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Paralegal 101: When Brokers Are Heirs Handling Family Estates

Paralegal 101: When Brokers Are Heirs Handling Family Estates

Get an attorney, get an attorney, get an attorney... (LOL). This is not legal advice, it's just a few points of order you need to keep in mind because the death of a loved one can be emotionally numbing. I am going to quote and cite a few useful court cases as bite sized illustrations (feel free to Google your own research and make sure you speak with an attorney regarding your estate issues):

"If there are sufficient assets in the estate to pay all estate obligations' (i.e., administration and funeral expenses, debts, estate taxes and general dispositions...) without invading property specifically devised or bequeathed, such general assets must be used to pay those obligations; but if the estate assets exclusive of the property specifically devised or bequeathed are insufficient to pay the administration, funeral expenses, debts and estate taxes, the specific dispositions are subject to abatement to pay them." (Matter of Maron, 49 A.D.2d 244, 246, 374 N.Y.S.2d 200 [4th Dept. 1975]; 5 Warren's Heaton on Surrogate's Court Practice, 7th edition, [**5] § 68.04[9].)

The Surrogate bears the ultimate responsibility of deciding what constitutes a reasonable attorney's fee, irrespective of the existence of a retainer agreement. (Matter of Tendler, 12 AD3d 520, 784 N.Y.S.2d 604 [2d Dept. 2004].)

Additionally, "[i]n evaluating what constitutes a reasonable attorney's fee, factors to be considered include the time and labor expended, the difficulty of the questions involved and the required skill to handle the problems presented, the attorney's experience, ability and reputation, the amount involved, the customary fee charged for such services, and the results obtained." (Matter of Massey, NYLJ, 06/01/10 at 32 col. 5 [2d Dept. 2010]; Matter of Szkambara, 53 AD3d 502, 860 N.Y.S.2d 914 [2d Dept. 2008].)

The Court may also consider the custom and practice which obtains in the community with respect to such matters. (Matter of Smolley, 188 A.D.2d 535, 537, 591 N.Y.S.2d 441 [2d Dept. 1992].) The size of the estate is another factor to be considered. (Matter of Goliger, 58 AD3d 732, 871 N.Y.S.2d 689 [2d Dept. 2009].) "If the size of the estate is limited, compensation to an [executrix's attorneys] may be less than what the services would otherwise command." (In re Judicial Settlement of Second Intermediate Account of Chase Manhattan Bank [Matter of Dumont], 68 A.D.3d 1670, 893 N.Y.S.2d 406 [4th Dept. 2009] [**6] .)

Some thirty-five (35) years ago, the United States Supreme Court held that the minimum fee schedule published by the Fairfax County Bar Association violated Section 1 of the Sherman Act. (Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L. Ed. 2d 572 [1975], rehearing den'd 423 U.S. 886, 96 S. Ct. 162, 46 L. Ed. 2d 118 [1975]; 8 Warren's Heaton on Surrogate's Court Practice, 7th edition, § 106.03[1][d].) As a result of the Goldfarb decision, many Bar Associations discontinued the use of fee schedules. (8 Warren's Heaton, supra at 106-48.)

If you contract for services with a CPA and an Attorney to help you, make sure you understand that you are hiring licensed professional(s) to assist you who expect to be paid in a timely manner for services rendered. If you find yourself in a position where you are to be compensated for handling the affairs of closing out an estate, these professionals will assist you in determining what your reasonable compensation is for the work you have been chosen to do as per your loved one's will.

Did you even know it was permissible for you to be compensated for this type of work? Hmm... It's a lot of work... with serious issues... especially if the relatives start squabbling over money and disputing the valuations of possessions because they want more of what ever it is they want more of. Some relatives are even stupid enough to believe you shouldn't be paid for your time working on this project. Closing out an estate is time consuming so yeah, it's a major project...

Did I mention get an attorney, get an attorney, get an attorney?

Yup... I think I did...

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Comment balloon 6 commentsC Tann-Starr • June 27 2010 08:58AM
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