As parties prepare for trial before the Surrogate’s Court, a question that oftentimes arises is whether there is a right to a trial by jury. In this entry, Robert Harper explains why no such right exists in the case of proceedings concerning the removal of a fiduciary.
Continue Reading Jury Trials in Surrogate’s Court Removal Proceedings
Powers of attorney and trust instruments have each been the subject of many an estate plan. They each have also been the subject of multiple estate litigations. In combination, the two have served as fodder for controversies surrounding the agent’s authority over the trust and its terms. Two decisions — Matter of Goetz and Matter of Perosi v. LiGreci — have addressed the issue, albeit with different results. Both decisions provide valuable instruction for drafters and litigators. Ilene Cooper discusses these cases in our latest entry.
Continue Reading Lessons to be Learned From the Power of Attorney
An amendment to CPLR 4503(b) was recently signed into law, creating another exception to the attorney-client privilege. Ilene Cooper discusses the new legislation in our latest entry.
Continue Reading Recent Amendment Creates Further Exception to Attorney-Client Privilege
Many estate practitioners are familiar with contested matters in which a charity interested in the proceeding is cited, as is the Attorney General, and both the Attorney General and private counsel for the charity appear in the proceeding. In such cases, both the Attorney General and the charity’s counsel represent the charity. What happens, however, when the status and identity of the charitable beneficiary is less than certain? That was precisely the situation facing the New York County Surrogate’s Court in the probate contest involving the much-publicized estate of Huguette Clark. John Morken discusses this portion of the Clark case in our latest entry.
Continue Reading Representation of Charities by the Attorney General
While the Court of Appeals last year upheld the validity of contingency fee agreements in estate matters, particularly in litigation, where it approved contingency fees of over forty million dollars when the actual time spent was a fraction of that value, a recent New York County Surrogate’s Court case, Estate of Fanny Goldfarb, confirms that the size of an estate can still be a major factor in determining the reasonableness of a contingent fee, even though the services rendered and the result achieved were exemplary. Jack Barnosky discusses the decision in our latest post.
Continue Reading Contingency Fees – Size Matters
On October 28, 2014, the Court of Appeals rendered its long awaited decision in In re Lawrence, reversing the decision by the Appellate Division in which it was held that (1) a revised retainer agreement, under which the law firm received 40% of the net recovery (i.e. $44 million) was procedurally and substantively unconscionable and that fees should be determined under the original retainer; and (2) the claim to recover gifts made by the client to her attorneys was timely. Hillary Frommer discusses the decision in our latest entry.
Continue Reading In re Lawrence: What the Court of Appeals Says About Gifts from Client to Lawyer
While attorney’s fees incurred by the fiduciary are generally reimburseable from an estate as a reasonable and necessary expense of administration, this is not the rule with respect to the legal fees incurred by a beneficiary. The different standard that applies was recently examined by Surrogate Mella in In re Frey, NYLJ, July 25, 2013,
Generally, where an infant or someone under another disability is a necessary party to an action, it is the parent or guardian of the property who represents him in that action. If the disabled individual has no such guardian, then the court shall appoint a guardian-ad-litem to represent his interests (see CPLR 1201
In the recent case of Matter of Cheek, Surrogate Holzman of Bronx County addressed two issues that arise with some frequency in the context of Surrogate’s Court litigation – the validity of a decedent’s marriage, and a party’s attempt to vacate a stipulation of settlement. Jaclene D’Agostino discusses the decision in our latest entry.
Continue Reading Validity of Decedent’s Marriage the Focus of Application to Vacate Stipulation of Settlement
Last night, Congress passed the Middle Class Tax Relief Act of 2010, and it is anticipated that President Obama will sign this significant piece of legislation into law today. Its effects will include sweeping changes to the federal estate and gift tax. Jordan S. Linn provides a summary of those portions of the bill our most recent entry.
Continue Reading Farrell Fritz Estate and Gift Tax Alert: Breaking News