Opinion
No. 2011–963.
2012-04-17
Estate of Antonia COUTROS, Deceased.
Stephen H. Derderian, Esq., for Samuel Chororos, executor.
LEE L. HOLZMAN, J.
The executor seeks an order authorizing the payment of an infant's $5,000 testamentary bequest directly to the infant's mother in full satisfaction of the terms of the bequest under the will.
The decedent died on March 10, 2011and her will was admitted to probate by decree dated June 27, 2011. The will includes a bequest of $5,000 to the infant, the decedent's grand nephew, upon attaining the age of 25. The infant is approximately six years old. The infant resides in Greece with his mother. Article IV of the will, entitled “Executor Powers,” gives the executor the right to administer the estate using “informal,” “unsupervised” or 7F'independent probate or equivalent legislation” designed to operate without unnecessary intervention by the probate court.
In support of his petition, the executor notes that SCPA 2220(1) allows the payment of a bequest that does not exceed $10,000 to the parent of an infant. He notes that no guardian has been appointed for the infant in the United States or Greece, and the will does not designate a trustee or create a trust. Finally, he notes that EPTL 7–1.19 allows for the termination of uneconomical trusts in a manner that effectuates the intent of the testator.
Although the bequest to the infant when the infant reaches the age of 25 does not create a formal trust, and title to the funds vests in the beneficiary, the executor, as the donee of power during minority, is granted the authority to manage the infant's bequest during his minority (see SCPA 103[17]; Matter of Ruland, 18 Misc.3d 1136[A], 2008 N.Y. Slip Op 50331[U] [2008]; see also Matter of Zuckerman, 175 Misc.2d 974 [1998] ). As the donee of a power during minority, the executor is a fiduciary for the infant, and he is subject to the provisions of Article 10 of the EPTL and the Prudent Investor Act (see Matter of Ruland, 18 Misc.3d at 1136[A] citing, inter alia, EPTL 10–3.1[b]; 11–2.3[e][1] ).
Several Nassau County Surrogate's Court cases address the authority of a donee of a power to manage an infant's property, including the power to transfer the property to another under similar circumstances. In Matter of Zuckerman (175 Misc.2d at 975), although the court denied a request by a donee of power during minority to transfer infants' bequests to trusts for their benefit because the donee had no title which he could convey to the trustee, the court also noted that the donee's power to expend the property in a manner that will benefit the minor allows the donee, in the exercise of his discretion, “to pay the property to the minor's parent for the minor's benefit or to a custodian for such minor.” That case should be viewed in the context of the cases holding that the donee has the power and duty to apply or to pay over to the infant's parent sums necessary for the support, maintenance and education of the infant upon being satisfied of the reasonable need therefor (see Matter of Martin, 32 Misc.2d 555 [1961] ); cf. Matter of Toerge, 102 Misc.2d 592 [1980] [court noted if the parent was appointed legal guardian of the infant's property, the funds could be turned over to the parent in that fiduciary capacity].
In this case, the provisions of the will create a donee of a power during minority, and it appears to be in the best interests of the infant for the executor to exercise that power by paying the modest bequest to the infant's mother for the infant's benefit (see Matter of Zuckerman, 175 Misc.2d at 974;Matter of Martin, 32 Misc.2d at 555).
Accordingly, the application is granted in its entirety.
Submit order.