review and investigation of both the will and the trust. A somewhat analogous situation was addressed by this court in Matter of Stralem, NYLJ, Jan. 5, 2001, at 33, col 3[Sur Ct, Nassau County]:
While the following is extremely unlikely to ever occur, it does present a scenario where [*2]a legal fee adjustment would be mandated. If A died leaving a testamentary estate of $100,000 and bequeathed $75,000 to B but also exercised a power of appointment over the remainder of a trust of over $100 million in favor of C where the default beneficiary was D, one can imagine a very costly probate contest brought by D and defended by C, the nominated executor. It is also not hard to imagine legal expenses far exceeding $100,000. Were the will contest to be settled between C and D, would it be appropriate to wipe out the estate in legal fees and thus extinguish B's bequest of $75,000? The answer would clearly be that it would be inappropriate.
Based on the foregoing, the court holds that the assets of the Frank DeAngelis Revocable Trust U/A Dated October 24, 2003, may be used as a source of funds to pay 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 the administration of an estate (Matter of Stortecky v. Mazzone, 85 NY2d 518 [1995]; Matter of Vitole, 215 AD2d 765 [2d Dept 1995], Matter of Phelan, 173 AD2d 621 [2d Dept 1991]). This remains true even in the event that the parties have consented to the requested fee (Matter of Stortecky v. Mazzone, 85 NY2d 518, 525 [1995]; Matter of Phelan,173 AD2d 621, 622 [2d Dept 1991].
While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority "with reason, proper discretion and not arbitrarily" (Matter of Brehm, 37 AD2d 95, 97 [4th Dept 1971]; see Matter of Wilhelm, 88 AD2d 6, 11-12 [4th Dept 1982]).
In evaluating the cost of legal services, the court may consider a number of factors. These include:
1.
the time spent (Matter of Kelly, 187 AD2d 718 [2d Dept 1992]);

2.
the complexity of the questions involved (Matter of Coughlin,

221 AD2d 676 [3d Dept 1995]) ;

3.
the nature of the services provided (Matter of Von Hofe, 145 AD2d 424
[2d Dept 1988]);


4.
the amount and complexity of litigation required (Matter of Sabatino,
66 AD2d 937 [3d Dept 1978]);


5.
the amounts involved and the benefit resulting from the execution of
such services (Matter of Shalman, 68 AD2d 940 [3d Dept 1979]);


6.
the lawyer's experience and reputation (Matter of Brehm, 37 AD2d 95
[4th Dept 1971]); and


7.
the customary fee charged by the Bar for similar services (Matter of


Freeman, 34 NY2d 1 [ 1974]; Matter of Potts, 123 Misc 346
[Sur Ct, Columbia County 1924], aff'd 213 App Div 59 [4th Dept 1925], [*3]
aff'd 241 NY 593 [ 1925]).
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 in Matter of Potts (213 App Div 59 [4th Dept 1925], affd 241 NY 593 [ 1925]), as re-enunciated in Matter of Freeman (34 NY2d 1[1974]) (see Matter of Berkman, 93 Misc 2d 423 [Sur Ct, Bronx County 1978]). Also, the legal fee must bear a reasonable relationship to the size of the estate and to the interest of the ward of the guardian ad litem (Matter of McCranor, 176 AD2d 1026 [3rd Dept 1991]; Matter of Kaufmann, 26 AD2d 818 [1st Dept 1966], aff'd 23 NY2d 700 [1968]; Martin v. Phipps, 21 AD2d 646 [1st Dept 1964], aff'd, 16 NY2d 594 [1965], Matter of Ault, 164 Misc 2d 272 [Sur Ct, New York County 1995]). Moreover, it is well-settled that time spent is, in fact, the least important factor considered by a court in fixing reasonable compensation (see Matter of Snell, 17 AD2d 490, 494 [3d Dept 1962]; Matter of Potts, 213 App Div 59, 62 [4th Dept 1925], affd 241 NY 593 [1925]; Matter of Kentana, 170 Misc. 663 [ Sur Ct, Kings County 1939]).
The guardian ad litem is entitled to a fee for his or her services rendered (SCPA 405). These factors apply equally to an attorney retained by a fiduciary or to the court-appointed guardian ad litem (Matter of Graham, 238 AD2d 682 [3d Dept 1997]; Matter of Burk, 6 AD2d 429 [1st Dept 1958]; Matter of Ault, 164 Misc 2d 272 [Sur Ct, New York County 1995], Matter of Berkman, 93 Misc 2d 423 [Sur Ct, Bronx County 1978]; Matter of Burnett, NYLJ, Aug. 31, 2006 at 31[Sur Ct, Kings County]); Matter of Reisman, NYLJ, May 18, 2000, at 34 [Sur Ct, Nassau County). Moreover, the nature of the role played by the guardian ad litem is an additional consideration in determining his or her fee (Matter of Ziegler, 184 AD2d 201 [1st Dept 1992]). Normally, the fee of a guardian ad litem is an administration expense of an estate and is paid from estate assets (but see, Matter of Stralem, NYLJ, Jan. 5, 2001, p.33, col.3 [Sur Ct, Nassau County]). However, a party may be charged with payment of the compensation of a guardian ad litem where the actions of such party generated unnecessary, unfounded, or purely self-serving litigation that resulted in the appointment of a guardian (SCPA 405, Matter of Ault, 164 Misc 2d 272 [Sur Ct, New York County 1995]).
The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services (Matter of Potts, 123 Misc 346 [Sur Ct, Columbia County 1924], aff'd 213 App Div 59 [4th Dept 1925], aff'd 241 NY 593 [1925]; see Matter of Spatt, 32 NY2d 778 [1973]). Contemporaneous records of legal time spent on estate matters are important to the court in the determining whether the amount of time spent was reasonable for the various tasks performed (Matter of Phelan, 173 AD2d 621 [2d Dept 1991]; Matter of Von Hofe, 145 AD2d 424 [2d Dept 1988]). In the absence of contemporaneous time records, little weight is given to estimates of time after the services have been performed (Matter of Phelan, 173 AD2d 621 [2d Dept 1991]). This applies to the fee of a guardian ad litem (Matter of Carbone, NYLJ, October 26, 1995, at 36, col.3 [Sur Ct, Suffolk County].
Therefore, the court approves the fee of the guardian ad litem in the amount requested, $2,828.00, and orders that it will be paid from the trust assets within (30) days of the date of this decision. This is the decision and order of the court. The court notes that a proposed decree has been served and filed. It will be signed if found to be in order. [*4]
Dated: March 2, 2007 JOHN B. RIORDAN Judge of the
Surrogate's Court

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